                          STATE OF MICHIGAN

                            COURT OF APPEALS



SUSAN SCHMUNK,                                                       UNPUBLISHED
                                                                     March 20, 2018
               Plaintiff-Appellee,

v                                                                    No. 334321
                                                                     Wayne Circuit Court
OLYMPIA ENTERTAINMENT, INC.,                                         LC No. 14-005945-NO

               Defendant-Appellant.


Before: K. F. KELLY, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

      In this negligence action tried before a jury, defendant appeals as of right a final
judgment in favor of plaintiff.

                                        I. BASIC FACTS

        Plaintiff was at a college hockey tournament at the Joe Louis Arena on March 23, 2013
when she tripped and fell over a dolly that was being pulled by one of defendant’s employees,
Darrin Schultz. Defendant provides concession services. The trial court concluded that
plaintiff’s claim sounded in ordinary negligence, not premises liability. It also concluded that a
question of fact existed as to Schultz’s negligence and plaintiff’s comparative negligence and
denied defendant’s motion for summary disposition. The trial court further ruled that plaintiff’s
expert, Robert Pachella, was qualified to offer an opinion on human factors that brought about
such an accident. The matter proceeded to a jury trial. Surveillance footage from the date of
plaintiff’s fall was played numerous times for the jury.

        The jury found that defendant was negligent and that its negligence was the proximate
cause of plaintiff’s injury. It found plaintiff comparatively negligent and attributed negligence to
defendant at 70% and to plaintiff at 30%. It found that plaintiff sustained damages for past
medical expenses in the amount of $28,588.03 and further found that plaintiff would sustain
damages for future medical and/or out-of-pocket expenses in the amount of $48,000. The jury
found that plaintiff’s past non-economic damages totaled $150,000 and that she would not incur
future non-economic damages.

      The final judgment reflected an adjusted jury verdict of $158,611.62. Plaintiff was also
awarded case evaluation sanctions and attorney fees for a total judgment against defendant in the
amount of $246,591.52.

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                  II. DEFENDANT’S MOTION FOR DIRECTED VERDICT

        Defendant first argues that the trial court erred when it denied defendant’s motion for
directed verdict based on the open and obvious doctrine.

        “A directed verdict is appropriately granted only when no factual questions exist on
which reasonable jurors could differ.” Aroma Wines & Equip, Inc v Columbian Distribution
Servs, Inc, 303 Mich App 441, 446; 844 NW2d 727 (2013), aff’d 497 Mich 337 (quotation marks
omitted). “When evaluating a motion for directed verdict, the court must consider the evidence
in the light most favorable to the nonmoving party, making all reasonable inferences in the
nonmoving party’s favor.” Locke v Pachtman, 446 Mich 216, 223; 521 NW2d 786 (1994). A
trial court’s decision on a motion for directed verdict is reviewed de novo on appeal. Krohn v
Home-Owners Ins Co, 490 Mich 145, 155; 802 NW2d 281 (2011). “In doing so, [an appellate
court] review[s] the evidence and all legitimate inferences in the light most favorable to the
nonmoving party. Only if the evidence, when viewed in this light, fails to establish a claim as a
matter of law should a motion for a directed verdict be granted.” Krohn v Home-Owners Ins Co,
490 Mich 145, 155; 802 NW2d 281 (2011) (quotation marks and footnotes omitted).

        “[T]he applicability of the open and obvious danger doctrine depends on the theory
underlying the negligence action. The doctrine applies to an action based on premises liability,
but not ordinary negligence.” Hiner v Mojica, 271 Mich App 604, 615; 722 NW2d 914 (2006)
(citation omitted). Our Court has explained:

       Michigan law concerning the open and obvious danger doctrine is derived from §
       343A(1) of 2 Restatement Torts, 2d, p. 218, which provides:

               A possessor of land is not liable to his invitees for physical harm caused to
               them by any activity or condition on the land whose danger is known or
               obvious to them, unless the possessor should anticipate the harm despite
               such knowledge or obviousness. [Emphasis added. See Bertrand, supra at
               610, 537 NW2d 185.]

       The confusion that has arisen apparently stems from the Restatement’s reference
       to “any activity or condition on the land,” thus prompting a misconception that the
       doctrine applies whenever the alleged negligence involves an activity or condition
       on the land. However, that language is clearly relevant only if the claim concerns
       the liability of a possessor of land to his invitees, i.e., premises liability. Likewise,
       the reference to a “condition on the land” in cases involving licensees is derived
       from § 342 of 2 Restatement Torts, 2d, p 210, and concerns only liability as a
       possessor of land, not negligent conduct in general. [Laier v Kitchen, 266 Mich
       App 482, 491; 702 NW2d 199 (2005).]

