Froede v. Holland Ladder & Manufacturing Co.

523 N.W.2d 849, 207 Mich. App. 127

• Court: Michigan Court of Appeals
• Decided: October 3, 1994
• Docket: Docket No. 143336
• Status: Published

Opinions

Jansen, P.J.

In this products liability action, defendants appeal as of right from the order of the Oakland Circuit Court effectuating the jury’s verdict of $1.5 million in favor of plaintiffs. We reverse and remand for a new trial.

Plaintiff William Froede was injured in a fall from a ladder at a construction site where he was working for Great Lakes Construction Company. Plaintiff Liberty Mutual Insurance Company is Great Lakes’ worker’s compensation insurer. Defendant Holland Ladder & Manufacturing Company manufactured the ladder. Defendant National Ladder & Scaffold Company sold the ladder.

Defendants first argue that the trial court abused its discretion by denying their motion for a new trial based on evidence discovered after trial that juror Hilda Singleton-Luter misrepresented her status by failing to note on the written juror questionnaire that she was a convicted felon. We agree with defendants, but on the narrow facts of this case.

A motion for a new trial may be based on juror bias or misconduct. MCR 2.611(A)(1)(b). The decision whether to grant or deny a motion for a new trial on this basis is within the discretion of the trial court and will be reviewed on appeal for an abuse of discretion. Hunt v CHAD Enterprises, Inc, 183 Mich App 59, 63-64; 454 NW2d 188 (1990).

A juror is presumed to be qualified and competent. Id.; Poet v Traverse City Osteopathic Hosp, 433 Mich 228, 235-236; 445 NW2d 115 (1989). To rebut this presumption, the moving party must establish that it would have challenged the juror for cause or otherwise dismissed the juror had the truth been revealed before trial, or establish actual proof of prejudice on the part of the challenged juror. Hunt, supra, p 64.

Defendants contend that the juror in question was unqualified to serve as a juror because of her status as a convicted felon. Pursuant to the jury selection statute, a juror is qualified to serve if, among other things, not "under sentence for a felony at the time of jury selection.” MCL 600.1307a(l)(e); MSA 27A.1307(l)(l)(e). Pursuant to court rule, a party may challenge for cause a juror who "has been convicted of a felony.” MCR 2.511(D)(2). Neither the jury selection statute nor the court rule expressly mandates that a convicted felon be disqualified per se from sitting on a jury in a civil case.

The apparent nonconformity between § 1307a(l) (e) and MCR 2.511(D)(2) must be resolved by determining whether juror qualifications fall within the ambit of the Michigan Legislature’s mandate to enact substantive law or the Michigan Supreme Court’s mandate to establish general rules of practice and procedure. Where there is a conflict between a statute and a court rule, the court rule prevails if it governs practice and procedure. Const 1963, art 6, § 5; MCR 1.104; In re Hillier Estate, 189 Mich App 716, 719-720; 473 NW2d 811 (1991). It has been stated that juror qualifications are matters of legislative control. People v Merhige, 219 Mich 95, 97; 188 NW 454 (1922); People v Barltz, 212 Mich 580, 588; 180 NW 423 (1920); People v Legrone, 205 Mich App 77, 79-80, n 1; 517 NW2d 270 (1994) (dicta). This finding is further supported by United States v Dahms, 938 F2d 131, 134 (CA 9, 1991), which interpreted § 1307a(l)(e) to restore substantially and automatically a convicted felon’s right to serve as a juror following a period of suspension during incarceration.

Relying on a line of federal cases that have interpreted MCR 2.511(D)(2) and § 1307a(l)(e) as not restoring a former felon’s civil right to serve as a juror, defendants assert that once a trial court becomes aware of a juror’s prior felony conviction, it must dismiss the juror, whether the juror is still under sentence or not. United States v Metzger, 3 F3d 756 (CA 4, 1993); United States v Tinker, 985 F2d 241 (CA 6, 1992); United States v Gilliam, 979 F2d 436 (CA 6, 1992); United States v Driscoll, 970 F2d 1472 (CA 6, 1992). We disagree with this line of federal cases holding that a former felon’s civil right to serve as a juror is not restored once that felon is no longer under sentence.

The history of MCR 2.511(D)(2) has been stated in one treatise as follows:

[Subrule] (2) indicates that a juror is disqualified if the juror has ever been convicted of a felony. This subrule first appeared in GCR 511.4, and the committee note to it stated that it was inserted as a reflection that all jurors must possess good moral character. As all prior felons are no longer disqualified by MCLA 600.1301 et seq. [MSA 27A.1301 et seq.], and as Michigan has passed a Good Moral Character Act, MCLA 338.41 et seq. [MSA 18.1208(1) et seq.], the authors question the validity of the current prohibition. They suggest that the Supreme Court reexamine its position on this point. [3 Martin, Dean & Webster, Michigan Court Rules Practice, p 176, n 5].

