The defendant appealed from a judgment entered after a jury verdict in a Michigan premises liability action. The Michigan Court of Appeals affirmed the trial judge’s denial of the defendant’s motion for judgment notwithstanding the verdict. The appeals court also affirmed the trial judge’s denial of the defendant’s motion for a new trial as to damages with the exception of those based upon past and future medical expenses.While shopping at the defendant’s store, the plaintiff asked for assistance with some folding metal chairs that were located on a top shelf. An employee attempted to manipulate that stack of chairs, and they fell from the top shelf onto the plaintiff’s head. The plaintiff sued the defendant’s corporation, which, though it contested fault, did not contest that if the jury found its employee at fault, it would be liable under respondeat superior.
On appeal, the defendant first contended that the trial court erred by denying its motion for a directed verdict, in which it claimed that it had no duty to the plaintiff, based on the open and obvious danger doctrine. The appeals court agreed with the trial court that this motion was properly denied on both procedural and substantive grounds.
The appeals court concluded that the defendant waived any claim that the action did not sound in negligence. Early in the case, the trial court issued an order providing that once a formal Joint Final Pretrial Order (JFPO) is filed, it supersedes previous pleadings and orders and controls the trial proceedings. It further provided that the JFPO shall contain a concise statement of a defendant’s defenses and cross-claims, including legal theories. A JFPO was presented to the court by the parties and entered as an order. Under the heading “Defendant’s Claims,” the defendant listed multiple defenses but included no reference to premises liability or a defense that the plaintiff’s injury was caused by an open and obvious condition. Given the court’s pre-trial orders and the JFPO to which defense counsel stipulated, the defendant waived this argument.