Kirk v. Ford Motor Co.

383 N.W.2d 193, 147 Mich. App. 337

• Court: Michigan Court of Appeals
• Decided: December 2, 1985
• Docket: Docket 63576
• Status: Published

Opinions

D. E. Holbrook, Jr., P.J.

This action arises from a wrongful death action filed by the administrator of the estate of Timothy Kirk against Ford Motor Company alleging that the negligent design and placement of the gas tank resulted in fatal burn injuries when the automobile which Timothy Kirk was driving was involved in an accident. After a two-month jury trial, a verdict of $3,500,000 was returned in favor of plaintiff. Since the jury also found decedent to be ten percent negligent, the award was reduced to $3,150,000. Defendant is appealing as of right and alleges that numerous errors in the admission and exclusion of evidence and arguments of plaintiffs counsel require reversal.

Defendant first argues that it should have been allowed to utilize a jury instruction which stated in part that:

"If you find that a reasonably prudent driver would have used a seat belt, and that he would not have received some or all of his injuries had he used the seat belt, then you may not award any damages for those injuries you find he would not have received had he used the seat belt. The burden of proving that some or all of Mr. Kirk’s injuries would not have been received had he used the seat belt rests upon the defendant.

"Therefore, if you find that the decedent was negliegent for not using the seat belt and if you find that plaintiffs decedent’s non-use of a seat belt contributed as a proximate cause to his death you will consider this non-use of the seat belt as comparative negligence on the part of plaintiffs decedent.”

Extensive argument and briefs have been filed with this Court regarding this instruction. While the instant case has been pending before this Court, other panels have held that the seat belt defense was not available in Michigan. Schmitzer v Misener-Bennett Ford, Inc, 135 Mich App 350, 358-360; 354 NW2d 336 (1984), and DeGraaf v General Motors Corp, 135 Mich App 141; 352 (1984). We are aware that the Legislature has recently required the use of seat belts and provided for a limited mitigation of damages for the failure to wear seat belts. 1985 PA 1, MCL 257.710e et seq.; MSA 9.2410(5) et seq., effective July 1, 1985. However, this legislation is not retroactive. As the accident and trial occurred long before the effective date of the passage of this act, we do not find the new legislation to be controlling. Accordingly, for accidents that occurred prior to July, 1985,

"We conclude that under our system of comparative negligence, evidence of a plaintiffs failure to use a seat belt is not admissible as evidence of plaintiff’s contributory negligence or of plaintiff’s failure to mitigate damages.” Schmitzer, supra, pp 359-360.

Thus we find no eror in the trial court’s refusal to give a jury instruction regarding the seat belt defense at the time of the trial.

Defendant contends that the trial court abused its discretion in admitting into evidence proposed government standards of crashworthiness that were never adopted. As the standards were not in effect at the time of the accident, defendant states that MCL 600.2946; MSA 27A.2946 prohibits their admission. Without deciding the merits of that particular argument, we hold that that statute only applies when such evidence is offered for the purpose of proving liability. These standards were not introducted to show that defendant was liable for failure to comply with them, rather they are relevant to show why, after testing and design of vehicles which would meet these standards, defendant abandoned its attempt at providing a safer over-the-axle fuel tank location. The proposed standards were not admitted as exhibits.

We find that this evidence was relevant and therefore was admissible.

"This Court will not reverse a trial judge’s determination that the prejudicial effect of evidence outweighs its probative value or his decision that certain proffered evidence is not relevant unless we are convinced that the judge’s rulings in these matters amount to an abuse of discretion. See Aetna Life Ins Co v Brooks, 96 Mich App 310; 292 NW2d 532 (1980), Jarecki v Ford Motor Co, 65 Mich App 78; 237 NW2d 191 (1975).” Keefer v C R Bard, Inc, 110 Mich App 563, 568; 313 NW2d 151 (1981).

Ford argues that the introduction of evidence regarding defects which were not related to the particular cause of the accident constituted error. We disagree. This action was based on plaintiffs claim that the fuel tank design was defective. As defendant had no duty to produce a crash-proof automobile, Rutherford v Chrysler Motors Corp, 60 Mich App 392; 231 NW2d 413 (1975), and Dayhuff v General Motors Corp, 103 Mich App 177, 181; 303 NW2d 179 (1981), lv den 412 Mich 914 (1982), it was imperative that plaintiff demonstrate that this was not the only circumstance in which the fuel system design would result in injury or death. Additionally, the design of the auto as a whole had to be ascertained. We find no error in the trial court’s decision. Muniga v General Motors Corp, 102 Mich App 755, 761; 302 NW2d 565 (1980).

