Defendants appeal as of right a judgment based upon a jury verdict awarding plaintiff $1 million on claims of breach of contract and negligence. We affirm.
On August 12, 1986, plaintiffs decedent, Jerry Hammack, a thirty-year-old mildly retarded, seizure-prone, developmental^ disabled man living in the Tracey Augustana Home (Home), died while bathing. Plaintiff alleged that Hammack drowned after having a seizure in the tub and that his death could have been prevented if defendant Veronica Keenan, an employee of the Home, had suitably monitored Mr. Hammack while he bathed. Pursuant to a contract with the State of Michigan, specifically the Wayne Community Living Services, defendant Lutheran Social Services of Michigan (lss) operated the Home. It was designed to provide a semi-independent living situation for developmental^ disabled individuals such as Mr. Hammack. Under the contract, lss agreed
[t]o deliver services in accordance with an individual plan of service for each recipient as developed by the agency, or the agency designated client services management agency, in consultation with the licensee [defendant].
Mr. Hammack’s Individual Plan of Service (ips) was developed with an eye toward increasing his independence. Accordingly, the ips provided that Mr. Hammack could be left alone and unsupervised for up to five hours a day. A Nursing Health Care Plan (nhcp) was attached to Mr. Hammack’s ips and was thought by some of both parties’ witnesses to be incorporated in the ips. The nhcp contained directions for intervention and care of Mr. Hammack during his seizures, some of which occurred as recently as 1985 and the summer of 1986. The nhcp also stated that Mr. Hammack *4 should not be left alone while bathing because of his past seizure activity.
Defendants argue that the trial court erred in denying their motion for summary disposition based on the claim that, as a matter of law, they owed no duty to monitor Mr. Hammack while bathing. We disagree.
In order to assert negligence, a plaintiff must establish the existence of a duty owed by the defendant to the plaintiff.
Douglas v Elba, Inc,
In their brief on appeal, defendants acknowledge that a special relationship existed between lss and Mr. Hammack. In making this concession, defendants acknowledge that Mr. Hammack "entrusted himself to the control and protection of defendant.”
Dykema v Gus Macker Enterprises, Inc,
Defendants further argue that the trial court erred in denying their motion for a directed verdict on the premises liability claim regarding the lack of monitoring devices in the bathroom. We disagree.
As was the case with the first issue, the initial question here, whether defendants owed a legal duty to plaintiff, must be decided by the trial court as a matter of law.
Riddle v McClouth Steel Products Corp,
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care *6 would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Accordingly, the invitor must inspect the premises to discover any possible dangerous conditions of which the invitor is not aware and take reasonable precautions to protect the invitees from dangers that are foreseeable from use.
Thompson v Essex Wire Co,
Arguing in support of their motion for a directed verdict at trial, defendants claimed that the absence of monitors, alarms, or walkie-talkies in the bathroom was not a condition from which an unreasonable risk of harm could be anticipated. Alternatively, they claimed that the dangerous condition was obvious. The trial court ruled that "whether or not there would be an unreasonable risk of harm” from the lack of monitoring devices was a factual question. The trial court properly submitted this question to the jury. Because the nhcp contained a precaution against Mr. Ham-mack bathing unsupervised, the danger of him using the bathtub was foreseeable, requiring defendants to take reasonable precautions. Thompson, supra. Regarding the issue whether this risk was open and obvious, thus precluding the creation of *7 a duty, the trial court correctly found that it was a factual question for the jury.
Defendants further argue that the trial court erred in concluding that the question whether plaintiffs decedent was ¿ third-party beneficiary of the contract was a factual question. They argue that the matter was a question of law for the court to determine. However, defense counsel failed to object to the trial court’s determination regarding this issue. Accordingly, we conclude that this issue has not been preserved for appeal.
Booth Newspapers, Inc v Univ of Michigan Bd of Regents,
Even if the issue had been preserved, any error was harmless because, as a matter of law, Mr. Hammack was ascertainable as the beneficiary of the contract pursuant to MCL 600.1405(2); MSA 27A.1405(2), and the jury found him to be a beneficary. We find this case distinguishable from
Frick v Patrick,
Defendants also argue that the trial court’s prohibition of certain testimony effectively precluded them from presenting a defense to plaintiffs contract claim. This argument was not raised in the statement of the questions presented and, therefore, review is inappropriate.
Orion Twp v State Tax Comm,
Defendants argue that the trial court erred in failing to grant their motion for a directed verdict on grounds that plaintiffs evidence did not show that the failure to monitor was the proximate cause of Mr. Hammack’s death. We note that defendants argued below only that proximate cause was lacking with regard to the premises liability claim. They did not argue that plaintiff presented insufficient evidence of proximate cause regarding the contract claim. Accordingly, the argument with regard to the contract claim is not preserved for appellate review.
Scott v Jones & Laughlin Steel Corp (On Remand),
The present case is distinguishable from the recently decided case of
Garabedian v Beaumont Hosp,
Defendants also contend that improper statements by plaintiffs counsel prejudiced the jury and diverted the jury’s attention from the merits of the case. We disagree.
With regard to the three occasions during the trial in which questioning of defense witnesses by plaintiffs counsel implied that defense counsel was directing their testimony, we have reviewed the challenged comments and have found that they were cured by instructions from the court and did not deny defendants a fair trial. A review of the record does not support a finding that the three instances indicate a deliberate course of conduct aimed at preventing a fair and impartial trial, nor were the comments such that they deflected the jury’s attention from the issues involved.
Wilson v General Motors Corp,
Defendants also assert that plaintiff’s counsel improperly introduced the subject of insurance. We note that the trial transcript is unclear regarding what actually happened, and defendants failed to make a detailed objection on the record. Defendants’ motion for a mistrial also did not describe the actions of plaintiffs counsel. There was no express reference to insurance by plaintiffs counsel, and counsel for all parties admit being uncertain whether the jury could see the physical reference to insurance when plaintiff’s counsel waved the folder labeled "Insurance.” Under these circumstances, it would be a matter of speculation that the jury even knew of insurance. Accordingly, we find that the trial court acted well within its *10 discretion in handling the matter. The trial court was clearly in a much better position to evaluate this matter and acted appropriately, given the court’s discretion in these matters.
Finally, defendants argue that the trial court erred in failing to give the appropriate special verdict form, SJI2d 66.01A. Defendants assert that the form used by the trial court did not differentiate between past and future damages and that, accordingly, it is impossible to determine what portion of the damages should be reduced to present value.
To preserve an instructional issue for appeal, the objection must specifically state the objectionable matter and the ground for the objection. MCR 2.516(C);
Cornforth v Borman’s, Inc,
Affirmed.