166 Mich. App. 716 | Mich. Ct. App. | 1988
Plaintiff filed suit against Advance Chemical Company and Frison Building Maintenance Company alleging that their negligence in manufacturing and applying a floor finishing product to the floor of her employer, Michigan Bell Telephone Company, caused her to slip and fall and sustain injury to her back. Plaintiff and defendant Advance settled before trial. The case against defendant Frison was tried to a jury in June, 1986. The jury returned a verdict of no cause of action. We reverse and remand for a new trial.
On January 18, 1982, plaintiff was working the afternoon shift at the northwest service center of Michigan Bell Telephone Company. As she returned from an area designated as "computer 4”
At trial there was conflicting testimony whether defendant was responsible for the ongoing maintenance of the floors in "A” Building at the time of plaintiff’s fall. There was no direct evidence presented that defendant or anyone else performed any specific operation upon the floor over the weekend in question. There was testimony that when the floors were stripped and waxed at the northwest service center they would be done on weekends.
The key issue on appeal was the trial court’s ruling, prior to commencement of the trial, to disallow the testimony as to test results of plaintiff’s expert witness, Dr. Joseph Ryan. The court granted defendant’s motion in limine, finding that the test conducted by Dr. Ryan was dissimilar to the conditions and procedures employed by defendant in applying the floor finish product and that such testimony would not assist the trier of fact.
The admissibility of expert testimony and test results on experiments performed by experts is a matter within the discretion of the trial court.' MRE 702. This Court will not reverse such a decision absent an abuse of discretion. Pelley v
"It is not necessary, however, that the conditions should be exactly identical, but a reasonable or substantial similarity is sufficient, and the lack of exact identity affects only the weight and not the competency of the evidence, provided always that there is such a degree of similarity that evidence of the experiments made will accomplish the desideratum of assisting the jury to an intelligent consideration of the issues of fact presented.” 22 CJ, p 759.
"This similarity need not be precise in every detail. It need include only those circumstances or conditions which might conceivably have some influence in affecting the result in question.” 1 Wigmore on Evidence, § 442.
"The facts need not be exactly or in every particular similar; if they are sufficiently similar to accomplish the purpose of assisting the jury to intelligently consider the issue of fact presented in regard to the special point in controversy, the evidence is admissible.” Atlanta [& WP] R Co v Hudson, 2 Ga App 352, 354 (58 SE 500) [1907]. [Smith v Grange Mutual Fire Ins Co of Michigan, 234 Mich 119, 126-127; 208 NW 145 (1926).]
It was the trial court’s opinion that the tests involved were so totally dissimilar to the conditions at the time of the fall that it would be "highly prejudicial” to admit the results of the test. In explaining why the three-year time differential between the accident and the test was immaterial, Dr. Ryan stated the following in his deposition:
*720 But more fundamentally the reason why it doesn’t make any difference is because the testing of the floor surface is not done on the vinyl. It’s done on the floor wax material which forms a film several thousandth’s of an inch thick which is then buffed to a relative hardness so that it has no influence, that is the wear of the tile has no influence at all on the results of the test.
Thus the test itself is conducted on the buffed floor wax material. Although there were some dissimilarities in the method of cleaning the floor and in the method of applying the wax, we believe there was enough evidence that the test bore a "reasonable or substantial similarity” to the actual conditions at the time of the accident for the testimony to be submitted to the jury. Smith, supra at 126. The testimony of David Frison, defendant’s founder and manager, was that a "thin coat of wax” was applied with a mop after the mop was squeezed in a mop ringer. He emphasized that the wax must be applied evenly and in a thin coat. Dr. Ryan’s method of applying the wax, by wiping it on with a cloth, would have provided only a thin coat.
In arriving at his conclusion that the floor was unacceptably slippery, Dr. Ryan made ten runs with his pull meter. In seven of those runs his meter readings were classified as slippery or relatively slippery. In three of those runs the friction level would have been classified as acceptable. The key difficulty in the testing method was that it was conducted according to plaintiff’s subjective recollection as to the shininess of the floor. The test was conducted at the spot in the floor where plaintiff recalled falling. After the floor was cleaned and the wax was applied, it was buffed to a level of shininess such as plaintiff recalled at the time of the initial accident. Dr. Ryan conceded
We reverse. When competent, material and relevant evidence on an essential issue has been excluded, when the party offering the evidence has received an adverse factual determination of the issue, and when consideration of the excluded evidence might have resulted in a different finding, this Court has held the exclusion to be error requiring reversal. Johnson v Detroit, 79 Mich App 295, 300; 261 NW2d 295 (1977).
We are aware of the recent case of Duke v American Olean Tile Co, 155 Mich App 555; 400 NW2d 677 (1986), in which this Court reversed a judgment for the plaintiff, in part, on the basis that expert testimony, crucial to plaintiffs case, was admitted although it lacked probative value. In that case the expert’s test was admitted although there was no foundation established that the test was conducted under substantially similar circumstances as the accident. The trial court’s ruling on the issue effectively placed the burden of proof on defendant to establish a dissimilarity. We reversed.
In the instant case, we believe the deposition
Given our present ruling, we do not address plaintiff’s other claim of error.
Reversed and remanded.