Defendant contends that the crash-test evidence, consisting of reports, films and photos, was inadmissible because plaintiff did not prove that the tests were conducted under conditions substantially similar to those involved in the accident.

"In order for results obtained in out-of-court experiments to be admissible in evidence, the conditions of the experiment must be sufficiently similar to those involved in the particular case. The decision to admit experimental test results rests within the trial court’s sound discretion.” Przeradski v Rexnord, Inc, 119 Mich App 500, 506; 326 NW2d 541 (1982). (Footnotes omitted.)

However, this evidence did not purport to have been conducted under similar conditions, rather it was to illustrate certain general principles.

"Where motion pictures are offered to recreate the scene of an accident, they are not admissible unless they portray conditions almost identical to those prevailing at the time of the accident itself. Green v General Motors Corp, 104 Mich App 447, 449; 304 NW2d 600 (1981). On the other hand, where a film is not offered for the purpose of duplicating or recreating an accident, but instead merely to illustrate certain general principles, differences in surrounding conditions are less relevant and do not require the film’s exclusion. Id.” Gorelick v Dep’t of State Highways, 127 Mich App 324, 336; 339 NW2d 635 (1983).

Plaintiff was attempting to illustrate the vulnerability of under-the-floor fuel tanks in rear-end collisions and to establish defendant’s negligence in the design. Since this evidence showed generalities rather than a specific instance, we find no error in its admission.

"As a general rule, a trial court has broad discretion in ruling on the relevancy of evidence submitted at trial, Wilson v W A Foote Memorial Hospital, 91 Mich App 90, 96-97; 284 NW2d 126 (1979), Orquist v Montgomery Ward, 37 Mich App 36, 41; 194 NW2d 392 (1971). This Court will not reverse a trial court’s decision absent an abuse of discretion. Wilson, supra, 97.” Muniga, supra, p 761.

Defendant has made a blanket objection to the admission of documents given by Ford to plaintiff pursuant to a discovery order, on the grounds that $hey are hearsay. These documents are numerous, yet defendant has argued in this appeal its objections as to the documents without specificity. Specific objections to specific documents must be raised by counsel via appellate brief for us to consider such objections. It is for counsel to point out specific errors to this Court. Couple-Gear Freight Wheel Co v Lake Shore & M S R Co, 196 Mich 429, 433-434; 163 NW 25 (1917). "Failure to object specifically and for proper reasons to the admission of evidence precludes appellate review unless there is manifest injustice.” George v Travelers Indemnity Co, 81 Mich App 106, 116; 265 NW2d 59 (1978).

Ford alleges that the trial court abused its discretion in permitting rebuttal testimony. Our review of the record reveals that decedent’s contributory negligence was at issue. Defendant introduced evidence and testimony to show that decedent was at fault for the accident. Plaintiff then produced a rebuttal witness to testify that steering problems were common to the type of car in question and to introduce the psossibility of a defect as the cause of the accident.

"The rule of rebuttal evidence is stated in People v Utter, 217 Mich 74, 83; 185 NW 830, 833-834 (1921):

" 'Rebuttal evidence is broadly defined as that given by one party to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same. In paractical application the line of demarcation between rebuttal evidence and that which should properly be given in chief before the prosecution rests is frequently more or less obscure, and it is a general rule that whether evidence which could have been offered before resting may be given in rebuttal is a matter within the discretion of the trial court.’

"See also Litle v Grieve, 25 Mich App 107; 181 NW2d 5 (1970); Gonzalez v Hoffman, 9 Mich App 522; 157 NW2d 475 (1968).” Barrows v Grand Rapids Real Estate Board, 51 Mich App 75, 97; 214 NW2d 532 (1974).

While this testimony might have been more properly presented in plaintiff’s case in chief, we cannot say that the trial court abused its discretion in permitting such testimony. As the jury did deduct ten percent of the award for decedent’s negligence, we believe any error was harmless, GCR 1963, 529.1, and that no manifest injustice occurred.

Defendant addditionally contends that its motion for remittitur or for a new trial should have been granted as the damage award was excessive, contained punitive damages, and was influenced by passion, prejudice and sympathy as well as being enhanced by errors in the proceedings. We do not agree.

The decedent’s siblings are entitled to damages for loss of companionship even when the person is survived by parents or a spouse. Crystal v Hubbard, 414 Mich 297; 324 NW2d 869 (1982).

Defendant in the instant case has argued as did the defendant in May v Grosse Pointe Park, 122 Mich App 295, 297; 332 NW2d 411 (1982):

"On appeal, defendant first alleges that the verdict was excessive and influenced by passion or prejudice and that the trial judge abused his discretion in denying the motion for new trial or remittitur. The appropriate standard of review is the 'shock the judicial conscience’ standard. Burnett v Mackworth G Rees, Inc, 109 Mich App 547; 311 NW2d 417 (1981). If the amount awarded does not 'shock the judicial conscience’, the trial judge has not abused his discretion in denying the motion for a new trial or remittitur.”

This Court went on to say that:

"The wrongful death act provides for compensation for the loss of society and companionship. Bradfield v Estate of Burgess, 62 Mich App 345, 350-351; 233 NW2d 541, 544 (1975). Just as no marketplace formula exists to mathematically calculate pain and suffering, no precise formula exists for the loss of society and companionship. Those determinations are for the jury, and a reviewing court will not arbitrarily substitute its judgment for that of the factfinder. Brown v Arnold, 303 Mich 616, 627; 6 NW2d 914, 918 (1942). Furthermore, placing a monetary value on a human life is at best a nebulous decision-making process which does not lead itself to an exacting type of review.” May, supra, p 298.

See also Cryderman v Soo Line R Co, 78 Mich App 465; 260 NW2d 135 (1977), lv den 402 Mich 867 (1978). The amount of the jury award of over $3 million for the loss of society and companionship of a 19-year-old son and brother is within the limits of what reasonable minds might deem just compensation. We cannot say that the trial judge abused his discretion.

Defendant has also argued that it was reversible error not to instruct the jury on the income tax consequences of an award. While this allegation may have some merit in federal cases, Michigan law does not require this. The majority view is not to discuss taxes with the jury. Anno., Propriety of Taking Income Tax into Consideration in Fixing Damages in Personal Injury or Death Action, 63 ALR2d 1393, 1408, and Grant v National Acme Co, 351 F Supp 972 (WD Mich, 1972).

"Defendant also specifically objects to the court’s refusal to instruct the jury as to the tax consequences of any damage award. The law is clear that such an instruction is within the trial court’s discretion. Indeed, the majority view apparently favors withholding all reference to income tax consequences.” Grant, supra, p 979.

The trial court was correct in refusing to instruct the jury on exemplary damages. King v General Motors Corp, 136 Mich App 301; 356 NW2d 626 (1984).

Defendant alleges that plaintiff’s counsel improperly inflamed the passions of the jury and attempted to influence the jury to impose punitive damages. Our review of the transcript reveals that defendant did object four times during plaintiff’s closing argument and over 30 allegations of error are listed in its appeal. While defendant did not make a motion for a mistrial or a curative instruction, which is generally required before we will review on appeal, this requirement is not immutable.

"* * * a litigant has no right to appellate review unless he has requested a curative instruction or made a motion for mistrial. Nevertheless, the rule is not an absolute bar to review, for it does not preclude an appellate court from correcting substantial errors which were not preserved in the trial court.

"Our prior cases have clearly stated that incurable errors are not shielded from appellate review because an attorney fails to request what in that case would be a futile instruction.” Reetz v Kinsman Marine Transit Co, 416 Mich 97, 100-101; 330 NW2d 638 (1982). (Footnotes omitted.)

While we agree that plaintiff’s counsel’s remarks were improper, we feel that such error was curable. In the instant case, the trial court gave a sua sponte curative instruction. This instruction was identical to that given in Belue v Uniroyal, Inc, 114 Mich App 589, 596-597; 319 NW2d 369 (1982):

"Any alleged prejudicial effect of the argument in question was further eliminated by the trial court’s instruction to the jury that: 'Arguments, statements, and remarks of attorneys are not evidence, and you should disregard anything said by an attorney which is not supported by the evidence or by your own general knowledge and experience.’ See, e.g., Dalm v Bryant Paper Co, 157 Mich 550; 122 NW 257 (1909).”

We fail to find that any substantial prejudice resulted; any error in the argument was rendered harmless. While defendant may have been entitled to a more specific curative instruction, failure to request it precludes reversal. Kinsman Marine Transit, supra, and Koepel v St Jospeh Hospital, 381 Mich 440; 163 NW2d 222 (1968).

While we agree that awarding damages solely to punish defendant is prohibited in Michigan, Willett v Ford Motor Co, 400 Mich 65; 253 NW2d 111 (1977), we are not convinced that such damages were included in the award. The jury was instructed properly as to what to include in their award and punitive damages were not an element. We will not upset the trial court’s decision on the mere speculation that the trial court disregarded the curative instruction.

Affirmed. Costs to appellee.

Wahls, J., concurred.