-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

JOHN PUGNO and AILENE PUGNO,

Plaintiffs-Appellees,

FOR PUBLICATION

September 27, 2018

9:00 a.m.

v No. 340142

Ottawa Circuit Court

BLUE HARVEST FARMS LLC, LC No. 16-004624-NO

Defendant-Appellant.

Before: MURRAY, C.J., and CAMERON and LETICA, JJ.

CAMERON, J.

In this negligence case, a jury awarded a total judgment of $358,288.98 in favor of 

plaintiffs, John and Ailene Pugno.1 Defendant, Blue Harvest Farms, LLC, appeals the trial 

court’s order denying its motion for a new trial, judgment notwithstanding the verdict (JNOV), 

and remittitur. On appeal, Blue Harvest raises multiple allegations of error originating from the 

trial court’s denial of Blue Harvest’s motion for summary disposition under MCR 2.116(C)(10) 

and from its motion for a new trial, JNOV, and remittitur. We conclude that the trial court erred 

when it allowed plaintiff to proceed to trial on both a premises liability and ordinary negligence 

theory. However, it was permissible to proceed on the premises liability theory, the jury 

instructions on res ipsa loquitur and spoliation as to premises liability were proper, and it was 

appropriate for the jury to find Blue Harvest liable on the premises liability claim. Therefore, a 

new trial is not merited. In all other respects, we affirm.

I.

Plaintiff was employed by Air Components as an air-compressor technician and 

salesperson. Blue Harvest is a family-owned blueberry farm and packaging facility located in 

West Olive, Michigan. On October 28, 2014, plaintiff met with Blue Harvest’s owner, Adam 

LaLone, to inspect a malfunctioning air compressor on Blue Harvest’s premises. As plaintiff and 

LaLone walked through the warehouse where packaging materials were stored, they passed a 

stack of three pallets of unassembled cardboard boxes near the walkway. The top two bundles 

 1 This case arises out of injuries suffered by John. Ailene’s claims were based on loss of 

consortium. As a result, we will refer to John as “plaintiff.”
-2-

unexpectedly fell on them. Plaintiff suffered multiple injuries, including a broken hip that 

required emergency hip replacement surgery.

Blue Harvest did not preserve the pallets or cardboard boxes that fell, nor were there any 

photographs taken. According to LaLone, each pallet of stacked cardboard was four feet long 

and four feet high. Each stack of cardboard was bound to a wooden pallet with nylon straps and 

was delivered to Blue Harvest by an outside vendor. A week before the incident, LaLone used a 

forklift to move the bounded pallets of cardboard in the warehouse and stacked them three 

bundles high. Together, the tower of cardboard weighed 1,000 pounds and reached a height of 

14 feet. LaLone testified at his deposition that stacking cardboard in this manner was normal in 

the industry. He had worked on farms that had used that method of storage for 50 years without 

incident. Importantly, he admitted that if the cardboard was properly stacked, it should not “go 

anywhere,” but he did not know what happened to cause the cardboard to fall. After the incident, 

LaLone noted that one of the pallets that fell was cracked. However, he was unsure whether the 

crack was on the back side or the front side of the pallet because “[e]verything was flipped over.” 

LaLone opined that the incident may have been caused by a damaged pallet; however, there was 

no indication whether the pallet was cracked before the incident because the cardboard obscured 

the view of the pallet. Unfortunately, LaLone used the remaining undamaged boxes after the 

incident and threw away the cracked pallet before plaintiff could inspect it.

II.

Plaintiff filed a two-count complaint against Blue Harvest on June 20, 2016, alleging 

negligence and loss of consortium. Blue Harvest filed a motion for summary disposition under 

MCR 2.116(C)(10), arguing that the lawsuit sounded in premises liability, and because plaintiff 

failed to show that Blue Harvest had actual or constructive knowledge of the alleged hazardous 

condition, summary disposition was appropriate. The trial court entered an order denying Blue 

Harvest’s motion for summary disposition without the benefit of oral argument, holding that 

plaintiff’s complaint sounded only in ordinary negligence and that “defendant’s motion argues 

against a legal theory which has not been pled.” Blue Harvest filed a motion for reconsideration, 

arguing that the trial court committed palpable error because plaintiff’s claim was based 

exclusively on premises liability—not ordinary negligence. The trial court denied Blue 

Harvest’s motion, citing its earlier order denying the motion for summary disposition. 

At a later proceeding, plaintiff’s attorney surprised the court when he informed it that 

plaintiff was pursuing his negligence claim on both a premises liability and ordinary negligence 

theory. The trial court decided to rehear Blue Harvest’s request for summary disposition on 

plaintiff’s premises liability claim. At the hearing, Blue Harvest argued that summary 

disposition was proper because there was no genuine issue of material fact that Blue Harvest did 

not have actual or constructive notice of the hazardous condition. Blue Harvest further argued 

that there was no evidence of negligence at all because plaintiff presented no evidence explaining 

why the pallet fell, e.g., LaLone stacking the pallets improperly, a pallet cracking under the 

weight of the cardboard, or the vibrations of forklift activity nearby causing the pallets to shift 

off balance. Plaintiff’s attorney pointed to the theory of res ipsa loquitur, explaining that such an 

instruction was needed for the very reason that there was no evidence as to why the pallets fell. 