Therefore, “Michigan law distinguishes between claims arising from ordinary negligence and
claims premised on a condition of the land.” Buhalis v Trinity Continuing Care, 296 Mich App
685, 692; 822 NW2d 254 (2012). Premises liability is distinct from ordinary negligence because
“liability arises solely from the defendant’s duty as an owner, possessor, or occupier of the land.”



                                                 -2-
Id. “If the plaintiff’s injury arose from an allegedly dangerous condition on the land, the action
sounds in premises liability rather than ordinary negligence . . .” Id.

        Plaintiff’s complaint clearly alleged that Schultz was negligent in his conduct; the focus
did not involve a condition on the land.1 Plaintiff claims that Schultz engaged in negligent
conduct by attempting to maneuver the cart around her without first ascertaining whether it was
safe to do so. Because plaintiff’s claim sounded in ordinary negligence and was not based on
premises liability or a condition on the land, the open and obvious doctrine did not apply and the
trial court correctly denied defendant’s motion for a directed verdict.

               III. DEFENDANT’S MOTION FOR SUMMARY DISPOSITION

       Defendant next argues that, even if this is considered an ordinary negligence claim,
Schultz owed no duty to plaintiff to protect plaintiff from her own inattention.

        An appellate court “reviews the grant or denial of summary disposition de novo to
determine if the moving party is entitled to judgment as a matter of law.” Maiden v Rozwood,
461 Mich 109, 118; 597 NW2d 817 (1999). “A motion under MCR 2.116(C)(10) tests the
factual sufficiency of the complaint.” Id. at 120. This Court has explained:

       In reviewing a motion under MCR 2.116(C)(10), this Court considers the
       pleadings, admissions, affidavits, and other relevant documentary evidence of
       record in the light most favorable to the nonmoving party to determine whether
       any genuine issue of material fact exists to warrant a trial. Summary disposition is
       appropriate if there is no genuine issue regarding any material fact and the
       moving party is entitled to judgment as a matter of law. A genuine issue of
       material fact exists when the record, giving the benefit of reasonable doubt to the
       opposing party, leaves open an issue upon which reasonable minds might differ.
       [Barrow v Detroit Election Comm’n, 305 Mich App 649, 661; 854 NW2d 489
       (2014) (quotation marks and citations omitted).]

        “To establish a prima facie case of negligence, a plaintiff must prove the following
elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal
duty, (3) the plaintiff suffered damages, and (4) the defendant’s breach was a proximate cause of
the plaintiff’s damages. Accordingly, a defendant is not liable to a plaintiff unless the defendant
owed a legal duty to the plaintiff.” Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich
157, 162; 809 NW2d 553 (2011). “‘Duty’ is a legally recognized obligation to conform to a
particular standard of conduct to protect others against an unreasonable risk of harm.” Laier,
266 Mich App at 495–496 (quotation marks omitted). Our Supreme Court has explained:




1
   Defendant cites three unpublished cases in support of its position. Because they are
unpublished, the cases are not precedentially binding. MCR 7.215(C)(1). Although defendant
cites them as persuasive authority, they are not.


                                               -3-
                Actionable negligence presupposes the existence of a legal relationship
       between parties by which the injured party is owed a duty by the other, and such
       duty must be imposed by law. The duty may arise specifically by mandate of
       statute, or it may arise generally by operation of law under application of the basic
       rule of the common law, which imposes on every person engaged in the
       prosecution of any undertaking an obligation to use due care, or to so govern his
       actions as not to unreasonably endanger the person or property of others. This rule
       of the common law arises out of the concept that every person is under the
       general duty to so act, or to use that which he controls, as not to injure another.
       [Clark v Dalman, 379 Mich 251, 260–61; 150 NW2d 755 (1967) (emphasis
       added).]

“Ordinarily, whether a duty exists is a question of law for the court. If there is no duty, summary
disposition is proper. However, if factual questions exist regarding what characteristics giving
rise to a duty are present, the issue must be submitted to the fact-finder.” Laier, 266 Mich App at
496.

       In arguing that Schultz had no duty to protect plaintiff from herself, defendant is actually
arguing that plaintiff is solely responsible for her own injury. This is a matter of causation, not
duty. Our Court has explained:

       An adult plaintiff has a duty to exercise reasonable care for his own safety and
       protection. Thus, the doctrine of pure comparative negligence distributes
       responsibility according to the proportionate fault of the parties. It requires that a
       plaintiff’s damages be reduced in the same proportion by which the plaintiff’s
       own conduct contributed to his or her injuries. The standards for determining the
       comparative negligence of a plaintiff are the same as those of a defendant-the jury
       must consider the nature of the conduct and its causal relationship to the damages-
       and the question is one for the jury unless all reasonable minds could not differ or
       because of some ascertainable public policy consideration. [Laier, 266 Mich App
       at 495–496 (citations omitted).]

