930 N.W.2d 393
Mich. Ct. App.2018Background
- On Oct. 28, 2014, John Pugno (invitee) was injured when a stack of three pallets of cardboard fell in Blue Harvest’s warehouse; he suffered serious injuries requiring hip replacement.
- The pallets had been stacked about a week earlier by owner Adam LaLone; stack reached ~14 feet and weighed ~1,000 lbs; LaLone later observed a cracked pallet but discarded it and used remaining boxes.
- Plaintiff sued for negligence and loss of consortium; plaintiff amended to plead both premises liability and ordinary negligence shortly before trial.
- Blue Harvest moved for summary disposition arguing the claim was premises liability and plaintiff had no proof of actual or constructive notice; the trial court denied summary disposition and allowed both theories to proceed.
- At trial the court gave res ipsa loquitur and spoliation (adverse inference) instructions; jury found Blue Harvest liable on both theories and awarded damages including $100,000 lost wages.
- On appeal the Court of Appeals held the complaint sounded exclusively in premises liability (so permitting both theories was error), but affirmed liability under premises-liability theory and upheld the res ipsa and spoliation instructions and damages award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff could proceed on both premises-liability and ordinary negligence theories | Pugno pursued both theories; argued conduct (stacking) supports negligence claim independent of premises theory | Blue Harvest: pleadings and facts only implicate condition of land; ordinary negligence claim should be dismissed | Court: complaint and facts sound exclusively in premises liability; allowing ordinary-neglect theory was error but harmless because premises theory supported verdict |
| Whether summary disposition was proper on premises-liability claim (notice/breach) | Pugno: LaLone created/stood in control of the condition; knowledge imputed; circumstantial evidence (stacking practices, expert) suffices | Blue Harvest: no evidence why pallets fell; possibly cracked pallet or accident; no proof of improper stacking or notice | Denied: genuine issues of material fact exist; notice imputed because possessor created condition; jury must decide breach |
| Whether res ipsa loquitur applies to a premises-liability case | Pugno: event, exclusive control, absence of plaintiff contribution, and defendant had better access to true explanation; spoliation magnifies inference | Blue Harvest: res ipsa inapplicable to premises claims; accident alone insufficient; vendors or cracked pallet could explain fall | Held: res ipsa may apply to premises-liability claims; elements met here (including spoliation supporting inference); instruction proper |
| Whether spoliation instruction / adverse inference was proper after defendant disposed of pallets | Pugno: Blue Harvest controlled and failed to preserve material evidence; jury may infer evidence would be adverse | Blue Harvest: disposal excusable or evidence not material; plaintiff had other evidence | Held: sanction appropriate; pallets were under defendant’s control, lacked reasonable excuse, and evidence was material; instruction within court’s discretion |
| Denial of emergency adjournment to secure treating physician witness | Pugno: plaintiff chose not to call doctor; records available; defendant failed to list witnesses | Blue Harvest: denied opportunity to cross-examine treating doctor; prejudice warranted adjournment | Held: denial not an abuse of discretion; defendant lacked diligence (no witness list) and had records; no demonstrated injustice |
| JNOV/remittitur on lost-wage award where plaintiff was later cleared for work and accepted retirement | Pugno: testified he could not return mentally/physically and only accepted retirement because of injury; lost wages supported by prior earnings evidence | Blue Harvest: medical clearance and retirement package undermine lost-wage award; damages excessive | Held: jury could credit plaintiff’s testimony; evidence supported $100,000 lost-wage award; JNOV/remittitur denied |
Key Cases Cited
- Lugo v. Ameritech Corp., 464 Mich 512 (Michigan Supreme Court) (premises-possessor duty to invitees)
- Lowrey v. LMPS & LMPJ, Inc., 500 Mich 1 (Michigan Supreme Court) (plaintiff must prove actual or constructive notice; knowledge imputed when possessor created condition)
- Woodard v. Custer, 473 Mich 1 (Michigan Supreme Court) (res ipsa loquitur standard and elements)
- Ward v. Consolidated Rail Corp., 472 Mich 77 (Michigan Supreme Court) (elements for drawing adverse inference from lost evidence)
- Brenner v. Kolk, 226 Mich App 149 (Michigan Court of Appeals) (spoliation sanctions standard)
- Laier v. Kitchen, 266 Mich App 482 (Michigan Court of Appeals) (distinguishing premises liability from ordinary negligence when independent conduct alleged)
- Zaremba Equipment, Inc. v. Harco National Insurance Co., 302 Mich App 7 (Michigan Court of Appeals) (presumption jurors follow instructions)