Plaintiff’s attorney also addressed that he was alleging two separate negligence theories:
-3-

[Plaintiff’s Attorney]: But in terms of the premises liability claim, we have to 

separate conduct, which is negligence, from what is your duty as a landowner? 

And we cited the law that says you can have both claims. We have the conduct. 

[LaLone] clearly stacked it. There’s no dispute on that. 

The Court: Why have you made your complaint so, I guess, simple yet 

complicated because you’re alleging a couple theories on a simple complaint.

Plaintiff’s Attorney: I –

The Court: This is difficult.

Plaintiff’s Attorney: And I can tell you why. Because we didn’t even 

know. Because we knew it fell over. We didn’t know about the cracked pallets. 

My client was in the hospital when all this was cleaned up. So, we’re coming in 

saying we know something happened here, something went wrong, and now I 

need to discover it. . . .

The Court: What you need to do is to file an amended complaint putting 

forth your theories, and then once we get that, we’ll determine if they’re prepared 

to go to trial on your amended complaint or not.

Plaintiff’s attorney filed an amended complaint a few days later, alleging premises 

liability and ordinary negligence. Blue Harvest did not file another motion for summary 

disposition,2 and the trial court never addressed whether plaintiff could continue on both 

negligence theories. Before trial, Blue Harvest filed an emergency motion for an adjournment, 

claiming plaintiff was no longer calling his treating medical doctor to testify, and therefore, it

needed time to subpoena and depose him. The trial court denied the motion, concluding Blue 

Harvest failed to file any witness list, and therefore, it would not be prejudiced by the fact that 

the doctor was not going to testify at trial. Trial commenced on June 14, 2017. Before closing 

arguments, the trial court overruled Blue Harvest’s objections to plaintiff’s request for res ipsa 

loquitur and spoliation jury instructions. The trial court also denied Blue Harvest’s request for 

two other specific jury instructions. The jury returned a verdict finding Blue Harvest liable on 

both negligence theories. Blue Harvest then filed a motion for a new trial, JNOV, and remittitur, 

claiming the trial court failed to grant its emergency motion for an adjournment, that it erred 

when it allowed the res ipsa loquitur and spoliation instructions, and when it denied Blue 

Harvest’s request for specific jury instructions, and that remittitur was necessary because the jury 

failed to account for the fact that plaintiff was cleared to go back to work.

 2 According to the scheduling order, motions for summary disposition had to be filed within 28 

days of trial. Plaintiff’s amended complaint was filed on May 23, 2017—21 days before trial 

was scheduled to begin on June 14, 2017. Therefore, it is uncertain whether defendant could 

have filed a motion for summary disposition absent a trial adjournment. 
-4-

III.

Blue Harvest first argues that the trial court erred in denying its motion for summary 

disposition because plaintiff’s claim sounded exclusively in premises liability, there was no 

genuine issue of material fact for a jury to decide the premises liability issue, and the trial court 

should not have allowed the claim to proceed on the basis of res ipsa loquitur because the 

doctrine is inapplicable to premises liability claims. While we agree that plaintiff’s claim 

sounded exclusively in premises liability, we are unpersuaded by Blue Harvest’s remaining 

arguments.

A.

An issue is preserved for appellate review when it is raised in and decided by the trial 

court. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). In this case, Blue 

Harvest filed a motion for summary disposition under MCR 2.116(C)(10) arguing that plaintiff’s 

claim was based on premises liability and that plaintiff failed to produce any evidence that Blue 

Harvest was negligent. The trial court denied Blue Harvest’s motion as it pertained to premises 

liability, concluding that Blue Harvest was not entitled to summary disposition for an apparent 

lack of actual or constructive notice because LaLone created the hazardous condition and notice 

was imputed to Blue Harvest. Therefore, Blue Harvest’s argument that it is entitled to summary 

disposition in relation to plaintiff’s premises liability claim is preserved. However, it is less clear 

whether Blue Harvest has preserved its argument that plaintiff’s ordinary negligence theory 

should have been summarily dismissed. While Blue Harvest alleged in its motion for summary 

disposition that plaintiff’s claim sounds in premises liability, it did not argue in its brief or at the 

hearing that the ordinary negligence claim should be dismissed because plaintiff’s lawsuit sounds 

exclusively in premises liability. On the other hand, Blue Harvest did raise this argument in its 

motion for reconsideration, and the trial court denied the motion without holding a hearing. 

Regardless, “this Court may overlook preservation requirements if the failure to consider the 

issue would result in manifest injustice, if consideration is necessary for a proper determination 

of the case, or if the issue involves a question of law and the facts necessary for its resolution 

have been presented.” Smith v Foerster-Bolser Constr Inc, 269 Mich App 424, 427; 711 NW2d 

421 (2006). We choose to do so here because this is an issue involving a question of law for 

which all relevant facts are part of the record. See id. 

This Court reviews a trial court’s ruling on a motion for summary disposition de novo. 

Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001). When 

reviewing a motion brought pursuant to MCR 2.116(C)(10), this Court “must consider the 

pleadings, affidavits, depositions, admissions, and any other documentary evidence in favor of 

the party opposing the motion.” Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 

727 (1996). This Court’s “task is to review the record evidence, and all reasonable inferences 

drawn from it, and decide whether a genuine issue regarding any material fact exists to warrant a 

trial.” Id. A genuine issue of material fact exists when the record, “giving the benefit of 

reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds 

might differ.” Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 609; 566 NW2d 571 

(1997) (citation omitted). However, the court may not “assess credibility” or “determine facts on 

a motion for summary judgment.” Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 

(1994).
-5-

B.

There is no dispute that plaintiff was an invitee at Blue Harvest’s warehouse. See Stitt v 

Holland Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000) (stating “that 

invitee status is commonly afforded to persons entering upon the property of another for business 

purposes”). “In general, a premises possessor owes a duty to an invitee to exercise reasonable 

care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on 

the land.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). “A 

premises owner breaches its duty of care when it knows or should know of a dangerous condition 

on the premises of which the invitee is unaware and fails to fix the defect, guard against the 

defect, or warn the invitee of the defect.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 8; 890 

NW2d 344 (2016) (quotation and citation omitted). In addition, the plaintiff “must be able to 

prove that the premises possessor had actual or constructive notice of the dangerous condition at 

issue.” Id. (citation omitted).

Blue Harvest argues persuasively that the trial court erred when it allowed plaintiff’s 

claim to proceed on both premises liability and ordinary negligence. “Courts are not bound by 

the labels that parties attach to their claims.” Buhalis v Trinity Continuing Care Servs, 296 Mich 

App 685, 691; 822 NW2d 254 (2012). Instead, an action should be determined by reading the 

entire complaint, looking beyond procedural labels, and determining the exact nature of the 

claim. Id. at 691-692. Importantly, there is a distinction “between claims arising from ordinary 

negligence and claims premised on a condition of the land.” Id. at 692. When the claim is based

on a condition of the premises, “liability arises solely from the defendant’s duty as an owner, 

possessor, or occupier of land.” Id.; see also Kachudas v Invaders Self Auto Wash, Inc, 486 

Mich 913, 914; 781 NW2d 806 (2010) (“[T]he plaintiff in this case is alleging injury by a 

condition of the land, and as such, his claim sounds exclusively in premises liability.”).

Much of the confusion in this case stemmed from plaintiff’s original complaint, which

alleged a single claim of “negligence.” Even plaintiff’s amended complaint, which alleged both 

negligence theories, listed similar allegations under each count. On review of the original and 

amended complaints, it is clear that the duties alleged sound exclusively in premises liability. In 

the original complaint, plaintiff claimed that Blue Harvest, as the owner of the premises, owed 

him the “highest level of protection,” to warn of any dangers it should have known about, to 

make the premises safe for plaintiff, to maintain the premises in a safe manner, and to ensure that 

plaintiff utilized methods to store pallets safely to protect from falling objects. According to 

plaintiff, Blue Harvest breached its duty by failing to properly stack the pallets and boxes, failing 

to warn of the dangers associated with the pallets and boxes, failing to make the premises safe,

failing to inspect and maintain the premises to ensure that heavy boxes would not fall, and failing 

to otherwise protect plaintiff. In the amended complaint filed weeks before trial, plaintiff 

included both negligence theories. Under the count for ordinary negligence, plaintiff alleged that 

Blue Harvest failed to properly stack the pallets and keep them from falling, failed to ensure the 

stack would not fall over, and stacked the pallets to an unsafe height using defective pallets. All 

of plaintiff’s allegations focus on the hazardous condition, Blue Harvest’s duty to protect 

plaintiff from the hazardous condition, or how Blue Harvest created the condition. These

allegations relate to the condition of the premises, i.e., the stack of pallets, and the complaint 

sounds in premises liability only. Therefore, we conclude that the trial court erred when it 

allowed plaintiff to proceed to trial on both theories. 
-6-

That is not to say a plaintiff can never proceed on both negligence theories. However, in 

this case, plaintiff has not pleaded, nor do the facts support, conduct that would maintain an 

ordinary negligence theory. This Court has stated:

In a negligence case, the theory of liability determines the nature of the duty 

owed. . . . In a premises liability claim, liability emanates merely from the 

defendant’s duty as an owner, possessor, or occupier of land. However, that does 

not preclude a separate claim grounded on an independent theory of liability 

based on the defendant’s conduct, as in this case. [Laier v Kitchen, 266 Mich App 

482, 493; 702 NW2d 199 (2005) (opinion by NEFF, J.).]

In Laier, this Court reversed the trial court’s grant of summary disposition and remanded for 

further proceedings. Id. at 500-501. Judge Neff, authoring the lead opinion, concluded that the 

plaintiff had alleged both a premises liability claim and an ordinary negligence claim, stating that

“[d]efendant’s conduct was . . . an alleged basis of liability, independent of premises liability.” 

Id. at 493. The plaintiff’s decedent in Laier died after he was crushed by the front-end loader 

bucket of the defendant’s tractor when he and the defendant attempted to fix a hydraulic hose. 

