Opinion
No. 119950-51.
May 31, 2002.
COA: 219158, 219733, Wayne CC: 96-612891-NO
On order of the Court, the application for leave to appeal from the June 12, 2001 decision of the Court of Appeals is considered, and it is DENIED because we are not persuaded that the question presented should be reviewed by this Court.
I would grant leave to appeal or, in the alternative, remand this case to the Court of Appeals for reconsideration in light of Kelly v Builders Square, Inc, 465 Mich. 29 (2001).
This negligence action arose from an accident involving a backhoe. The trial court entered an order in limine that precluded defense counsel or defense witnesses from mentioning the absence of prior accidents. During closing argument, defense counsel commented on trial testimony that reflected the unusual nature of the accident. Plaintiff objected. The court overruled the objection at sidebar. Defense counsel continued his closing argument, stating, "[I]t is called a freak accident. . . . [I]t was not foreseeable."
The jury returned a verdict in favor of defendant. The trial court granted a new trial on the ground that defense counsel had violated the order in limine. The Court of Appeals affirmed. Unpublished opinion per curiam, issued June 12, 2001 (Docket Nos. 219158, 219733).
I question the lower court decisions. The trial court did not articulate a basis under the governing court rule for granting a new trial. See Kelly, supra at 41 ("A court may grant a new trial following a jury verdict only for one of the reasons stated in MCR 2.611(A)(1)").
Moreover, the record does not reflect prejudice. Plaintiff did not object to testimony that arguably supported defense counsel's comments. The jury thus had already heard evidence on the unusual nature of the accident. Also, the court instructed the jury that arguments of counsel are not evidence. If counsel's comments did not accurately reflect witness testimony, the jury presumably followed the court's instruction to disregard the comments.
The Court of Appeals suggested that defendant was required to prove the absence of prejudice. Our governing court rule, however, states: "A new trial may be granted to all or some of the parties, on all or some of the issues, whenever their substantial rights are materially affected, for any of the following reasons: . . . ." MCR 2.611(A)(1). This text appears to require the moving party to demonstrate prejudice. The court rule does not create a presumption of prejudice.
YOUNG, Jr., J., concurs with the statement of CORRIGAN, C.J.