Dooms v. Stewart Bolling & Co.

• Decision Date: 23 March 1976
• Docket Number: 22207,Nos. 19957,s. 19957
• Citation: 68 Mich.App. 5,241 N.W.2d 738
• Parties: Mack DOOMS, Plaintiff-Appellee and Cross-Appellant, v. STEWART BOLLING AND COMPANY, Defendant-Appellant, v. MICHIGAN MUTUAL LIABILITY INSURANCE COMPANY, Defendant and Cross-Appellee. Willie SANDERS, Plaintiff-Appellee, v. STEWART BOLLING AND COMPANY, Defendant-Appellant, v. MICHIGAN MUTUAL LIABILITY INSURANCE COMPANY, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 738

241 N.W.2d 738

68 Mich.App. 5

Mack DOOMS, Plaintiff-Appellee and Cross-Appellant, v. STEWART BOLLING AND COMPANY, Defendant-Appellant, v. MICHIGAN MUTUAL LIABILITY INSURANCE COMPANY, Defendant and Cross-Appellee.

Willie SANDERS, Plaintiff-Appellee, v. STEWART BOLLING AND COMPANY, Defendant-Appellant, v. MICHIGAN MUTUAL LIABILITY INSURANCE COMPANY, Defendant.

Nos. 19957, 22207 Court of Appeals of Michigan.

March 23, 1976.

Released for Publication May 27, 1976.

Harvey, Kruse & Westen, P.C., by John A. Kruse, Detroit, for Stewart Bolling & Co. in No. 19957.

James D. Hunter, Detroit, for Stewart Bolling & Co. in No. 22207.

Rains, Block & Dean by Carol A. Dean, Detroit, for Dooms and Sanders.

Martin, Bohall, Joselyn, Halsey & Rowe, P.C. by Lawrence A. Bohall, Detroit, for Mich. Mut. in No. 22207.

David V. Martin, Detroit, for Mich. Mut. in No. 19957.

Before J. H. GILLIS, P.J., and ALLEN and KELLY, JJ.

ALLEN, Judge.

The Court is presented with relatively significant questions pertaining to the law of product liability in Michigan. The circumstances foreshadowing this appeal began when plaintiffs, Messrs. Dooms and Sanders, suffered servere hand injuries on a rubber milling machine during the course of their employment at Detroit Rubber Company on 3 June 1969. ¹ Each plaintiff commenced separate suits against Stewart Bolling and Company (the manufacturer of the machine) and Michigan Mutual Liability Insurance Company (the insurer of plaintiffs' employer). The cases were subsequently consolidated. Plaintiffs claimed Stewart Bolling was liable on the grounds that the machine did not have adequate safety devices incorporated into the design, and that the safety trip cable on the machine was inaccessible to the operator at critical points. Plaintiffs claimed liability against Michigan Mutual on the theory that it had breached its contract of workmen's compensation insurance in failing to warn of the unsafe condition of the machine after having undertaken an inspection. Proof was presented on both sides, and the jury returned verdicts against Stewart Bolling--$300,000 for Dooms and $50,000 for Sanders. It rendered a verdict of no cause of action in favor of Michigan Mutual. Stewart Bolling moved for a new trial which was denied. Plaintiff Sanders filed motions for Additur and new trial. The trial judge ordered defendant Stewart Bolling to stipulate to an Additur of $150,000 as to Sanders or proceed to a new trial on the issue of damages. This appeal followed.

I WAS IT REVERSIBLE ERROR FOR THE TRIAL COURT IN A PRODUCT LIABILITY SUIT TO INSTRUCT ON STRICT LIABILITY?

Stewart Bolling claims error occurred when the trial judge instructed the jury on three possible theories of recovery: negligence, implied warranty, and strict liability. It argues that our Supreme Court has never suggested that one could recover for personal injury by asserting a claim of strict liability against a manufacturer, and maintains that the instruction on strict liability amounted to directing verdicts for plaintiffs.

Plaintiffs refer the Court of the substance of the instruction. They argue essentially that it isn't prejudicial error for a trial judge to put a strict liability label on an otherwise recognized cause of action.

It is undisputed that in Michigan a plaintiff may proceed under at least two tortious theories of recovery in product liability: negligence and implied warranty. Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 135, 90 N.W.2d 873 (1958); Manzoni v. Detroit Coca-Cola Bottling Co., 363 Mich. 235, 241, 109 N.W.2d 918 (1961); Kupkowski v. Avis Ford, Inc., 395 Mich. 155, 235 N.W.2d 324 (1975). However, the debate continues with respect to whether the product liability theory styled strict liability in tort exists in this state. In Baker v. Rosemurgy, 4 Mich.App. 195, 200, 144 N.W.2d 660, 663 (1966), the Court seems to have recognized the theory:

'Plaintiff's theory of strict liability in tort falls also. Even if the test set forth in 2 Restatement of the Law of Torts, 2d, § 402a, for this special form of liability were applied to a rifle, plaintiff's own conduct again defeats a cause of action.'