Id. at 485-486. The plaintiff alleged that the defendant was negligent in the operation and 

control of the tractor and bucket. Id. at 486. Judge Neff also determined that the defendant 

failed to secure the bucket of the tractor in a raised position just before the decedent stepped 

under the bucket to work on the hose. Id. at 495. Accordingly, the defendant’s duty to operate

the tractor in a safe manner constituted conduct sufficient to maintain an ordinary negligence 

claim, and the defendant’s duty to protect decedent from unreasonable risks of injury and to warn

of those risks as it pertained to the tractor as a condition of the premises was sufficient to 

maintain a premises liability claim. Id. at 495, 497. The concurring judges, in two separate 

opinions, came to the conclusion that more factual development was needed to determine 

whether an ordinary negligence claim was viable. Id. at 501-503 (SCHUETTE, J., concurring in 

the result only; HOEKSTRA, P.J., concurring in part and dissenting in part).

3

 

In this case, plaintiff does not allege an ordinary negligence claim that is “grounded on an 

independent theory of liability based on the defendant’s conduct.” Id. at 493. Instead, plaintiff 

only alleges that Blue Harvest, a week before the incident, created the dangerous condition, i.e., 

the stacked pallets, and failed to maintain them in a safe manner. An action sounds in premises 

liability rather than ordinary negligence “even when the plaintiff alleges that the premises 

possessor created the condition giving rise to the plaintiff’s injury.” Buhalis, 296 Mich App at 

692. There is no allegation that LaLone or one of Blue Harvest’s employees actively knocked 

the pallets over or engaged in direct conduct that caused the pallets to fall onto plaintiff. LaLone 

was not actively stacking the pallets when they fell. The pallets were stacked in that manner

 3 Notably, Judge Hoekstra would have further concluded that summary disposition was proper on 

the premises liability claim because the tractor presented no danger until the defendant lifted the 

bucket. Laier, 266 Mich App at 503 (HOEKSTRA, P.J., concurring in part and dissenting in part). 

Additionally, the defendant was in no better position to protect the plaintiff’s decedent from the 

dangerous condition than the decedent himself. Id. at 504. 
-7-

nearly a week earlier and were simply a condition of the premises. Claims that Blue Harvest 

failed to protect and warn plaintiff of the unreasonable risks of injury sound squarely in premises 

liability. Because plaintiff did not plead sufficient allegations supporting ordinary negligence, 

the trial court erred when it allowed plaintiff to proceed on that theory. 

Blue Harvest, however, would only be entitled to a new trial if refusal to set aside the 

verdict is inconsistent with substantial justice. MCR 2.613(A); Guerrero v Smith, 280 Mich App 

647, 655-656; 761 NW2d 723 (2008). If the trial court did not err by allowing plaintiff to 

proceed on the premises liability theory, and the jury received the proper jury instructions 

regarding that claim, then any error involving the ordinary negligence claim does not affect the 

integrity of the jury’s verdict and would be harmless. MCR 2.613(A).

C.

Thus, we must next determine whether plaintiff’s premises liability claim survives 

summary disposition. Upon review of the record, we conclude that the trial court did not err 

when it denied Blue Harvest’s motion for summary disposition on plaintiff’s premises liability 

claim. Blue Harvest argues that it is entitled to summary disposition because there was no 

evidence that the pallets were stacked improperly and that no one knows why the stack of pallets

fell over. Thus, even when viewing the evidence in the light most favorable to plaintiff, no jury 

could find Blue Harvest liable. This argument fails.

 As stated previously, a premises owner has a duty “to exercise reasonable care to 

protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the 

land.” Lugo, 464 Mich at 516. The premises owner breaches this duty “when it knows or should 

know of a dangerous condition on the premises of which the invitee is unaware and fails to fix 

the defect, guard against the defect, or warn the invitee of the defect.” Lowrey, 500 Mich at 8. 

(quotation marks and citation omitted.) Plaintiff provided photographic evidence that Blue 

Harvest’s storage practices included stacking pallets three or four high. Blue Harvest’s owner, 

LaLone, admitted in his deposition that properly stacked pallets would not fall—implying pallets 

that fall could be improperly stacked. There was evidence that LaLone led plaintiff in close 

proximity of the pallets as they walked through the warehouse. And importantly, Blue Harvest

failed to preserve the pallets of cardboard that had fallen. As provided in more detail below, 

plaintiff was entitled to an inference in his favor due to the spoliation of evidence. Thus, 

considering the evidence in the light most favorable to the non-moving party, plaintiff presented 

sufficient evidence, albeit circumstantial, to prove that Blue Harvest failed to protect and warn 

plaintiff from an unreasonable risk of harm on the premises. On the other hand, LaLone claimed 

that the incident was simply an accident likely caused by a cracked pallet, and Blue Harvest was 

in no way negligent. Thus, whether defendant breached its duty as a landowner is a question for 

the jury to decide. Bertrand v Alan Ford Inc, 449 Mich 606, 617; 537 NW2d 185 (1995) (“If the 

proofs create a question of fact that the risk of harm was unreasonable, the existence of duty as 

well as breach become questions for the jury to decide.”). There are genuine issues of material 

facts as to whether Blue Harvest breached its duty of care as the premises possessor, and 

summary disposition is not appropriate on this issue.