We further find it notable that § 1307a of the jury selection statute was added in 1978, the same year that the Legislature enacted legislation that amended the definition of "good moral character” as used in various licensing acts and prohibited licensing boards and agencies from using a criminal conviction as the sole proof a person’s lack of good moral character. 1978 PA 294, MCL 338.41 et seq.; MSA 18.1208(1) et seq. The stated purpose of the act is "to encourage and contribute to the rehabilitation of former offenders and to assist them in the assumption of the responsibilities of citizenship . . . .” The act prohibits a licensing board or agency from using a judgment of guilt in a criminal or civil prosecution as the sole proof of an applicant’s lack of good moral character for the purpose of denying or revoking the applicant’s occupational or professional license. MCL 338.42; MSA 18.1208(2). The enactment of § 1307a and the licensing of former offenders act in the same year indicates a legislative intent to "remove barriers to the reintegration into society of former offenders.” Rios v Dep’t of State Police, 188 Mich App 166, 171; 469 NW2d 71 (1991).

Because § 1307a(l)(e) only requires that a potential juror not be under sentence for a felony at the time of jury selection and because juror qualifications are matters of legislative control, we hold that a former felon’s right to serve as a juror is restored once the sentence is completed.

The question remains whether a trial court has discretion to retain a convicted felon on a civil jury where a party challenges that juror for cause under MCR 2.511(D)(1) or (D)(2). While MCR 6.412(D)(2) requires that a trial court in a criminal case excuse a juror challenged for cause under any of the grounds listed in MCR 2.511(D), there is no similar requirement in a civil case. Indeed, we find that the existence of potential biases or prejudices of a juror with a prior felony conviction is substantially lessened in a civil case as opposed to a criminal case. Moreover, our Supreme Court has held that a trial court is required to excuse a juror only when the juror is challenged for cause on a ground enumerated in MCR 2.511(D)(4) — (D)(13). Poet, supra, p 236. Consistent with our holding that a convicted felon’s right to serve as a juror is restored upon completion of the sentence, we further hold that where a challenge for cause is timely made under MCR 2.511(D)(1) or (D)(2) and it is established that the juror does not satisfy one or more of the prerequisites under § 1307a, the trial court must excuse the challenged juror. However, where it is established that the prerequisites of § 1307a are satisfied and the juror does not exhibit biases or prejudices that would warrant excusal under MCR 2.511(D)(3) — (D)(13), the trial court has discretion to retain or excuse the juror.

In this case, juror Singleton-Luter was convicted of a felony in 1980 and sentenced to ten years’ imprisonment in the federal system. She was released from parole in June 1990. Because she was no longer "under sentence” at the time she was selected as a juror in March 1991, she was not disqualified per se from jury service. Therefore, defendants have failed to establish that they necessarily would have been successful had they challenged Singleton-Luter for cause at trial.

We must next determine whether defendants presented actual proof of prejudice on the part of the juror. MCL 600.1354(1); MSA 27A.1354(1); Hunt, supra, p 64. We find that, based on the narrow facts of this case, defendants have presented actual proof of prejudice and that defendants are entitled to a new trial on this basis.

There is no dispute that Singleton-Luter misrepresented her criminal history on the written questionnaire. Singleton-Luter misrepresented on the questionnaire that she had not been convicted of a felony, that she had not been incarcerated in a correctional institution, and that she had not been a defendant in a criminal trial. In fact, SingletonLuter and her ex-husband, Harold Morton (a notorious drug kingpin in the Harold Morton Organization), hired an assassin to kill a drug informant, Sandra Jones. Jones, who smuggled drugs for the Harold Morton Organization, had agreed to testify in a criminal trial against Morton. Jones was murdered in Los Angeles in December 1977 by Thornell McKnight, who had been hired by Singleton-Luter and Morton to kill Jones. Singleton-Luter ultimately pleaded guilty in federal court of conspiracy to violate civil rights and was sentenced to ten years’ imprisonment in October 1980. She was released from jail in 1985 and released from parole in June 1990.

In considering Singleton-Luter’s conviction and the circumstances surrounding that conviction, we find that defendants have presented actual proof of prejudice of the juror. Such a conviction could certainly reflect on the juror’s honesty, and, given the nature of the conviction, this juror may well have infected the jury’s deliberations. The juror’s honesty must be called into question because she deliberately misrepresented her status concerning her prior felony conviction on the juror questionnaire. Although we acknowledge that defense counsel did not read the juror questionnaires before voir dire, even if defense counsel had done so, Singleton-Luter’s answers would have reflected that she did not have a prior criminal record, and defense counsel would have had to rely on that statement as being truthful.

Accordingly, given the nature of juror SingletonLuter’s criminal conviction and her deliberate misrepresentation of her criminal history on the juror questionnaire, we find that defendants have presented actual proof of prejudice of the juror and, therefore, that the trial court abused its discretion in denying defendants’ motion for a new trial. We caution that our opinion is not to stand for the proposition that prejudice will always be found when a convicted felon makes a misrepresentation on a juror questionnaire or at voir dire. It is under the circumstances of the felony involved in this case, where the juror had a witness killed to prevent her from testifying, that we find actual proof of prejudice.