Moreover, a Federal court and legal commentators refer to Michigan as a strict liability jurisdiction. ² On the other hand, a recent panel of this Court in Rutherford v. Chrysler Motors Corp., 60 Mich.App. 392, 394 fn. 1, 231 N.W.2d 413 (1975), noted that the doctrine of strict liability in tort is nonexistent in Michigan. In Cova v. Harley Davidson Motor Co., 26 Mich.App. 602, 612, 182 N.W.2d 800 (1970), the Court appeared willing to assent to its De facto existence but disapproved of the label 'strict liability'. Throughout the opinion in Williams v. Detroit Edison Co., 63 Mich.App. 559, 234 N.W.2d 702 (1975), this Court used the terms implied warranty in law synonymously with strict liability in tort, noting that which of the two labels ought to be used need not be decided to resolve the case. Finally, we mention in passing that the Michigan Supreme Court has not directly endorsed any tortious theories of recovery in product liability beyond that of negligence and implied warranty.

We believe that sound reasons militate against adding another theory to the law of product liability in this state. Therefore, we refuse to sanction an instruction on strict liability in tort in a product liability case. First and foremost, we believe such a theory is unnecessary. As will be shown, it appears inconceivable that a plaintiff might fail to recover under our tort warranty of fitness theory, yet recover under a strict liability in tort theory. Secondly, as emphasized in Cova, supra, and Chestnut v. Ford Motor Co., 445 F.2d 967 (C.A.4, 1971), adding more labels most likely enhances the chance of causing confunsion. It would seem that the law of product liability is plagued chance of causing confusion. It would seem not desire to contribute to this legal quagmire. ³

The question remains whether the giving of an instruction on strict liability in the instant case requires that we reverse. We begin with the instruction involved:

'We come now to the third theory upon which the plaintiffs bring this suit * * * (t)hat has to do with this matter of strict liability of a seller of a product for physical harm to the user or consumer. It's the law that anyone who sells any product in a defective, Unreasonably dangerous condition to the user, or consumer is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to the property: first, the seller is engaged in the business of selling such a product; and, secondly, that it's specifically expected to, or does reach the user or consumer without substantial change of the condition it's sold. The rules which I have just given you apply, although first, the seller has exercised all possible care in the preparation and sale of his product; and secondly, that the user or consumer has not bought the product from, or entered into any contractual relations with the seller. Now, in your consideration of the foregoing, you should apply the instructions heretofore given in connection with the burden of proof and proximate cause. In negligence cases, with regard to the claim of product defect, it is the law of our state that the plaintiff must show you that there was, in fact, a defect in the product at the time it left the possession and control of the defendant. Therefore, if plaintiff has not proven to your satisfaction that there was a defect in existence at the time it left the possession and control of the defendant, or that any such defect was not a proximate cause of the accident, you should find in favor of the defendant in connection with this theory of the plaintiff. If there has been a modification of the machine from the time it left the possession and control of the defendant Bolling, and that modification was the sole cause of the accident and injury in these cases, or in either case, you should return a verdict in favor of the defendant, accordingly.' (Emphasis added.)

The first part of the instruction parallels the language in Restatement Torts 2d, § 402A. The remainder described those elements a plaintiff must prove to establish a prima facie case in product liability, irrespective of the theory of liability:

'Common to most products liability cases, regardless of the theory of liability, is the nature of certain proofs required to support a finding of liability. In Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 98--99, 133 N.W.2d 129 (1965), this Court commented on the nature of these proofs.

"As made clear above, a plaintiff relying upon the rule must prove a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains. When able to do that, then and only then may he recover against the manufacturer of the defective product.'

'While the Court in Piercefield, supra, was concerned with a breach of warranty theory, the above elements of liability are equally applicable to a lawsuit sounding in negligence.' Caldwell v. Fox, 394 Mich. 401, 409--410, 231 N.W.2d 46, 50 (1975). ⁴

What distinction, other than defenses, exists between the theory of implied warranty in law, the theory of negligence and strict liability? ⁵ The key appears to lie in the term defect. When proceeding under a theory of negligence, the element of defect is established by proofs that the manufacturer failed to do what a reasonably prudent person would do or did what a reasonably prudent person would not have done under the circumstances. Under implied warranty imposed by law a defect is established by proof that the product is not reasonably fit for the use intended, anticipated or reasonably foreseeable. See Michigan Standard Jury Instructions, 25.21 and 25.23. Under the strict liability in tort theory in Restatement Torts 2d, § 402A, a product not only must be...