A defendant can also “establish its entitlement to summary disposition by demonstrating 

that plaintiff failed to present sufficient evidence of notice.” Lowrey, 500 Mich App at 10. To 
-8-

do so, a plaintiff must “prove that the premises possessor had actual or constructive notice of the 

dangerous condition at issue.” Id. at 8. However, “there is a difference between the failure to 

discover a dangerous condition created by another, and the creation of a dangerous condition by 

the possessor.” Pippin v Atallah, 245 Mich App 136, 145 n 2; 626 NW2d 911 (2001). “Where 

the possessor is the one who created the condition, knowledge of the condition is imputed to the 

possessor, but where the condition is created by a third person, there is a factual question 

regarding whether the possessor should have reasonably discovered the condition.” Id.; see also 

Williams v Borman’s Foods, Inc, 191 Mich App 320, 321; 477 NW2d 425 (1991) (concluding 

that notice is unnecessary when the defendant’s agents created the condition). In this case, 

plaintiff and Blue Harvest both admit that LaLone created the dangerous condition at issue—the 

stack of pallets. Therefore, Blue Harvest’s claim that it did not have notice of the condition fails 

because knowledge of the condition is imputed to the possessor.

IV.

Next, Blue Harvest argues that the trial court erred when it allowed the res ipsa loquitur

jury instruction on a premises liability theory of negligence. We disagree. The issue of whether 

the doctrine of res ipsa loquitur is applicable to a particular case is a question of law. Jones v 

Porretta, 428 Mich 132, 154 n 8; 405 NW2d 863 (1987).

“The major purpose of the doctrine of res ipsa loquitur is to create at least an inference of 

negligence when the plaintiff is unable to prove the actual occurrence of a negligent act. . . .” 

Woodard v Custer, 473 Mich 1, 7; 702 NW2d 522 (2005) (citation omitted; ellipsis in original). 

It is not an independent cause of action. Our Supreme Court has provided the following 

standard:

In order to avail themselves of the doctrine of res ipsa loquitur, plaintiffs 

must meet the following conditions: 

(1) the event must be of a kind which ordinarily does not occur in the 

absence of someone’s negligence;

(2) it must be caused by an agency or instrumentality within the exclusive 

control of the defendant;

(3) it must not have been due to any voluntary action or contribution on 

the part of the plaintiff; and

(4) evidence of the true explanation of the event must be more readily 

accessible to the defendant than to the plaintiff. [Id. (quotation marks, citations, 

and alterations omitted)].

Although plaintiff must establish that the event was of a kind that ordinarily does not occur in the 

absence of negligence, plaintiff must also produce some evidence of wrongdoing beyond the 

mere happening of the event. Fuller v Wurzburg Dry Goods Co, 192 Mich 447, 448; 158 NW2d 

1026 (1916).
-9-

The trial court provided the following jury instruction at the close of trial:

If you find that the defendant had control over the instrumentality which caused 

the plaintiff’s injuries and the event, the falling of the pallets, is of a kind which 

ordinarily does not occur in the absence of someone’s negligence and the event, 

the falling of the pallets, was not due to any voluntary action or contribution on 

the part of the plaintiff and that the evidence of the true explanation of the event, 

the falling of the pallets, must be more readily accessible to the defendant than the 

plaintiff, then you may infer that the defendant was negligent.

First and foremost, whether the doctrine of res ipsa loquitur can apply in a premises 

liability case is a question that has yet to be fully resolved. Blue Harvest argues that this Court 

should not adopt the doctrine in this state, citing Alabama law, see Ex parte Harold L Martin 

Distrib Co, Inc, 769 So 2d 313, 314 (Ala, 2000), and arguing our courts have predominantly 

applied res ipsa loquitur in the context of medical malpractice claims.4 We decline to adopt Blue 

Harvest’s approach. Our Supreme Court has relied on the Restatement Torts, 2d to determine 

that res ipsa loquitur does not apply to cases involving gross negligence, see Maiden v Rozwood, 

461 Mich 109, 127; 597 NW2d 817 (1999), citing Restatement Torts, 2d § 328D, comment on 

clause (c) of subsection (1), and we find the Restatement instructive. Importantly, the 

Restatement does not expressly preclude the use of a res ipsa loquitur theory with premises 

liability claims as it does for gross negligence claims. Instead, the Restatement provides 

examples when res ipsa loquitur applies to premises liability-type cases, such as when plaster 

unexpectedly falls from the ceiling, when a sign falls from a building, or when a chandelier falls 

from its fixture. See id. Ultimately, res ipsa loquitur is “merely one kind of case of 

circumstantial evidence, in which the jury may reasonably infer both negligence and causation 

from the mere occurrence of the event and the defendant’s relation to it.” Id., comment b. 

Premises liability is a theory of negligence, and therefore, we conclude the doctrine of res ipsa 

loquitur may apply to such claims.

Turning to the first element of res ipsa loquitur, we must ask whether “the event is of a 

kind which ordinarily does not occur in the absence of negligence.” Woodard, 473 Mich at 7. 