We also agree with defendants that the trial court abused its discretion in permitting plaintiffs to elicit testimony from an expert witness on cross-examination regarding the results of a survey on ladder accidents published by the Bureau of Labor Statistics. The survey evidence was irrelevant because the testimony in question did not concern accidents similar to the one at hand. The accidents in the survey concerned ladders that slipped, fell, or broke, while the accident in the instant case involved a ladder that sank. Accordingly, the survey evidence was not relevant, and should not have been admitted. MRE 401, 402.

We find no error with regard to the remaining issues presented by defendants, but we will briefly address them to avoid the duplication of error on retrial.

Defendants argue that the trial court abused its discretion in permitting plaintiffs to amend the complaint on the third day of trial to add a count of negligent failure to warn.

Leave to amend a complaint should be freely given when justice so requires. MCR 2.118(A)(2). This Court will reverse a trial court’s decision on a motion to amend a complaint only where the trial court abused its discretion. Price v Long Realty, Inc, 199 Mich App 461, 469; 502 NW2d 337 (1993). An amendment to conform to the proofs made during trial shall not be granted unless the party seeking to amend establishes that the amendment and the admission of the evidence would not prejudice the objecting party. MCR 2.118(C)(2). Here, the trial court noted that defendants had notice of plaintiffs’ claim of negligent failure to warn well in advance of trial, and the new claim could be inferred reasonably from plaintiffs’ allegations in the second amended complaint. See Winiemko v Valenti, 203 Mich App 411, 414; 513 NW2d 181 (1994). We find no abuse of discretion in the trial court’s conclusion that defendants were not prejudiced by the amendment.

Next, defendants contend that the trial court erred in denying their motion for a directed verdict based on the claim that the evidence presented did not support plaintiffs’ theory of failure to warn.

In reviewing the trial court’s denial of defendants’ motion for a directed verdict, this Court views the testimony and legitimate inferences drawn from that testimony in a light most favorable to the nonmoving party. Directed verdicts are appropriate only when no factual question exists upon which reasonable minds could differ. Brisboy v Fibreboard Corp, 429 Mich 540, 549; 418 NW2d 650 (1988). Defendants argue that the ladder was a "simple tool,” and that they were, therefore, not under a duty to warn of obvious dangers.

In the instant case, plaintiffs offered evidence that the practice of tying off the top of an extension ladder was common in the construction industry. Plaintiffs’ experts and defendants’ lock designer testified that such a practice is inherently dangerous with a gravity lock because it may disengage, causing the ladder to telescope. Additionally, this is a case concerning defective locks and not merely the ladder itself. Cf. Willard v Dore, 41 Mich App 508, 510; 200 NW2d 369 (1972). Although the ladder’s warning label did not specifically warn of the risks associated with such a practice, the label did instruct the user to tie off both the bottom and top of the ladder. Viewing the evidence in a light most favorable to plaintiffs, we find that sufficient evidence was presented to withstand a motion for a directed verdict relative to the claim based on the theory of negligent failure to warn.

Next, defendants claim that the trial court abused its discretion in allowing plaintiffs’ experts to testify that the ladder was a complex tool as opposed to a simple tool. Defendants did not object to this testimony at trial. Accordingly, the issue was not preserved for appellate review. MRE 103(a)(1).

Defendants also argue that the design defect was not the proximate cause of Froede’s injuries, because he never read the label. This issue is not properly before us, because defendants never argued this position below. We will, therefore, not review it. Booth Newspapers, Inc v Univ of Michi gan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993).

Defendants also argue that the trial court abused its discretion in failing to qualify their witness, Edwin Burdette, as an expert. A trial court has broad discretion regarding the qualification of an expert witness, and this Court will not reverse that decision absent an abuse of discretion. Mulholland v DEC Int'l Corp, 432 Mich 395, 402; 443 NW2d 340 (1989).

A witness may be qualified to give expert opinion testimony where the witness’ "skill, knowledge, training, experience, or education” will assist the trier of fact. MRE 702. Here, as a result of Burdette’s own assessment on direct examination that he was not an expert in ladder lock design, the trial court refused to allow defendants to elicit an expert opinion from him regarding the design of the lock in question. This was not an abuse of discretion. Further, notwithstanding the trial court’s ruling, defendants proceeded to elicit Burdette’s opinion of the ladder lock design on redirect examination. We find no error on the part of the trial court here.

Finally, we find no basis to defendant Holland Ladder’s claim that the trial court failed to instruct the jury that it must determine initially whether the ladder used by plaintiff Froede was in fact manufactured by it. The jury was so instructed during the court’s second charge.

Reversed in part and remanded for a new trial. Jurisdiction is not retained.