The trial court properly denied defendant’s motion for summary disposition where there were
genuine issues of material fact regarding the comparative fault of plaintiff and Schultz.

                                  IV. PLAINTIFF’S EXPERT

        Defendant next argues that the trial court erred in overruling its objections that plaintiff
failed to lay a proper foundation for Pachella’s testimony.

        A trial court’s decision to preclude an expert from testifying is reviewed for an abuse of
discretion. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). “An abuse of discretion
occurs when the trial court chooses an outcome falling outside the range of principled
outcomes.” Id.

       MRE 702 provides:



                                                -4-
               If the court determines that scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand the evidence or to determine a
       fact in issue, a witness qualified as an expert by knowledge, skill, experience,
       training, or education may testify thereto in the form of an opinion or otherwise if
       (1) the testimony is based on sufficient facts or data, (2) the testimony is the
       product of reliable principles and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of the case.

“The admission of expert testimony requires that (1) the witness be an expert, (2) there are facts
in evidence that require or are subject to examination and analysis by a competent expert, and (3)
the knowledge is in a particular area that belongs more to an expert than to the common man.”
Surman v Surman, 277 Mich App 287, 308; 745 NW2d 802 (2007) lv den 480 Mich 1138
(2008). “A trial court should use its common sense to decide whether an untrained person would
be qualified to determine intelligently and to the best possible degree the particular issue without
enlightenment from experts.” Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App
190, 196–197; 555 NW2d 733 (1996). “For example, a jury does not require expert testimony to
determine what a reasonable person would do in an ordinary negligence case.” Id.

       At no time did defendant challenge the testimony as unnecessary. Nor did defendant
challenge Pachella’s qualifications. Instead, defendant focuses entirely on what formed the basis
for Pachella’s opinions. “MRE 702 requires the trial court to ensure that each aspect of an expert
witness’s proffered testimony—including the data underlying the expert’s theories and the
methodology by which the expert draws conclusions from that data—is reliable.” Gilbert v
DaimlerChrysler Corp, 470 Mich 749, 779; 685 NW2d 391 (2004), citing Daubert. Our
Supreme Court has held:

               This gatekeeper role applies to all stages of expert analysis. MRE 702
       mandates a searching inquiry, not just of the data underlying expert testimony, but
       also of the manner in which the expert interprets and extrapolates from those data.
       Thus, it is insufficient for the proponent of expert opinion merely to show that the
       opinion rests on data viewed as legitimate in the context of a particular area of
       expertise (such as medicine). The proponent must also show that any opinion
       based on those data expresses conclusions reached through reliable principles and
       methodology.

              Careful vetting of all aspects of expert testimony is especially important
       when an expert provides testimony about causation. [Gilbert, 470 Mich at 782
       (footnote omitted).]

         At trial, Pachella testified that he was in his 47th year as a professor of psychology at the
University of Michigan. Pachella received his undergraduate degree, master’s and Ph.D. from
the University of Michigan in what was formerly known as Experimental Psychology and was
now more commonly referred to as Cognitive Psychology. Cognitive psychology “is the study
of basic normal abilities of sensory functions, perception, memory, language abilities, cognition
or thinking, motor skills, motor performance and things of that sort.” Pachella studied human
abilities – or human factors – in real world settings. Pachella performed “forensics” in terms of


                                                 -5-
litigation cases, looking at the causal factors for accidents. Approximately 75% of his work was
with plaintiffs and 25% with defendants.

       Pachella testified that there were two factors that contributed to the accident. He first
noted that the so-called “cocktail party effect” prevented plaintiff from hearing Schultz’s alleged
warnings that he was coming through with the cart. Under that phenomenon, an individual who
is engaged in a conversation is unable to focus or appreciate the conversations around her. The
second factor was plaintiff’s lack of peripheral vision. He explained that because plaintiff was
looking straight ahead, she could not see what was at her feet.

       During cross-examination, Pachella acknowledged that he had not personally performed
any research on the cocktail party effect. However, he noted that just because he did not
research the issue did not mean that he was not well aware of the phenomena in his vast teaching
experience. Some knowledge is so basic that it has been scientifically accepted over time. He
did some studies with his students on peripheral vision. Pachella did not perform any studies
regarding whether visual perception was increased or decreased by wearing sunglasses.

        Given the limited nature of defendant’s attack on Pachella’s testimony, contesting only
the fact that Pachella did not perform any tests himself and did not author any studies on either
the cocktail party effect or issues of peripheral vision, the trial court did not abuse its discretion
in admitting Pachella’s testimony. Pachella was a highly respected professor of cognitive
psychology whose position required him to understand phenomena that was basic to his
profession, but likely unknown to the average lay person.