The Restatement Torts, 2d provides the following guidance on this element:

 4 We note that this Court has ruled on, albeit in a cursory manner, at least three cases that 

allowed the use of res ipsa loquitur in a premises liability case. See Estate of Owens v Mantha 

Mgt Group, unpublished per curiam opinion of the Court of Appeals, issued June 28, 2018 

(Docket No. 338392); Cooper-James v Texas Roadhouse of Roseville, unpublished per curiam 

opinion of the Court of Appeals, issued November 30, 2010 (Docket No. 293797); Boyer v 

Target Corp, unpublished per curiam opinion of the Court of Appeals, issued March 15, 2005 

(Docket No. 251790). The Sixth Circuit Court of Appeals, applying Michigan law, has also 

applied res ipsa loquitur to a premises liability claim. See DeBusscher v Sam’s East, Inc, 505 

F3d 475, 480-481 (CA 6, 2007).
-10-

e. Permissible conclusion. The plaintiff’s burden of proof (see § 328A) requires 

him to produce evidence which will permit the conclusion that it is more likely 

than not that his injuries were caused by the defendant's negligence. Where the 

probabilities are at best evenly divided between negligence and its absence, it 

becomes the duty of the court to direct the jury that there is no sufficient proof.

The plaintiff need not, however, conclusively exclude all other possible 

explanations, and so prove his case beyond a reasonable doubt. Such proof is not 

required in civil actions, in contrast to criminal cases. It is enough that the facts 

proved reasonably permit the conclusion that negligence is the more probable 

explanation. This conclusion is not for the court to draw, or to refuse to draw, in 

any case where either conclusion is reasonable; and even though the court would 

not itself find negligence, it must still leave the question to the jury if reasonable 

men might do so. [Restatement Torts, 2d, § 328D, Comment on Clause (a) of 

subsection (1).]

The evidence is clear that Blue Harvest’s owner, LaLone, stacked the pallets of 

cardboard. Plaintiff and the trial court both rely on LaLone’s testimony that a properly stacked 

pallet should not fall, leading to the reasonable inference that a falling pallet does so because it 

was improperly stacked. Moreover, the trial testimony is clear that Blue Harvest did not 

implement any safety precautions that could have prevented this type of accident. According to 

plaintiff’s expert engineer who testified at trial,

5 the higher pallets are stacked, the more likely 

they could fall over and injure someone. In this case, plaintiff’s expert concluded that Blue 

Harvest’s storage procedures, including stacking cardboard pallets three high, fell below the 

industry standard. Most importantly, Blue Harvest failed to preserve the one piece of evidence—

the wooden pallets—which could have provided an answer to the ultimate question of why the 

pallets fell. Given the spoliation instruction provided, the jury could reasonably determine, 

beyond mere speculation, that the improper stacking and storing of the pallets was the likely 

cause of the injury. Thus, in consideration of this evidence, a jury could conclude that the event 

here would not be something that occurs absent someone’s negligence. That said, Blue Harvest 

has posited another viable theory—one that does not involve negligence at all. It claims that the 

pallets were properly stacked, but one pallet was cracked and therefore was the likely cause of 

the incident. We acknowledge this is a plausible theory. The pallet could have been 

compromised when it was delivered to the warehouse, at the time it was stacked, or the weight of 

the cardboard could have caused the defect in the pallet and shifted the stack off balance. 

However, when “the facts proved reasonably permit the conclusion that negligence is the more 

probable explanation,” this decision must be left to the jury. Id. The trial court did not err, 

particularly due to the spoliation of evidence, when it allowed the jury to determine whether the 

falling pallets were an event that ordinarily does not happen in the absence of negligence. 

 5 We note that plaintiff’s expert only testified at trial, and his findings were not part of the record 

at the time of the hearing on defendant’s motion for summary disposition under MCR 

2.116(C)(10).
-11-

The last three elements of res ipsa loquitur are also established. The evidence shows that 

Blue Harvest was in exclusive control of the premises, that plaintiff was in no way responsible 

for the event, and Blue Harvest had ready access to any evidence of the true explanation of the 

event’s happening. Woodard, 473 Mich at 7. Blue Harvest claims that the vendors also had 

control of the pallets, but LaLone testified that the pallets had been at the warehouse for almost a 

week before the event occurred. Therefore, this argument is without merit. Under the unique 

circumstances of this case, the trial court did not err when it provided the jury instruction on res 

ipsa loquitur.

V.

Next, as intimated earlier, we must determine whether the trial court’s spoliation

instruction was appropriate as a sanction because Blue Harvest disposed of the pallets and boxes 

that fell on plaintiff. We conclude that the spoliation instruction was proper.

The imposition of a sanction for spoliation of evidence “may be disturbed only upon a 

finding that there has been a clear abuse of discretion.” Brenner v Kolk, 226 Mich App 149, 

159-160; 573 NW2d 65 (1997). In addition, this Court reviews “the trial court’s decision 

regarding supplemental jury instructions” for an abuse of discretion. Guerrero, 280 Mich App at 

660. “An abuse of discretion occurs when the decision results in an outcome falling outside the 

range of principled outcomes.” Ronnisch Constr Group, Inc v Lofts on the Nine, LLC, 306 Mich 

App 203, 208; 854 NW2d 744 (2014).

