Danaher v. Partridge Creek Country Club

116 Mich. App. 305 (1982) 323 N.W.2d 376 DANAHER v. PARTRIDGE CREEK COUNTRY CLUB Docket No. 54789. Michigan Court of Appeals. Decided May 19, 1982. Lopatin, Miller, Freedman, Bluestone, Erlich & Rosen (by Steven G. Silverman), for plaintiffs. Tyler & Canham, P.C. (by James N. Canham and Michael J. Walter), for defendants. Before: N.J. KAUFMAN, P.J., and BASHARA and R.I. COOPER,[*] JJ. R.I. COOPER, J. On August 6, 1975, plaintiff Joseph O. Danaher went to the Partridge Creek Country Club at approximately 6:30 p.m. He had anticipated playing golf with his son. Upon arrival he decided to walk over to a pond located on the golf course premises. He entered the golf course premises through an open delivery gate and went across a large field to get to the pond. When he arrived at the pond he tossed bread crumbs into the water to feed the fish and in general was viewing the pond to see if it offered any fishing potential. While engaged in this activity he was struck by a golf ball which originated from the fifth tee. The pond was not visible to golfers using the fifth tee. Mr. Danaher had played the Partridge Creek Country Club course before and was an experienced golfer. As a result of the accident, *310 Mr. Danaher lost his right eye. He was hospitalized for 15 days and underwent an operation. Medical expenses were stipulated at $4,000 and his lost wages were stipulated at $1,875. Mr. Danaher's life expectancy was 18.97 years. In their complaint, plaintiffs asked for damages "not exceeding" $50,000 and $10,000 for Joseph O. Danaher and Theresa Danaher, respectively. Theresa Danaher is the wife of Joseph O. Danaher and sued for loss of consortium. There was a mediated recommedation of $10,000 which the plaintiffs accepted, but which the defendants rejected. At trial a jury returned a verdict of $1,000,000 in favor of plaintiff Joseph O. Danaher and $250,000 in favor of plaintiff Theresa Danaher. The jury found that Mr. Danaher was 39% comparatively negligent. The trial court thus reduced plaintiff Joseph O. Danaher's award by 39% but did not reduce the award to Theresa Danaher. Prior to commencement of the jury trial, plaintiffs were allowed to amend their complaint by removing the allegation that Mr. Danaher was a trespasser. At trial, the court did not allow disclosure to the jury of the fact that Mr. Danaher had originally alleged he was a trespasser. Also, the trial court did not allow reference to the clause by which plaintiffs asked for $60,000. Defendants sought an instruction based upon MCL 300.201; MSA 13.1485 to the effect that defendants could not be found liable unless there was a showing of gross negligence or wilful and wanton misconduct by the defendants. The trial court declined this request and instead instructed on ordinary negligence. Defendants seek to characterize plaintiff Joseph O. Danaher as a trespasser. MCL 300.201; MSA 13.1485 provides as follows: *311 "Sec. 1. No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee." The trial court was correct in its conclusion that said statute was not intended to apply to private lands which are used for outdoor recreational uses, but which also constitute commercial enterprises. A study of the available legislative committee notes and case law applying said statute clearly shows that the intent of the Legislature was to protect holders of private lands whose property, by its very outdoor nature, would be subject to use by members of the general public for recreational purposes but who did not seek or obtain permission to use such lands from the property owners. The statute was applied where a decedent was killed in a snowmobile accident when his snowmobile struck a guy wire on land owned by the Saginaw County Agricultural Society. Thomas v Consumers Power Co, 58 Mich App 486; 228 NW2d 786 (1975), aff'd in part and rev'd in part 394 Mich 459; 231 NW2d 653 (1975). See also Thone v Nicholson, 84 Mich App 538; 269 NW2d 665 (1978), lv den 405 Mich 819 (1979), where a plaintiff was injured when the motorcycle he was riding along an abandoned railroad right-of-way struck the bank of a creek which intersected the right-of-way. There the trial court also correctly applied said statute. See also Crawford v Consumers Power Co, 108 Mich App 232; 310 NW2d 343 (1981), where plaintiff's decedent was electrocuted when she *312 walked into a wooded area and came into contact with a downed electric wire. There the court also upheld in part defendant's motion for summary judgment and required that plaintiffs pursue only their claim for wilful and wanton