Owens v. Allis-Chalmers Corp.

• Decision Date: 23 November 1982
• Docket Number: ALLIS-CHALMERS,No. 8,Docket No. 61965,8
• Citation: 414 Mich. 413,326 N.W.2d 372
• Parties: Sallie Mae OWENS, Administratrix of the Estate of Dan Owens, Jr., Deceased, Plaintiff-Appellant, v.CORPORATION, a corporation, Defendant-Appellee. Calendar414 Mich. 413, 326 N.W.2d 372
• Court: Michigan Supreme Court

Page 372

326 N.W.2d 372

Sallie Mae OWENS, Administratrix of the Estate of Dan Owens Jr., Deceased, Plaintiff-Appellant, v. ALLIS-CHALMERS CORPORATION, a corporation Defendant-Appellee.

Docket No. 61965.

Calendar No. 8.

414 Mich. 413, 326 N.W.2d 372

Supreme Court of Michigan.

Argued June 3, 1980.

Decided Nov. 23, 1982.

Goodman, Eden, Millender & Bedrosian by Robert A. Koory, Detroit, Hurwitz & Karp by Miles A. Hurwitz, Dearborn Heights, for plaintiff-appellant.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Daniel L. Garan, Detroit, for defendant-appellee; Gromek, Bendure & Thomas by Mark R. Bendure, Detroit, of counsel.

Michigan Trial Lawyers Ass'n, Lansing, Richard F. Schaden, P.C. by Richard F. Schaden, Victoria C. Heldman, Detroit, for amicus curiae, Michigan Trial Lawyers Ass'n.

Beaumont, Smith & Harris by Dwight H. Vincent, Detroit, and John F. Burns, for Michigan Mfrs. Ass'n.

COLEMAN, Justice.

In this products liability case, plaintiff appeals from a directed verdict granted in the circuit court and affirmed in the Court of Appeals. She argues that the testimony of her expert witness created a question of fact for the jury. We disagree, and affirm the decision of the trial court, but for reasons different from those of the Court of Appeals.

I

Leave to appeal was granted in order to consider the following questions:

1. Does a manufacturer's compliance with industry or governmental standards in a products liability action preclude the jury from determining whether such conduct was reasonable?

2. Is the test for assessing a manufacturer's liability to persons injured by its product whether the risk is unreasonable and foreseeable by the manufacturer, and not whether the risk is patent or obvious?

After the briefs were filed and oral arguments were heard, the Court requested the parties to file supplemental briefs addressing the following added issues:

3. Did the trial court err, in light of MRE 705, in holding that the testimony of plaintiff's expert witness did not create a question of fact for the jury?

4. Does a manufacturer of a vehicle have a duty to design and manufacture its products so as to eliminate any unreasonable risk of foreseeable injury to the occupants as a result of a collision for which the manufacturer may not be responsible?

II

Plaintiff's husband had been a qualified forklift driver at Great Lakes Steel for four or five years prior to September 30, 1970. He reported to work shortly after midnight on that date and was assigned to the location where he would be working for the evening. A short time later, other employees found that he had been in an accident en route to his assignment. No one witnessed the accident. For undetermined reasons, the forklift which he was operating had traveled off the roadway, struck a concrete-filled post, and turned over on its side. There were no skidmarks, and the post was knocked over to a 33-degree angle. Plaintiff's husband was pinned under the overhead protective guard on the forklift and was dead when discovered. After the accident, the forklift was tested and found to be in perfect mechanical order. The road was one regularly traveled by forklift drivers. There had been no complaints about the road condition, nor had there been any prior accident.

The physician called to the scene found that the decedent had suffered a fractured skull, which seemed to the doctor to be the most plausible cause of death. However, it could not be determined at the scene whether a heart attack or other physical failure preceded the accident. An autopsy was ordered but was not offered into evidence prior to the conclusion of plaintiff's proofs and the directed verdict of the trial court. Plaintiff's motion in limine to suppress the autopsy report of 0.32% alcohol in the decedent's urine was denied by the trial judge.

Plaintiff sued the manufacturer of the forklift, Allis-Chalmers Corporation, utilizing theories of negligence, implied warranty, and strict liability. At trial she sought, inter alia, to prove that defendant's negligence or some defect in the vehicle had caused the accident and that the stability of the forklift had not been properly tested. She also sought to prove that the design of the forklift was defective for failing to provide some sort of factory-installed driver restraint that would have prevented the decedent's ejection during the rollover and, hence, would have prevented his being pinned under the overhead guard.