An adverse inference permits the fact-finder to conclude that the missing evidence would 

have been adverse to the opposing party. Brenner, 226 Mich App at 155-156.

A jury may draw an adverse inference against a party that has failed to produce 

evidence only when: (1) the evidence was under the party’s control and could 

have been produced; (2) the party lacks a reasonable excuse for its failure to 

produce the evidence; and (3) the evidence is material, not merely cumulative, 

and not equally available to the other party. [Ward v Consol Rail Corp, 472 Mich 

77, 85-86; 693 NW 366 (2005).]

In this case, the trial court provided M Civ JI 6.01(c) to the jury:

The defendant in this case has not offered the pallets which fell on plaintiff as 

evidence. As this evidence was under the control of the defendant and could have 

been produced by the defendant, you may infer that the evidence would have been 

adverse to the defendant if you believe that no reasonable excuse for defendant’s 

failure to produce the evidence has been shown.

Here, it was undisputed that Blue Harvest had control over the pallets that fell on 

plaintiff. They were located in Blue Harvest’s warehouse. In addition, these items were relevant 

to this case. In fact, Blue Harvest’s owner testified at trial that he believed that the incident was 

caused by failure of one of the pallets. Blue Harvest also argued that plaintiff’s injuries were the 

result of an accident and that no one knew why the pallets fell.
-12-

“Even when an action has not been commenced and there is only a potential for litigation, 

the litigant is under a duty to preserve evidence that it knows or reasonably should know is 

relevant to the action.” Brenner, 226 Mich App at 162. Blue Harvest’s failure to preserve the 

pallets deprived plaintiff of the opportunity to inspect a possible cause of the collapse. As a 

result, the trial court did not abuse its discretion by providing the spoliation instruction because it 

merely permitted the jury to infer that the evidence would have been adverse to Blue Harvest if it 

did not believe that Blue Harvest’s excuse for disposing of the pallets was reasonable. See id. at 

159-160. The trial court did not err when it provided the spoliation instruction to the jury. 

Blue Harvest also contends that the trial court erred in not providing two supplemental 

instructions for the jury. 

First, Blue Harvest asked the trial court to provide the following instruction: “the 

happening of an accident in and of itself is not evidence of negligence.” The trial court declined 

to do so, stating that the res ipsa loquitur instruction already covered that information. The 

instruction provided that the jury could infer negligence on the part of Blue Harvest if it found 

that Blue Harvest had control over the pallets, if the falling of the pallets was the kind of event 

that does not ordinarily occur in the absence of someone’s negligence, if the falling of the pallets 

was not due to any voluntary action on the part of plaintiff, and that the evidence of the true 

explanation of the event was more accessible to Blue Harvest than plaintiff. See Woodard, 473 

Mich at 7. Thus, the jury had to find that the four elements of res ipsa loquitur were met before 

inferring negligence in this case. Accordingly, “the happening of an accident in and of itself is 

not evidence of negligence” was properly covered by the res ipsa loquitur instruction. See 

Zaremba Equip, Inc v Harco Nat Ins Co, 302 Mich App 7, 25; 837 NW2d 686 (2013) (“Jurors 

are presumed to follow their instructions, and instructions are presumed to cure most errors.”)

(Quotation marks and citation omitted.)

Finally, Blue Harvest requested the trial court to instruct the jury that “speculation and 

conjecture are insufficient to create an issue of material fact as to whether negligence can be 

proven.” The trial court offered a similar preliminary instruction in regard to damages: “Which, 

if any, of these elements of damage have been proved, it is for you to decide based upon 

evidence and not upon speculation, guess, or conjecture.” See M Civ JI 50.01. In addition, the 

trial court provided: “Your determination of the facts in this case must be based only upon the 

evidence admitted during the trial. Evidence consists of the sworn testimony of the witnesses. It 

also includes exhibits, which are documents or other things introduced into evidence.” See M 

Civ JI 2.04(1). The trial court also provided M Civ JI 2.06(1), which provides:

Because the law requires that cases be decided only on the evidence presented 

during the trial and only by the deliberating jurors, you must keep an open mind 

and not make a decision about anything in the case until after you have (a) heard 

all of the evidence, (b) heard the closing arguments of counsel, (c) received all of 

my instructions on the law and the verdict form, and (d) any alternate jurors have 

been excused. At that time, you will be sent to the jury room to decide the case.

Sympathy must not influence your decision. Nor should your decision be 

influenced by prejudice regarding race, sex, religion, national origin, age, 

handicap, or any other factor irrelevant to the rights of the parties.
-13-

Based on the foregoing, the jury was properly instructed that its verdict must be based upon the 

evidence presented at trial. See Zaremba Equip, Inc, 302 Mich App at 25. As a result, the jury 

was properly instructed, and Blue Harvest is not entitled to a new trial. Jimkoski v Shupe, 282 

Mich App 1, 9; 763 NW2d 1 (2008). See also Guerrero, 280 Mich App at 665 (“Because the 

court’s instructions properly covered the relevant areas, the trial court did not err by declining to 

give [the] plaintiff’s second and third requested supplemental jury instructions.”).

