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Michigan Supreme Court Lansing, Michigan

Opinion
WILLIAM FRANK WARD, Plaintiff-Appellee, v CONSOLIDATED RAIL CORPORATION,

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED MARCH 8, 2005

No. 124533

Defendant-Appellant. _______________________________ PER CURIAM The issue before us concerns the consequence, if any, of defendant's inability to produce an allegedly defective locomotive handbrake at trial. In this case, the trial court instructed the jury that because defendant disposed of the handbrake, it was

presumed to be defective and the jury could infer that the missing evidence was was given unfavorable despite the to defendant. that This

instruction

fact

defendant

produced evidence that it discarded the handbrake in the regular course of business, The jury for reasons a unrelated verdict to for

plaintiff's

claim.

returned

plaintiff. remanded.1

The Court of Appeals affirmed, in part, and

We conclude that the jury instructions were flawed in two respects. First, the trial court erred when it

instructed the jury that the handbrake was presumed to be defective. evidence. the jury Such a presumption is not supported by the Second, the trial court erred when it instructed that it could draw an adverse inference, but

failed to explain that no inference should be drawn if defendant produce had the we a reasonable excuse for its failure were of to not

evidence. reverse the

Because part of

these the

errors Court

harmless,

Appeals

judgment concerning the Federal Safety Appliance Act, 49 USC 20302, and remand this case for a new trial on that claim before a properly instructed jury. I. BACKGROUND

Plaintiff, a railroad engineer, claimed that he was injured by a faulty handbrake that he was using to secure one of defendant's locomotives. two control levers. The braking system employs

The brake is engaged by moving the

application lever in an up-and-down arc; each upward stroke tightens a chain that runs from the lever to the brake.

Unpublished opinion per curiam, issued August 7, 2003 (Docket No. 234619). 2


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The brake is disengaged through a separate release lever. Plaintiff claimed that his back was injured when the

application lever unexpectedly stopped while he was in the middle of an upward stroke.2 Plaintiff reported his injury to his employer the next day. Defendant had inspected the locomotive four days

before plaintiff's accident and the handbrake was working properly at that time. In response to plaintiff's injury

report, the entire handbrake assembly was inspected again, this time by defendant's took trainmaster and and a the locomotive assembly, mechanism.

machinist. including

They the

apart brake

examined and

levers,

chain,

gear

They determined that the handbrake was functioning properly and returned the locomotive to service. Defendant's employees then operated the locomotive

regularly for more than two weeks, successfully using the application lever to engage the brake. Nineteen days after

plaintiff's injury, one of defendant's employees reported that the release lever jammed and that the handbrake could not be disengaged. facility in Elkhart, The locomotive was moved to a repair Indiana, where it was examined by

Defendant's trainmaster had once before experienced difficulty engaging the handbrake; the evidence showed that this is a fairly common occurrence and is not considered a defect in the brake. 3


2

defendant's

maintenance

supervisor.

He

removed

and

discarded the entire handbrake assembly and installed a new one. The Elkhart maintenance supervisor was unaware of earlier report of a malfunction in the

plaintiff's

application lever. Plaintiff later. filed this lawsuit more than ten months

He theorized that the application lever stopped in

mid-stroke because of the presence of a repair link, or clevis, in the brake chain. negligent under the He alleged that defendant was Employers' Liability Act

Federal

(FELA), 45 USC 51 et seq., and that defendant violated both the Federal Locomotive Inspection Act (FLIA), 49 US 20701 et seq.,3 and the Federal Safety Appliance Act (FSAA), 49 USC 20302.4 In a motion for partial summary disposition, plaintiff informed the trial court that defendant discarded the

entire handbrake assembly and argued that he was entitled

The FLIA states, in relevant part, that a railroad carrier may "use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances . . . [a]re in proper condition and safe to operate without unnecessary danger of personal injury . . . ." 49 USC 20701(1). The FSAA states, in relevant part, that a railroad carrier may "use or allow to be used on any of its railroad lines . . . a vehicle only if it is equipped with . . . efficient hand brakes . . . ." 49 USC 20302(a)(1)(B). 4

4

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to

a

presumption

that

the

handbrake

was

defective.