misconduct. These cases clearly show that said statute has been applied consistently to vacant but privately owned land. It has not been applied to circumstances such as those in the present case, where the land is held out for a recreational use to those who pay a fee. It is clear that the character of the land is important and, in the present case, the trial court was correct in applying a standard or burden of proof that treated the plaintiff as a business invitee. Although plaintiff Joseph O. Danaher had not purchased the right to play golf that day, he was a golfer who was viewing the premises prior to a decision to actually play golf. There was no showing that he violated any no-trespassing signs or otherwise was located in an area that was not open to the general public. in fact there was testimony that children and observers also frequented the pond to retrieve and collect lost golf balls as well as to fish and sightsee. Thus, a successful argument could also have been made that the defendants would have been liable to persons visiting the pond as licensees. This Court has defined an invitee as one who is on the owner's premises for a purpose mutually beneficial to both parties. Socha v Passino, 105 Mich App 445; 306 NW2d 316 (1981), Kucken v Hygrade Food Products Corp, 51 Mich App 471; 215 NW2d 772 (1974). The duty which an occupier of land owes an invitee is to "exercise ordinary care and prudence to render the premises reasonably safe". Preston v Sleziak, 383 Mich 442, 447; 175 NW2d 759 (1970), quoting Cooley on Torts (1st ed), p 605. *313 A licensee is one who desires to be on the premises of another because of some personal unshared benefit and is merely tolerated on the premises by the owner. Socha, supra. The duty owed to a licensee as set forth in 2 Restatement Torts, 2d, § 342, p 210 and adopted by the Supreme Court in Preston, supra, 453, is as follows: "`A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, "`(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and "`(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and "`(c) the licensees do not know or have reason to know of the condition and the risk involved.'" There was ample testimony to show that plaintiff Joseph O. Danaher had come to the premises of the defendants for the purpose of exercising the right to golf as a business invitee and, further, that although he did not in fact exercise that right he also could have been described as a licensee, for the reason that defendant golf course was well aware that persons frequently visited the pond in question even though they were there for purposes other than golfing. Next the defendants argue that the jury verdict was clearly and grossly excessive thereby requiring either a new trial or, in the alternative, remittitur. Regarding plaintiff Joseph O. Danaher, the testimony reveals that his eyesight was important to him in his occupation as a weather stripper and *314 caulker. He has lost some of his depth perception. He has to exercise additional care in climbing up and down ladders. He is constantly afraid that his remaining good eye will be damaged. He suffers a visual defect in that there is a blank area on one side of his field of vision. He has to lubricate the artificial eye approximately four times a day. Initially he suffered infections in the artificial eye. Finally, he suffers from a fear that if he did lose his good eye he would be blind, could not hold a job, and would not be of any use to anyone. Regarding plaintiff Theresa Danaher, there was testimony to the effect that her husband has become more withdrawn, that he does not engage in as many social activities as he did prior to the accident. She has had to assist him in caring for his artificial eye and also suffers the new insecurities experienced by her husband. This Court is satisfied that the verdict regarding both plaintiffs was supported by the evidence at trial. In Stevens v Edward C Levy Co, 376 Mich 1, 5; 135 NW2d 414 (1965), the Supreme Court quoted Cleven v Griffin, 298 Mich 139; 298 NW 482 (1941), as follows: "`There is no absolute standard by which we can measure the amount of damages in personal injury cases. The amount allowed for pain and suffering must rest in the sound judgment of the triers of the facts. Watrous v Conor, 266 Mich 397 [254 NW 143 (1934)]; Weil v Longyear, 263 Mich 22 [248 NW 536 (1933)]. Courts are reluctant to disturb verdicts of juries for personal injuries on the ground that the amount is excessive. Cawood v Earl Paige & Co, 239 Mich 485 [214 NW 402 (1927)]. We do not usually substitute our judgment for that of the jury unless the verdict shocks the conscience or has been secured by improper means, prejudice or sympathy. Watrous v Conor, supra; Michaels v Smith, 240 Mich 671 [216 NW 413 (1927)].'" *315 In Pippen v Denison Division of Abex Corp, 66 Mich App 664; 239 NW2d 704 (1976), this Court quoted Stevens, supra, for the proposition that: "`As long as the amount awarded is within the range of the evidence, and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering, the verdict rendered should not be set aside.'" 