VI.

Next, Blue Harvest contends that it is entitled to a new trial because the trial court denied 

its emergency motion to adjourn right before trial to allow it to secure the testimony of plaintiff’s 

primary care doctor. We disagree.

A trial court’s ruling on a motion to adjourn is reviewed for an abuse of discretion. 

Woodard, 473 Mich at 12. “An abuse of discretion occurs when the decision results in an 

outcome falling outside the range of principled outcomes.” Ronnisch Constr Group, Inc, 306 

Mich App at 208.

“A motion for an adjournment must be based on good cause . . . .” Zerillo v 

Dyksterhouse, 191 Mich App 228, 230; 477 NW2d 117 (1991). Pursuant to MCR 2.503(C):

(1) A motion to adjourn a proceeding because of the unavailability of a 

witness or evidence must be made as soon as possible after ascertaining the facts.

(2) An adjournment may be granted on the ground of unavailability of a 

witness or evidence only if the court finds that the evidence is material and that 

diligent efforts have been made to produce the witness or evidence.

(3) If the testimony or the evidence would be admissible in the 

proceeding, and the adverse party stipulates in writing or on the record that it is to 

be considered as actually given in the proceeding, there may be no adjournment 

unless the court deems an adjournment necessary. 

A trial court properly denies a motion for adjournment in cases that involve “some combination 

of numerous past continuances, failure of the movant to exercise due diligence, and lack of any 

injustice to the movant.” Tisbury v Armstrong, 194 Mich App 19, 20; 486 NW2d 51 (1991).

In this case, at the motion hearing regarding Blue Harvest’s motion to adjourn trial, the 

trial court explained that Blue Harvest failed to prepare a witness list and did not indicate that it 

was relying on plaintiff’s witness list. In addition, Blue Harvest had access to the doctor’s 

medical records, and it could have subpoenaed the doctor to appear at trial. The trial court 

concluded that Blue Harvest could not claim prejudice for not having the opportunity to crossexamine a witness who was not testifying at trial (because plaintiff no longer planned to have 

him testify and Blue Harvest did not submit a witness list). Ultimately, the trial court determined 

that Blue Harvest created its own problem by not preparing a witness list and that there were 

other means by which the evidence could be presented (medical records). Thus, the trial court 

denied Blue Harvest’s motion for an adjournment.
-14-

Based on the foregoing, the trial court did not abuse its discretion in denying Blue 

Harvest’s motion for an adjournment. See Woodard, 473 Mich at 12. Although this was its first 

motion to adjourn, Blue Harvest failed to exercise due diligence and neglected to provide a 

witness list. See Tisbury, 194 Mich App at 20. Further, Blue Harvest has not established that it 

suffered any injustice as a result of the trial court’s denial because it had the medical records and 

plaintiff did not call the doctor to testify; therefore, Blue Harvest was not denied the opportunity 

to cross-examine a witness who testified at trial. See id. As a result, the trial court did not abuse 

its discretion in denying Blue Harvest’s motion for an emergency adjournment. See Woodard, 

473 Mich at 12.

VII.

Lastly, Blue Harvest asserts that it was entitled to partial JNOV or remittitur because the 

jury awarded $100,000 in lost wages even though plaintiff was medically cleared to return to 

work and accepted a retirement package from his employer. We disagree.

This Court reviews a trial court’s decision to deny a motion for JNOV de novo. 

Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278, 284; 602 NW2d 854 (1999). 

This Court will “view all legitimate inferences from the evidence in the light most favorable to” 

the nonmoving party. Id. “Only if the evidence so viewed fails to establish a claim as a matter 

of law is JNOV appropriate.” Id.

“This Court reviews a trial court’s decision to deny a motion for remittitur for an abuse of 

discretion.” Diamond v Witherspoon, 265 Mich App 673, 692; 696 NW2d 770 (2005). “When 

reviewing a trial court’s decision regarding remittitur, this Court must view the evidence in the 

light most favorable to the nonmoving party.” Id.

Although plaintiff was medically cleared to return to work by his hip surgeon in February 

2015, he testified at trial that he was unable both mentally and physically to return to work. In 

addition, he testified that he only accepted a retirement package because he was injured, and that 

he originally planned to work until he was 66 years old (about two additional years). The jury 

was entitled to believe him. See Guerrero, 280 Mich App at 669 (“It is the jury’s responsibility 

to determine the credibility and weight of the trial testimony.”). Further, plaintiff submitted 

evidence showing that his yearly income averaged about $100,000 before he was injured. Thus, 

viewing the evidence in a light most favorable to plaintiff, there was evidence supporting the 

jury’s $100,000 wage-loss award, and the trial court properly denied Blue Harvest’s motion for 

JNOV or remittitur. See Diamond, 265 Mich App at 692; Badalamenti, 237 Mich App at 284.

Affirmed. 

/s/ Thomas C. Cameron 

/s/ Christopher M. Murray 

/s/ Anica Letica