No. The judge was wrong to limit the do-over trial. The court said that figuring out who is at fault and deciding how much money they should pay are closely connected. You can't really separate them unless it's 100% obvious who was at fault. Since the first trial had a mistake that could have changed the jury's mind about who was to blame, it's only fair that the new jury that decides fault also decides the payment.

Yes, the judge made a mistake. The beauty shop owners should have been allowed to talk about what's normal for safety in their business because they have a lot of experience. They've been to meetings with other beauty shops and seen how everyone else does things. This is important because businesses are only expected to be as careful as others in their industry. Also, when there's a mistake in figuring out if someone did something wrong, it can change how much money the jury thinks the hurt person should get. In Michigan, we usually don't split up those two decisions for a new trial unless it's really clear that the business did something wrong. There's no good reason to do it differently here. It's only fair that the same jury who decides if the beauty shop messed up should also decide how much money Ms. Doutre gets if they did.

<?xml version="1.0" encoding="utf-8"?> <opinion type="majority"> <author id="b133-5"> T. Gr. Kavanagh, J. </author> Defendants operate a beauty shop in Flint. On April 19,1962, plaintiff was given a bleach and color treatment by defendants without a pretreatment patch test. Plaintiff received head and facial injuries as a result of the treatment and sued for damages. During the trial defendants were not allowed to testify as to the standard of care observed by beauty shops in the Flint area when administering such treatment. The jury awarded plaintiff $10,000. Defendants filed a motion for a new trial. Such motion was granted and a new trial ordered but limited to the question of liability. Both parties appeal. The plaintiff alleges error in granting the new trial as to liability on the theory that the court was correct in the first place when he ruled at the trial that the proffered testimony on the standard of care was not admissible. The defendants allege the court erred in limiting the new trial to the issue of liability on the theory that the questions of liability and damages are so closely intertwined that they should be tried together. As to the plaintiff’s claim we find little merit. His objection is based on the theory that the defendants *90 could know of the practices of the trade in Flint only by hearsay. This is not supported by the record. The record shows that one of the defendants had been in the business for 24 years and the other for 14 years; they had attended conventions of beauticians and observed their practices and said they were abreast of the practices of other beauticians in Genesee county. We agree with the trial court’s last ruling that these witnesses should have been allowed to testify and that to exclude their testimony was error requiring’ a new trial. Such testimony is admissible because no one is held to a higher standard of care than the average in the industry. Barton v. Myers (1965), 1 Mich App 460. The limitation of the trial to the issue of liability only poses a more difficult problem. It has long been recognized that the questions of liability and damages are so closely intertwined that they may not usually be separated. The only exception the Michigan Supreme Court has so far recognized is in the case wherein “liability is clear” a retrial - of the issue of damage alone may be permitted. Trapp v. King (1965), 374 Mich 608. ■ In this case the court reiterated its position that despite the court rule authorizing it (GCK. .1963, 527.1), limited new trials are not favored. No compelling reason moves us to extend the rule. The trial judge’s opinion states: “This ruling (on the evidentiary question) may have materially influenced the jury on the liability issue. It could not; however, by any stretch of the imagination have affected the issue of damages.” . This bespeaks an assurance we do not share. . .In the case before us the damages are not liquidated and the liability was determined pursuant to a'trial in which an admitted error touching on liability was committed.. binder these circumstances *91 it seems to us that justice requires that the jury which determines the liability or lack of it should have the responsibility for measuring any damages. The trial court’s order for a new trial shall be extended to all of the issues. Costs are awarded defendants. <judges id="b135-7"> McGregor, P. J., and Fitzgerald, J., concurred. </judges> </opinion>

Defendants operate a beauty shop in Flint. On April 19, 1962 plaintiff was given a bleach and color treatment by defendants without a pretreatment patch test. Plaintiff received head and facial injuries as a result of the treatment and sued for damages

In action against operators of beauty shop for injuries allegedly resulting from hair coloring treatment given plaintiff without pretreatment patch test, exclusion of defendant's testimony as to standard of care observed by beauty shops in the area was error requiring a new trial, since defendants could not be held to a higher standard of care than the average in the industry …

—a case of first impression in Michigan, this Court was faced with the question of a new trial limited to the issue of liability.

In Michigan, "[i] t has long been recognized that the questions of liability and damages are so closely intertwined that they may not usually be separated."

Caveat: A few courts are unwilling to grant a new trial on the issue of liability alone, under the theory that the jury' s determination of damages invariably affected its decision as to liability.

Yes. A trial court errs by limiting a new trial to the issue of liability when the original trial contained an admitted error touching on that very issue. The questions of liability and damages are so closely intertwined that they generally may not be separated for a new trial. The only recognized exception is when liability is clear, which is not the case here. Justice requires that the same jury that determines liability should also be responsible for measuring any corresponding damages.

Yes, the exclusion of testimony regarding the standard of care in the beauty industry was an error requiring a new trial, and the new trial should not be limited to liability only, but should include both liability and damages. I reach this conclusion because the defendants, with 24 and 14 years of experience respectively, could provide firsthand knowledge of the standard of care based on their attendance at industry conventions and observations of other beauticians' practices in the county. This testimony is crucial, as no one is held to a higher standard than the average in the industry. Furthermore, the questions of liability and damages are so closely intertwined that an error affecting the determination of liability could also influence the jury's assessment of damages. It is well-established in Michigan that liability and damages are so closely connected that they should not be separated for a new trial, except in cases where liability is clear. No compelling reason exists to extend this narrow exception. Therefore, justice requires that the jury determining liability should also have the responsibility of measuring any damages.

Doutre v. Niec

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Majority - T. Gr. Kavanagh, J.

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