                      V. DEFENDANT’S MOTION FOR PARTIAL JNOV

        Finally, defendant argues that the trial court erred when it denied defendant’s motion for
partial judgment notwithstanding the verdict (JNOV) where plaintiff failed to prove with
reasonable certainty that her injury would require future costs.

         “[A] motion for JNOV should be granted only when there was insufficient evidence
presented to create an issue of fact for the jury.” Heaton v Benton Const Co, 286 Mich App 528,
532; 780 NW2d 618 (2009). “A directed verdict is appropriate only when no material factual
questions exist on which reasonable minds could differ.” Merkur Steel Supply Inc v City of
Detroit, 261 Mich App 116, 123; 680 NW2d 485 (2004). “When deciding a motion for JNOV,
the trial court must view the evidence and all reasonable inferences in the light most favorable to
the nonmoving party and determine whether the facts presented preclude judgment for the
nonmoving party as a matter of law.” Id. at123-124. A trial court’s ruling on a motion for
JNOV is reviewed de novo. Zaremba Equip, Inc v Harco Nat Ins Co, 302 Mich App 7, 15; 837
NW2d 686 (2013).

       Future damages are allowable under MCL 600.6301, which provides:

       (a) “Future damages” means damages arising from personal injury which the trier
       of fact finds will accrue after the damage findings are made and includes damages
       for medical treatment, care and custody, loss of earnings, loss of earning capacity,
       loss of bodily function, and pain and suffering.


                                                 -6-
       (b) “Personal injury” means bodily harm, sickness, disease, death, or emotional
       harm resulting from bodily harm.

“A party asserting a claim has the burden of proving its damages with reasonable certainty.”
Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 108; 535 NW2d 529 (1995). “Although
damages based on speculation or conjecture are not recoverable, damages are not speculative
merely because they cannot be ascertained with mathematical precision” and “[i]t is sufficient if
a reasonable basis for computation exists, although the result be only approximate.” Id.
However, “a trial court should grant a party’s motion for JNOV with respect to certain damages
if the jury was permitted to speculate concerning the amount of those damages.” Shivers v
Schmiege, 285 Mich App 636, 645; 776 NW2d 669 (2009), quoting Attard v Citizens Ins. Co. of
America, 237 Mich App 311, 321–322; 602 NW2d 633 (1999).

       Plaintiff tore her rotator cuff, which necessitated surgery. Plaintiff’s treating physician,
Dr. Aalderink, testified that he was unable to say what the future would hold for plaintiff:

       That’s a difficult question to predict. And I don’t really want to predict. But I will
       say that, based on our orthopedic sports literature with rotator cuff tears that are
       large in the population over 60 that we know that there is an upwards of 40
       percent chance of retearing and failure after that surgery. The bulk of that usually
       happens within the first three months. The fact that she made it through that time
       frame is certainly positive from my standpoint. Which implied to me that she
       possessed the biological ability to heal an injury of this nature. But as far as
       predicting whether or not she would ever reinjure that shoulder or have problems
       with it in the future I think is a very difficult question to answer.

Plaintiff achieved 70% function after her surgery and first round of physical therapy, but
returned to Aalderink in April 2015 with a recurrence of pain. Aalderink could not say with
certainty that plaintiff’s complaints at that time related to the original injury but, in his
experience, “unfortunately you can have issues with going forward.” Aalderink was not
surprised that plaintiff experienced pain in her arm and hand because “it’s not uncommon to get
swelling and disruption downstream.” Aalderink noted:

       [A]ny time you weaken a part of the mechanics of the shoulder you can develop
       compensations by the shoulder blade. And this is very common and we’ll see this
       a lot after any type of shoulder injury where life goes on, people find ways to
       keep doing things that they need to do. And sometimes those are good ways to
       compensate and sometimes they cause more stress and problems to other areas
       around the ball and cup joint.

Therefore, plaintiff faced not only a recurrence of injury, but also faced injuries to other areas as
a result of over-compensating and the change in the mechanics of her shoulder. Aalderink
admitted that he was ignorant of the billing side of his practice and expressed no opinion
regarding the past or future costs of medical treatment. Still, based on the jury’s award for past
economic damages ($28,588.03), the jury was clearly aware of the costs of such treatment. The
future damages were not speculative merely because they could not be ascertained with


                                                -7-
mathematical precision. A reasonable basis for the jury’s computation existed and the trial court
correctly denied defendant’s motion for partial JNOV.

       Affirmed. As the prevailing party, plaintiff may tax costs.

                                                            /s/ Kirsten Frank Kelly
                                                            /s/ William B. Murphy
                                                            /s/ Michael J. Riordan




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