However, on appeal, plaintiff does not challenge that portion of the trial court's directed verdict which found no evidence that either the forklift's collision with the post or the rollover was caused by a defect in the forklift or the manufacturer's negligence. She did appeal the denial of her motion in limine to the Court of Appeals, but does not pursue that issue in her appeal to this Court.

The issue she presents to us is whether she established a prima facie case that the forklift was defectively designed because of its failure to include some sort of driver restraint as standard equipment.

In seeking to prove defective or negligent design, the plaintiff relied on the testimony of one expert witness, Joseph Harris. Mr. Harris was employed as an independent consulting physicist, and previously had worked for General Motors for 12 years in the area of vehicle safety. He had never designed a forklift, nor any part of one, and had not worked in conjunction with their manufacture. He had operated one during a summer about 30 years prior to trial, but not since. Apart from preparing for this litigation, the record is not clear concerning whether any of his work in the area of vehicle safety had related specifically to forklifts. He testified, however, that a forklift was just another type of vehicle to which much of his work on vehicles in general would be applicable.

Plaintiff's expert gave his opinion that a rollover was a foreseeable type of forklift accident. He also stated that it was foreseeable that a forklift driver could be pinned under the overhead protective guard in the event of a rollover. The overhead protective guard, which consisted of four posts and an overhead screen, is a safety device used on forklifts in order to prevent objects from falling on the driver's head. Mr. Harris recognized the guard as being a proper safety device, but testified that when it is used some sort of driver restraint should be utilized to keep the driver from being ejected through the open sides of the forklift in the event of a rollover.

He suggested four types of driver restraints that might have been effective: first, a seat belt; second, a cage-type enclosure; third, a bar like those used on carnival rides; and fourth, an encapsulating seat which would have arms that to some extent would restrict a driver's movement. He gave his opinion that had a driver restraint been used the decedent might still have been injured, but he might not have been crushed.

The cage-type enclosure which he suggested was offered by the defendant and other forklift manufacturers as an option. It had been offered to plaintiff's employer, but was not purchased.

Plaintiff's expert testified that he was not aware of any law, safety regulation, standard, or policy that required or suggested the use of driver restraints on forklifts. He also did not know of any manufacturer which provided seat belts or any driver restraints as standard equipment. ¹ He had not seen driver restraints on the kind of forklift involved in this accident.

Evidence was admitted that union employees at decedent's workplace indicated after decedent's death that they would not wear seat belts if they were provided because they considered it more dangerous to be trapped in a forklift during a rollover. They would not be able to jump free. Many kinds of "protective" devices were tested and found to be more dangerous than the model used.

At the close of plaintiff's proofs, the defendant moved for a directed verdict, arguing, inter alia, that the record lacked any basis for the expert witness's assertion that driver restraints were needed, and that something more than the witness's mere unsubstantiated assertion was necessary to send this case to the jury. The plaintiff argued that on the basis of the expert's testimony, the question whether the design was defective should go to the jury on a strict-liability theory.

Circuit Judge Horace W. Gilmore determined that neither a negligent-design theory nor a strict-liability theory was supported by the record. He assumed that the rule of Rutherford v. Chrysler Motors Corp., 60 Mich.App. 392, 231 N.W.2d 413 (1975), and Larsen v. General Motors Corp., 391 F.2d 495 (CA 8, 1968), would apply to the forklift industry and stated:

"[These cases do] not mean that the industry has to design a totally crashproof, injuryproof forklift. [They mean] that the manufacturer has a duty to design and manufacture so as to eliminate any unreasonable risk of foreseeable injury to its occupants as a result of a collision. Now I find nothing in this record other than again the bold assertions of Mr. Harris without supporting data of any standard whatever or any showing that you could say there is an unreasonable risk of foreseeable injury of this kind because of the design of this vehicle. It just is not on this record." (Emphasis added.)

The plaintiff appealed the directed verdict to the Court of Appeals. The Court of Appeals affirmed, but on grounds different from those utilized by the trial judge. Owens v. Allis-Chalmers Corp., 83 Mich.App. 74, 81, 268 N.W.2d 291 (1978). The majority concluded that

"for a plaintiff to establish a question of fact as to a manufacturer's breach of duty in design defect products liability litigation, evidence of the following must be presented:

(1) That the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary...