Moskalik v. Dunn

221 N.W.2d 313, 392 Mich. 583, 1974 Mich. LEXIS 196

• Court: Michigan Supreme Court
• Decided: September 6, 1974
• Docket: 6 May Term 1974, Docket No. 54,954
• Status: Published

Opinions

Levin, J.

Our colleagues declare that a trial judge, who decides to instruct a jury on a matter the Standard Jury Instruction Committee recommends no instruction be given, errs reversibly if he fails to comply with GCR 1963, 516.6(3), requiring that the judge, in such case, specifically find for "reasons stated on the record that (a) such an instruction is necessary to state accurately the applicable law and (b) the matter is not adequately covered by other pertinent Standard Jury Instructions”.

I

Trial judge failure to comply with a court rule is not per se reversible error unless it is so offensive to the maintenance of a sound judicial process that it can never be regarded as harmless or the court decides, for prophylactic reasons, to require undeviating compliance with a particular rule. Otherwise, absent prejudice suffered by the complaining party attributable to the failure to observe the rule, reversal is not appropriate. Any other approach to our reviewing responsibility would manifestly be unworkable.

Our colleagues do not predicate their, opinion for reversal on the oifensiveness of the judge’s departure from the rule or on prophylactic grounds. On the contrary, they declare "that in future cases failure to object to the trial court failure to follow the Standard Jury Instructions and GCR 1963, 516.6, will generally be held dispositive precluding the raising of this issue on appeal. GCR 1963, 516.2.”

While the Court of Appeals, in an unpublished opinion, reversed because the judge gave an improper charge,¹ our colleagues expressly decline to consider the "substantive adequacy, accuracy, or necessity of this instruction”. Thus, they do not predicate their opinion for reversal on a conclusion that the instruction was erroneous and prejudicial. Cases where defects of fundamental importance in the conduct of a trial, although not properly preserved, were recognized out of concern that a party may have been deprived of a fair trial are, accordingly, not in point.

To reverse and order a new trial simply because the case involves an issue which, if the Court ignores the failure to preserve the issue, becomes one of first impression strikes me as disproportionate.

While courts sometimes, although limiting the retroactivity of a new pronouncement, grant to the successful litigant the benefit of the decision as a reward for advancing the issue and as. encouragement to others to press for reform of the law, our colleagues’ opinion here is neither prospective nor retroactive — it applies to this case only. In sum, they declare that trial judge failure to comply with Rule 516.6(3) is reversible error; but in future cases, in general, such error will not be recognized if the appellant does not object; however, in this case a new trial will be ordered although appellant did not preserve the issue.

While we have, perhaps too frequently, departed from the no objection/ no ruling/ no error formulation, it is still not remarkable for an appellate court to refuse to entertain assignments of error not properly preserved. The plaintiffs in this case would not be rewarded with the benefit of the pronouncement in our colleagues’ opinion, but with an exception to it.

II

Rule 516.6(3) provides that although the Standard Jury Instructions recommend that no instruction be given on a certain matter, the judge may, in a proper case, instruct if "necessary to state accurately the applicable law”.

It is, therefore, necessary to advert to the merits, as did the Court of Appeals, to determine whether the instruction was so clearly wrong that, even though no objection was voiced, plaintiffs were deprived of a fair trial.

The defendant bar owner was confronted with a sudden emergency when armed gunmen entered his establishment. The pertinent law, as stated by still current and respected authority:

"If a person is caught in a sudden emergency, that is part of the circumstances in the light of which his conduct at that time is to be judged. And if the situation is one which would disturb the judgment of the standard man, that fact is to be considered. The test is whether the actor took one of the courses of action which a standard man in that emergency might have taken, and such a course is not negligent even though it led to an injury which might have been prevented by adopting an alternative course of action.” 2 Harper & James, Law of Torts, § 16.11, pp 938-939.

"In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.” Restatement Torts, 2d, § 296, p 64.

Similarly, see Prosser, Torts (4th ed), § 33, p 168; 57 Am Jur 2d, Negligence, §90, pp 437-438; 65 CJS, Negligence, § 17, pp 603-614; 18 Michigan Civil Jurisprudence, Negligence, § 5, pp 198-200.

Michigan case law is in accord.² I agree that we should defer consideration, until a case where the issue is properly preserved and presented, of whether it would be better policy not to instruct at all on this issue to avoid undue emphasis on but one of. the factors to be considered by the jury in deciding whether the actor measured up to the law’s standard of care. Before deciding that question we might benefit from a more comprehensive statement of the views of the SJI Committee and other amici. For this case, it is enough to say that the instruction was, in general, in accordance with the law.

Ill

The instruction was, indeed, erroneous to the extent it stated that an actor confronted with a sudden emergency "is not held to the same standard of care”. The standard of care to be observed by one in an emergency situation is no different than the standard of care to be observed generally. The inquiry is whether the person acted as would a reasonably prudent person under" the same or similar circumstances. The existence of an emergency is but one of the factors to be taken into consideration.

However, in the very next sentence the judge correctly stated, "[H]e must exercise such care as the reasonable person would exercise under those circumstances”. It is unlikely that the error in the instruction was a source of confusion or misled the jury.

The instruction was requested by defendant’s counsel in writing in advance. Plaintiffs’ counsel did not object before the jury was instructed, nor did he object, when asked, after the instructions were given.

The requirement of a timely objection is not an arbitrary one. Its purpose is to avoid improper instruction and, if perchance an improper instruction which can be corrected has been given, to facilitate its correction before verdict, thereby avoiding costly new trials. The defect in the instruction was not of such magnitude as to constitute plain error requiring a new trial without regard to the failure to bring it to the attention of the judge.

The Court of Appeals is reversed. The jury’s verdict is reinstated.

T. G. Kavanagh, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred with Levin, J.

1 The Court of Appeals declared:

"The confusing and clearly erroneous charge given by the trial judge in this case illustrates the reason for the recommendation of the committee. This is not to say that a judge should never give an instruction as to the standard of care required in the face of imminent peril. It is the task of the trial judge to determine the proper instructions to be given to a jury, depending upon the contentions and proofs in the particular case and the need to instruct the jury with regard to the same. In general, the recommendations of the Committee on Standard Jury Instructions should be followed. GCR 1963, 516.6(3). In this case, the trial court erred reversibly by giving an improper charge.” Moskalik v Dunn, (Court of Appeals Docket No. 13119, decided March 1, 1973 [unreported]).

2 Schow v Paugh, 350 Mich 304, 308; 86 NW2d 261 (1957); Pampu v Detroit, 315 Mich 618, 624-625; 24 NW2d 588 (1946); Myler v Bentley, 226 Mich 384, 386; 197 NW 521 (1924).