66 Mich App 664, 675. In Pippen, the 67-year-old plaintiff lost an arm in an industrial accident. The jury returned a verdict of $1,250,000 for the plaintiff. This Court held that the amount was not excessive. Upon a review of the cases cited and the evidence submitted in the present case, this Court does not find that the award to either plaintiff shocks the conscience. The amounts of both awards are upheld. Next defendants argue that the verdict should not stand because it was in excess of the ad damnum clause. The case of Burnett v Mackworth G Rees, Inc, 109 Mich App 547; 311 NW2d 417 (1981), provides a pertinent analogy to our present case. In Burnett, 554-555, this Court stated: "Additionally, we note that Cutler-Hammer's arguments that the verdict should not stand because it was in excess of the ad damnum clause is not the rule in Michigan. GCR 1963, 518.3 makes it quite clear that this discrepancy is not fatal to a jury award. The rule states in pertinent part that `every final judgment shall grant relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings'. See also Piatkowski v Mok, 29 Mich App 426, 428; 185 NW2d 413 (1971), Gibeault v City of Highland Park, 49 Mich App 736, 738; 212 NW2d 818 (1973), aff'd 391 Mich 814 (1974), and see also Ravenis v Detroit General Hospital, 63 *316 Mich App 79, 86; 234 NW2d 411 (1975), lv den 395 Mich 824 (1976), where the Court allowed an award in excess of the ad damnum clause, where no amendment to the clause had been made. "Concededly, the majority in Tomei [v Bloom Associates, Inc, 75 Mich App 661; 255 NW2d 727 (1977)], stated that awards in excess of the ad damnum clause are not allowed unless there is proper amendment, which may be made after the verdict in the trial court's discretion. Tomei indicated that liberal amendment should be the rule unless a jury award is not supported by the evidence. Id., 672; see also Precopio v Detroit, 94 Mich App 506, 510-511; 289 NW2d 34 (1979). * * * "In the present case, although the ad damnum clause was apparently never amended, the purposes of such an amendment were met. The trial court considered and denied motions for judgment notwithstanding the verdict and for new trial or remittitur. Thus, the trial court fully explored the question of whether the award was supported by the evidence. To now reduce the award for plaintiff's failure to request post-trial amendment of the ad damnum clause would be an exaltation of form over substance. It is noteworthy that, as the court rules are now amended, a pleading need not demand a particular monetary award unless the opposing party requests specificity. GCR 1963, 111.1(3), 309. We believe that the award made was supported by the evidence." It is clear that the verdict was not such as to shock the conscience and that there was sufficient evidence to support the verdict reached. Based upon the above cited case law, the trial court did not err by refusing to limit the verdict to $60,000 or by refusing to order a new trial. Defendants argue that reversible error was committed by plaintiffs' attorney in that plaintiffs' attorney attempted to appeal to the sympathy of the jury. Plaintiffs' attorney argued as follows: *317 "[The law] says if you can't restore him to the condition he was, then he is to be compensated as much as you could possibly compensate for it in terms of dollars and cents for that loss. Frankly, if it were mine, I don't think — I wouldn't trade all that for anything. "So the fact is that it is an incredible position to place yourself in. How do you put a dollar and cents value on something like that? Is two million dollars too much? Is five million dollars not enough?" It is not error for the attorney for plaintiffs to make comments concerning pain and suffering and to urge that adequate damages be awarded. Retan v Lake Shore & M S R Co, 94 Mich 146; 53 NW 1094 (1892). Nevertheless, any attempt to appeal to the sympathy of the jury is improper. Clark v Grand Trunk W R Co, 367 Mich 396; 116 NW2d 914 (1962). The statement that "[n]obody would go through this pain and suffering for any sum of money" was held to be improper argument by the Supreme Court in Stone v Sinclair Refining Co, 235 Mich 53; 209 NW 118 (1926). Similarly, in Crenshaw v Goza, 43 Mich App 437; 204 NW2d 302 (1972), this Court held that reference by plaintiff's counsel to how much it would cost to hire someone to suffer what the plaintiff had suffered was improper as "[t]hat was not the issue before the jury". 