Michigan Court of Appeals · 1965 · Civil Procedure
138 N.W.2d 501 (1965)
Updated
Civil Procedurenew trialpartial new trialliabilitydamagesstandard of careindustry customexpert-like lay testimony
Facts
Defendants operated a beauty shop in Flint and gave plaintiff a bleach and color treatment without a pretreatment patch test. Plaintiff suffered head and facial injuries and sued for damages. At trial, the court excluded defendants' testimony about the standard of care observed by beauty shops in the Flint area when administering such treatment. After the jury returned a $10,000 verdict for plaintiff, the trial court granted a new trial because that exclusion was erroneous, but limited the retrial to liability.
Issue
Whether the trial court properly granted a new trial based on exclusion of defendants' testimony about local beauty-shop practices, and whether the new trial could properly be limited to liability alone rather than extending to damages as well.
Rule
Testimony concerning the standard of care observed in the relevant industry is admissible where witnesses have personal knowledge of industry practices, because no one is held to a higher standard of care than the average in the industry. Although court rules authorize limited new trials, they are not favored; liability and damages ordinarily may not be separated, and only where liability is clear has a retrial on damages alone been recognized.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In a negligence suit in Detroit, Maya Ortiz alleges that Lakeshore Skin Studio burned her during a chemical peel. At trial, the studio's owner offers testimony that, based on 18 years running spas, attending statewide esthetics conferences, and personally observing how other spas perform peels in Wayne County, most local spas do not use the extra screening step Maya says was required. The judge excludes the testimony as hearsay, and the jury finds for Maya.
On appeal, what is the strongest argument regarding the excluded testimony?
Explanation. The governing rule is that testimony about the standard of care observed in the relevant industry is admissible when the witness has personal knowledge of those practices through experience and observation. The majority rejected a hearsay objection where the witnesses knew trade practices from years in the business, conventions, and observing others. It also reasoned that no one is held to a higher standard of care than the average in the industry.