Antcliff v. State Emp. Credit Union

• Decision Date: 05 February 1980
• Docket Number: Docket No. 78-1537
• Citation: 290 N.W.2d 420,95 Mich.App. 224
• Parties: Howard ANTCLIFF and Geraldine Antcliff, Plaintiffs-Appellants, v. STATE EMPLOYEES CREDIT UNION, Defendant, and Spider Staging Sales Company, Inc., a Washington Corporation doing business in Michigan, Defendant-Appellee, and Manson, Jackson & Kane, Defendants. CHRISTMAN CONSTRUCTION COMPANY, INC., Defendant and Third-Party Plaintiff, v. AUSTIN'S PAINTERS, FLINT, INC., (Associated Indemnity Corporation), Third-Party Defendant. 95 Mich.App. 224, 290 N.W.2d 420
• Court: Court of Appeal of Michigan — District of US

Page 420

290 N.W.2d 420

Howard ANTCLIFF and Geraldine Antcliff, Plaintiffs-Appellants, v. STATE EMPLOYEES CREDIT UNION, Defendant, and Spider Staging Sales Company, Inc., a Washington Corporation

doing business in Michigan, Defendant-Appellee,

and

Manson, Jackson & Kane, Defendants.

CHRISTMAN CONSTRUCTION COMPANY, INC., Defendant and Third-Party Plaintiff, v. AUSTIN'S PAINTERS, FLINT, INC., (Associated Indemnity

Corporation), Third-Party Defendant.

Docket No. 78-1537.

95 Mich.App. 224, 290 N.W.2d 420

Court of Appeals of Michigan.

Feb. 5, 1980.

Released for Publication April 4, 1980.

[95 MICHAPP 226] Thomas H. Hay, Lansing, for Antcliff.

Webb A. Smith, Lansing, for State Credit Union.

William A. Joselyn, Detroit, for Spider Staging Sales.

Fred C. Newman, Lansing, for Manson Jackson & Kane.

Charles A. Nelson, Jackson, for Christman Const.

M. Dale McKay, Lansing, for Austins Painters, Inc.

Gary W. Parker, Detroit, for Asso. Indemnity Corp.

Before CAVANAGH, P. J., and MAHER and VAN VALKENBURG, ^* JJ.

MAHER, Judge.

Plaintiffs appeal as of right from a jury verdict of no cause of action as against Spider Staging Sales Company, Inc., the sole remaining defendant at the time of trial (hereinafter Spider).

This lawsuit arose out of a construction accident occurring on July 7, 1970, at the site of the State Employees Credit Union building in Lansing. Plaintiff Howard Antcliff was injured when the scaffold upon which he was working fell to the ground, taking him with it. He is permanently and totally disabled as a result of the accident, and requires round-the-clock nursing care.

Geraldin Antcliff, wife of Howard, and Howard, by his guardian (Geraldine), brought this action against Christman Construction Company, Inc., general contractor on the project; Manson, Jackson & Kane, Inc., architects; State Employees Credit Union, owner of the building under construction; and Spider Staging Sales Company, Inc., manufacturer of the scaffolding. Christman filed a third-party complaint for indemnification against Austin's Painters, Flint, Inc., Antcliff's employer at [95 MICHAPP 227] the time of the accident. Prior to trial, plaintiffs settled their claim against Christman Construction and released Christman, the architect, and the credit union. The case proceeded to trial on theories of negligence and breach of express and implied warranties by Spider. ¹

Defendant Spider manufactures and sells powered staging equipment for use in construction and maintenance of buildings, bridges and similar structures. The particular unit involved in this litigation is their model ST-18, consisting of a metal platform with railings, a motorized winch mounted below the platform, and a wire rope wound on the winch and leading through the platform and through a guide mounted above the platform to some means of support overhead. On the day of the accident, Howard Antcliff (hereinafter plaintiff) and James Hathcock, a co-worker, were standing on an apparatus consisting of two ST-18 units connected by a 25-foot aluminum platform manufactured for this purpose by Spider. ² Each unit was suspended from a 4 X 4 wooden beam (called an outrigger) extending approximately 15 inches over the edge of the roof parapet and counterweighted by means of sand bags at the other end of the beam.

The sole eyewitness to the accident was James Hathcock. ³ Hathcock testified as follows: Plaintiff and he had been working at opposite ends of the scaffold, covering windows on the south face of the [95 MICHAPP 228] building in preparation for the next day's sandblasting operation; Hathcock walked to the east end of the scaffold, where plaintiff was working, to borrow a cigarette; plaintiff was standing on the platform of the ST-18 itself; as Hathcock took a cigarette and turned away, he felt the scaffolding fall out from under him; Hathcock grabbed for plaintiff, apparently without success; he remembered seeing plaintiff crouched in the "buggy" as it fell; Hathcock remained suspended by his safety line; plaintiff's safety line apparently failed.