43 Mich App 437, 446. However, a request for curative instructions or an objection to the instructions is necessary to preserve the issue of the propriety of a closing argument. Crenshaw, supra, Marr v Saginaw County Agricultural Society, 364 Mich 373; 110 NW2d 748 (1961). The defendants in the case at bar, having failed to do either, should not be allowed to obtain a new trial since an appropriate instruction would have cured the error in plaintiffs' counsel's closing argument. Further, defendants' *318 objection that plaintiffs' counsel improperly commented on matters not in evidence also has not been preserved for appeal as defendants did not object or request a curative instruction. Koepel v St Joseph Hospital, 381 Mich 440; 163 NW2d 222 (1968). Further, defendants also are not without error in that defendants improperly brought forth evidence as to the religious faith of plaintiffs. It is error to interject comments as to the religious creed of an opponent. Elliott v A J Smith Contracting Co, 358 Mich 398; 100 NW2d 257 (1960). Further, defendants contend that the trial court's instructions were incomplete, inaccurate, prejudicial, confusing and contradictory. However, defendants failed to preserve their objection by objecting at trial in a timely and specific manner. Where a party fails to so object, appellate review is precluded absent manifest injustice. Drouillard v Metropolitan Life Ins Co, 107 Mich App 608; 310 NW2d 15 (1981), Gage v Ford Motor Co, 102 Mich App 310; 301 NW2d 517 (1980). A review of the record, instructions and briefs reveals no manifest injustice in the instant case. Further, defendants argue that the court improperly commented upon the evidence. However, the court's comments were related to the portion of the jury instructions whereby the court read the theories of both parties to the jury. Upon review, this Court is satisfied that the trial court sufficiently communicated to the jury that it was reading the theories of the parties. The court has a right to point out to the jury that the evidence supports a particular theory. Rogers v Ferris, 107 Mich 126; 64 NW 1048 (1895). Defendants argue that the trial court incorrectly refused to submit a request for a special verdict submitted by defense counsel. In addition defendants argue that the trial court committed error *319 by failing to apply the 39% comparative liability of Joseph O. Danaher to the jury award to his wife, plaintiff Theresa Danaher. GCR 1963, 514 provides: "The court may require the jury to return a special verdict in the form of a special written finding upon each issue of fact and in such cases no general verdict shall be returned." The specific questions presented to the jury in this case were derived from the landmark case of Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), reh den 406 Mich 1119 (1979). The verdict form contained in the trial court record of this case reads as follows: "We, the jury, make the following answers to the questions submitted by the court: "1. Was the defendant negligent? "Answer: yes (Yes or No). (If your answer is `No', do not answer any further question.) "2. Was the defendant's negligence a proximate cause of injury or damage to the plaintiff? "Answer: yes (Yes or No). (If your answer is `No', do not answer any further question.) "3. What is the total amount of the plaintiff's damages? "Answer: $1,000,000.00 (Mr. Danaher) $250,000.00 (Mrs. Danaher). "4. Was the plaintiff negligent? "Answer: ____ (Yes or No). (If your answer is `No', do not answer any further question.) "5. Was the plaintiff's negligence a proximate cause of the injury or damage to the plaintiff? "Answer: yes (Yes or No). (If your answer is `No', do not answer any further question.) "6. If you find that the plaintiff was also negligent *320 and that his negligence was a proximate cause of his injury or damage, what percentage of the total occurrence is attributable to the plaintiff? "Answer: 39%. "_________ Foreperson." Although GCR 1963, 514 states that a general verdict shall not be returned where the verdict form provides for special written findings, here the trial court substantially followed the guidance provided in Placek v Sterling Heights, supra. The