Defendant argued that no adverse presumption should be made because the handbrake was discarded in the ordinary course of business following a malfunction in the release lever--a mechanism different from the one plaintiff theorized caused his injury. from Defendant its supported its position with an The

affidavit

Elkhart

maintenance

supervisor.

trial court resolved this issue in plaintiff's favor and reaffirmed its ruling before the start of trial. The jury was made aware of the presumption.

Plaintiff's counsel said, during opening statement: And even though they knew about the injury, they knew about these claims, the defect in this hardware, they destroyed the evidence. The railroad destroyed the evidence. They threw away the chain, they threw away the clevis, they threw away the entire handbrake even though they had this knowledge. And it is for this reason that this Court has concluded there is a presumption in this case that this handbrake was defective when Mr. Ward went to use it and got hurt on the evening of February 19, 1998. This theme was repeated during jury voir dire and closing arguments. After the close of evidence, the trial court reminded the jury of the presumption and instructed it that it could infer that the missing evidence would have been unfavorable to defendant:

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The Court made a determination that there was a presumption that the handbrake at issue was defective due to the fact that the handbrake clevis and chain were discarded by defendant. The defendant railroad has come forward with some evidence to rebut this presumption. Accordingly, the law requires that I instruct you as follows: Certain evidence relevant to this case, namely the handbrake, the clevis and chain, were not available at trial because they were destroyed while in the possession or control of the defendant. The Rules of Evidence provide that you, the jury, may infer that this evidence was unfavorable to the defendant. The jury returned a verdict for plaintiff. It found

that defendant was not negligent under the FELA and that the handbrake was "in proper condition and safe to operate without unnecessary danger of personal injury" as required by the FLIA. The jury concluded, however, that the

handbrake was not "efficient" as required by the FSAA and awarded plaintiff damages on this basis. Defendant appealed. The Court of Appeals held that

the trial court properly granted plaintiff a presumption of defect and properly instructed the jury.5 Defendant now seeks leave to appeal with this Court.6

Defendant raised a total of thirteen issues in the Court of Appeals. It obtained relief on one issue relating to the calculation of case-evaluation sanctions. We consider here only defendant's claim that the trial court erred when it granted plaintiff a presumption that the missing handbrake was defective and when it 6

6

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II.

STANDARD OF REVIEW Cox

We review claims of instructional error de novo.

v Flint Bd of Hosp Managers, 467 Mich 1, 8; 651 NW2d 356 (2002). Jury instructions should not omit material issues, defenses, or theories that are supported by the evidence. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). Instructional error warrants reversal if it

"resulted in such unfair prejudice to the complaining party that the failure with Mich to vacate the jury verdict would Johnson (1985); be v MCR

`inconsistent Corbet, 423

substantial 304, 327; 377

justice.'" NW2d 713

2.613(A). III. DISCUSSION The trial court's instructions to the jury blurred the distinction between presumptions and inferences and were not tailored to the evidence submitted by the parties. In Widmayer v Leonard, 422 Mich 280, 289-290; 373 NW2d 538 (1985), we explained that a presumption is a

"procedural device" that entitles the person relying on it to a directed verdict if the opposing party fails to

introduce evidence rebutting the presumption.

If rebuttal

instructed the jury on this issue. In all other respects, defendant's application for leave to appeal is denied. 7


evidence is introduced, the presumption dissolves, but the underlying inferences remain to be considered by the jury: Almost all presumptions are made up of permissible inferences. Thus, while the presumption may be overcome by evidence introduced, the inference itself remains and may provide evidence sufficient to persuade the trier of fact even though the rebutting evidence is introduced. But always it is the inference and not the presumption that must be weighed against the rebutting evidence. [Id. at 289.] It is well settled that missing evidence gives rise to an adverse presumption only when the complaining party can establish desire truth.'" to "`intentional destroy conduct indicating and thereby fraud and a the

[evidence]

suppress

Trupiano v Cully, 349 Mich 568, 570; 84 NW2d 747

(1957), quoting 20 Am Jur, Evidence,

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