Post-accident investigation revealed that the outrigger on the east end of the scaffold had pulled loose from the counterweights and fallen to the ground and that the west outrigger had broken at the point where it crossed the parapet. The wreckage of the scaffold lay beneath the west outrigger, at right angles to the wall on which Antcliff had been working. It was plaintiffs' theory that the west outrigger broke first, throwing the entire weight of the scaffolding on the east outrigger, causing it to pull out from its counterweights and plunging the scaffold to the ground. Spider on the other hand, theorized that the east outrigger pulled loose first, throwing the entire weight on the west outrigger and causing it to break. ⁴

Plaintiffs alleged that Spider was negligent in failing to supply metal outriggers with their staging devices, in failing to warn users not to use wooden outriggers, in advising plaintiff's employer to use wooden supports, in failing to instruct users of its product in proper rigging techniques and in designing and selling a product which put dangerous sudden stress on the suspension system as a [95 MICHAPP 229] result of slippage of the cable on the drum of the winch, caused by uneven winding.

Plaintiffs further alleged that Spider breached the implied warranties of merchantability and fitness for purpose by falsely representing that its product could safely be suspended from wooden outriggers, that the ST-18 was a complete and safe system, that the cable would level wind and would not put undue stress on the suspension system by cable slippage, that the product could be operated without special instruction, and that Spider's repair manual and advertising brochure were adequate to instruct users in safe rigging techniques.

On the first day of trial, prior to the presentation of any evidence, Spider moved for the suppression of evidence intended to show that Spider breached its duty to instruct in proper rigging techniques, on grounds that the law imposes no such duty on Spider. Spider further moved to suppress evidence relating to an alleged duty to supply metal outriggers with its staging units. The court ruled that evidence regarding breach of the duty to warn against use of inadequate materials for outriggers would be received, but made no express ruling on duty to instruct in rigging techniques. Regarding the duty to supply metal outriggers, the court ruled that the law imposed no such duty upon a manufacturer. The issue of duty to instruct purchasers in proper rigging techniques reappeared later in the trial, at which time the trial court ruled that Spider had no such duty to purchasers of its equipment.

Plaintiffs claim on appeal that the trial court erred in ruling that Spider had no duty to supply metal outriggers and no duty to instruct in proper rigging techniques. Plaintiffs also assign as error certain rulings on admissibility of evidence, certain[95 MICHAPP 230] of the instructions to the jury, and the court's refusal to give certain instructions requested by the plaintiffs.

Plaintiffs' first claim is that the trial court erred in ruling that Spider was under no duty to supply metal outriggers along with its ST-18 model and in refusing to admit evidence and to instruct the jury regarding such a duty. Plaintiffs argue that the outriggers are a safety device which must be included as part of a total package in order to render the ST-18 reasonably safe for its intended or foreseeable uses. In support of their argument, plaintiffs cite several cases involving, for the most part, industrial machines which lacked adequate shields or other safety devices. See, for example, Casey v. Gifford Wood Co., 61 Mich.App. 208, 232 N.W.2d 360 (1975) (failure to provide shield for ice crushing machine), Byrnes v. Economic Machinery Co., 41 Mich.App. 192, 200 N.W.2d 104 (1972) (providing shield which had to be removed for maintenance of machine), and McKinch v. Dixon, 391 Mich. 282, 215 N.W.2d 689 (1974) (failure to provide screen to prevent dirt from entering brake cylinder).

There is no question that a manufacturer is under a duty to users of its product to furnish a product which is not unreasonably dangerous when used in the manner intended or in a manner reasonably foreseeable by the manufacturer. Elsasser v. American Motors Corp., 81 Mich.App. 379, 265 N.W.2d 339 (1978). A product may be rendered unreasonably dangerous by the omission or inadequacy of a safety device. Coger v. Mackinaw Products Co., 48 Mich.App. 113, 210 N.W.2d 124 (1973).

The difficulty with plaintiffs' argument is that the outriggers are not a device which may be [95 MICHAPP 231] integrated into the ST-18 itself to make it safer, but a separate element in a system of which the ST-18 is also a component. Plaintiffs argue that because the ST-18 must be suspended by some means in order to be used, the outriggers should be considered an integral part of the ST-18 just as, for example, a safety shield is considered part of an ice crusher, see Casey v. Gifford Wood Co., supra. However, although the ST-18 must unquestionably be suspended by some means, it need not necessarily be suspended by outriggers. Testimony at trial revealed that staging like the ST-18 may be suspended by several methods, only one of which requires use of outriggers. ⁵ There are many situations in which use of outriggers would be inadvisable, dangerous or simply impossible (e. g. suspending staging from a bridge). To hold, as plaintiffs urge, that outriggers are an integral part of Spider's product is to ignore the evidence adduced at trial.

The outriggers, parapet hooks, tank rollers and other suspension devices may be viewed either as separate components of a system or as accessories to be used with the ST-18. In either case, Spider is under no duty to supply one or all of the suspension devices simply because it undertook to furnish an ST-18 to ...