court supported its denial of the request for a special verdict when it observed that the case was not so complex that there would be a necessity to submit special findings of fact. This Court agrees with that conclusion. Next, this Court addresses the question whether the trial court improperly failed to apply plaintiff Joseph O. Danaher's 39% comparative negligence to the amount awarded to his wife. The trial court determined, as a matter of law, that the wife's recovery for loss of consortium was not to be reduced in proportion to the husband's degree of comparative negligence. This is a matter of first impression in Michigan. The landmark case of Bricker v Green, 313 Mich 218; 21 NW2d 105 (1946), clearly states that a husband driver's negligence shall not be imputed to his passenger wife absent any showing that she failed to exercise proper care and caution as a passenger. Thus, there is foundation for the conclusion that a husband's negligence may not be imputed to the wife. However, at the time of the Bricker decision, Michigan applied the concept of contributory negligence which would have totally barred any action by the administrator of the deceased husband's estate and the Court clearly felt that it *321 would not be proper to therefore also bar the husband's wife from being able to recover. Also, the Bricker case observed that Michigan, at that time, was the only state that imputed the negligence of the driver husband to his passenger wife. However, the present case rests upon the landmark Placek case which provides a different foundation of law based upon new concepts developed via stare decisis case law. This Court agrees that under the Bricker ruling it was often unfair that a passenger wife was not allowed to recover any damages due to the then applied concept of contributory negligence. However, under theories of comparative negligence, it would also be unfair for the defendant golf course in our present case to bear the entire burden of the wife's loss of consortium when there is a jury finding that the plaintiff husband was partially responsible for his own injuries, which then also resulted in a loss to his wife. It is a matter of fairness and logic that but for the comparative negligence of her husband, the plaintiff wife would not have suffered all of the loss of consortium established. Because Michigan has established an approach of pure comparative negligence, this Court feels it is consistent that the plaintiff wife's recovery take into consideration the source of her loss which also would include the negligence of her husband Joseph O. Danaher. It would be an unwise use of court time to require the defendant golf course to reimburse plaintiff Theresa Danaher in full and then to sue plaintiff Joseph O. Danaher to recover the proportion of recovery paid to Theresa Danaher based upon Joseph O. Danaher's 39% comparative negligence. In effect, plaintiff Theresa Danaher should not be expected to be able to recover full costs from defendants when it is clear that her co-plaintiff is *322 also partially responsible for the loss of consortium that she has suffered. Affirmed in part and reversed in part. N.J. KAUFMAN, J., concurred. BASHARA, J. (dissenting). I respectfully dissent. While I am in agreement with the majority's conclusions regarding loss of consortium, it is my belief that the record does not give rise to any facts that would lead a finder of fact to the conclusion that the plaintiff husband was anything but a trespasser at the time of the injury. It may have been his intention to purchase an admission ticket and play golf at a later time. The fact remains that he did not enter the premises through the normal point of entry. Nor did he make his presence known to any official of the golf club. Mr. Danaher should not be placed in the same category as children climbing over a fence to visit an attractive nuisance, such as a fishpond on a golf course. He was well aware of the purpose of the facility and knew that he was taking a risk which might injure him. Preston v Sleziak, 383 Mich 442; 175 NW2d 759 (1970), relied on by the majority, seems, instead, to preclude plaintiff from being a licensee on the premises. That case sets forth the requirement that the licensee have no knowledge of the condition and risk involved. Plaintiff clearly does not fit that mold. He had played golf at defendants' course several times and knew of the dangers inherent at the pond. I would, therefore, hold that plaintiff husband was a trespasser and reverse and remand for a new trial. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.