Summary
In West v Livingston County Road Comm, 131 Mich. App. 63; 345 N.W.2d 608 (1983), this Court ruled that when a party examines an expert witness using hypothetical questions, the expert's answer must be based on, and the hypothetical questions must be premised on, facts already in evidence.
Summary of this case from In re RinesmithOpinion
Docket No. 60810.
Decided October 12, 1983. Leave to appeal denied, 419 Mich ___.
Schrauger Dunn, P.C. (by Michael J. Cantor), for plaintiffs.
Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch Clark (by Michael J. Updike), for defendant.
Plaintiffs appeal as of right from a jury verdict of no cause of action in their claim against defendant pursuant to MCL 691.1402; MSA 3.996(102).
Plaintiffs initially claim that the trial court erred by continually referring to their claim as one grounded in negligence. They claim that the statutory duty created by MCL 691.1402; MSA 3.996(102) is separate and distinct from negligence. We disagree.
In Palomba v East Detroit, 112 Mich. App. 209, 214-215; 315 N.W.2d 898 (1982), we held:
"There are two exceptions to the governmental immunity statute involved in our consideration here. First, the Legislature has expressly authorized claims against a governmental agency arising out of the negligent maintenance of highways. MCL 691.1402; MSA 3.996(102). The period of limitations for such claims is two years. MCL 691.1411; MSA 3.996(111). Second, the courts have ruled that the government has no immunity from liability for injuries resulting from a nuisance intentionally created or maintained. See Rosario v Lansing, 403 Mich. 124; 268 N.W.2d 230 (1978). The period of limitations for claims based upon intentional nuisance is three years. MCL 600.5805(8); MSA 27A.5805(8). These two exceptions to governmental immunity are distinct and independent. One involves liability for negligent conduct; the other for intentional conduct."
Similarly, in Stremler v Dep't of State Highways, 58 Mich. App. 620, 627-628; 228 N.W.2d 492 (1975), it was stated:
"Conditions in streets and public places which render the use thereof dangerous or inconvenient present issues referable to the law of negligence. 18 McQuillin, Municipal Corporations (3d ed rev), § 53.47, p 248."
The statute imposes an obligation on governmental agencies to keep highways and streets under their jurisdiction in "reasonable repair" so that they are "reasonably safe and convenient for public travel". Salvati v Dep't of State Highways, 415 Mich. 708; 330 N.W.2d 64 (1982). The requirement of reasonableness is a negligence concept.
Plaintiffs' reliance on Bush v Oscoda Area Schools, 405 Mich. 716; 275 N.W.2d 268 (1979), is misplaced. The Court did not hold in that case that the defective building exception to governmental immunity, MCL 691.1406; MSA 3.996(106), is not grounded in negligence. On the contrary, it merely held that one of plaintiffs' negligence theories did not state a claim pursuant to the defective building exception. Bush, supra, p 727, fn 7.
In any event, even assuming that the trial court's reference to the word negligence and its instructions in which that term was used were improper, we do not believe that plaintiff was prejudiced thereby. The trial court's instructions, when read as a whole, accurately instructed the jury concerning the duties imposed upon defendant by the statute.
Plaintiffs also complain that the trial court erred by instructing the jury concerning the comparative negligence of plaintiffs. For the reasons stated in Hall v Dep't of State Highways, 109 Mich. App. 592; 311 N.W.2d 813 (1981), and Wade v State Highway Comm, 92 Mich. App. 234; 284 N.W.2d 522 (1979), this claim is rejected. See also Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich. 29; 323 N.W.2d 270 (1982).
Our review of the record fails to disclose any evidence of bias on the part of the trial court against plaintiffs and their attorney. To be sure, over the course of the lengthy trial there were instances in which the trial court expressed its displeasure with particular events which transpired. However, there is nothing about the court's treatment of plaintiffs and their attorney which differed significantly from its treatment of defendant and its attorney. Plaintiffs were not denied a fair and impartial trial. Jackson v Depco Equipment Co, 115 Mich. App. 570, 582; 321 N.W.2d 736 (1982).
Plaintiffs next claim that the trial court abused its discretion by refusing to permit the jury to view the scene of the accident. We find this claim to be without merit. Although the court initially failed to give a reason for its ruling, it later indicated that, because the accident occurred during the winter, while trial took place in the summer, and because conditions had changed considerably in the interim, a view of the scene was improper. Further, the record shows that numerous exhibits were introduced depicting the condition of the road. No abuse of discretion is shown. Dooms v Stewart Bolling Co, 68 Mich. App. 5, 24; 241 N.W.2d 738 (1976).
Plaintiffs next complain that the trial court improperly precluded them from posing hypothetical questions to one of their expert witnesses. We initially reject plaintiffs' contention that they were required to conduct examination of their expert witnesses by the use of hypothetical questions. MRE 703 permits an expert to base his opinion on facts or data not in evidence. See also MRE 705. However, where a party does proceed to examine an expert witness by the use of hypothetical questions, the answer must be based on facts contained therein and the hypothetical questions must be premised on facts already in evidence. Grewe v Mt. Clemens General Hospital, 404 Mich. 240, 257-258; 273 N.W.2d 429 (1978). The trial court's ruling was not improper.
Plaintiffs next complain that the trial court erred by admitting the deposition testimony of a witness who testified concerning the lack of prior accidents at the scene where this accident occurred. This issue is completely without merit. Although the trial court initially ruled the evidence admissible, it subsequently reversed its ruling and held that the evidence could not be admitted. The transcript of the deposition shows that the testimony was blocked out and, therefore, not placed before the jury.
We find nothing improper in the trial court's decision to permit defendant to introduce a copy of plaintiffs' complaint with all references to other defendants removed.
Finally, we also find meritless plaintiffs' claim that the trial court's refusal to give SJI 6.01 constituted reversible error. There is no evidence that the witnesses were not equally available to plaintiffs. Dayhuff v General Motors Corp, 103 Mich. App. 177, 187-188; 303 N.W.2d 179 (1981).
The judgment of the trial court is affirmed. Costs to defendant.