Bouverette v. Westinghouse Elec. Corp.

• Decision Date: 18 June 2001
• Docket Number: Docket No. 219451.
• Citation: 628 N.W.2d 86,245 Mich. App. 391
• Parties: Beverly BOUVERETTE, as Personal Representative for the Estate of David Bouverette, deceased, Plaintiff-Appellee, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant/Counterdefendant-Appellant, and Hy Tek Systems, Inc., Defendant/CounterPlaintiff/Third-Party Plaintiff, and Cutler Hammer, Inc., Defendant/Counterdefendant, and Medar, Inc., Defendant/Counterplaintiff/Third-Party Defendant.
• Court: Court of Appeal of Michigan — District of US

628 N.W.2d 86

245 Mich. App. 391

Beverly BOUVERETTE, as Personal Representative for the Estate of David Bouverette, deceased, Plaintiff-Appellee, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant/Counterdefendant-Appellant, and Hy Tek Systems, Inc., Defendant/CounterPlaintiff/Third-Party Plaintiff, and Cutler Hammer, Inc., Defendant/Counterdefendant, and Medar, Inc., Defendant/Counterplaintiff/Third-Party Defendant.

Docket No. 219451.

Court of Appeals of Michigan.

Submitted April 10, 2001, at Detroit.

Decided April 20, 2001, at 9:10 a.m.

Released for Publication June 18, 2001.

Anderson & Wonch, P.C. (by Nancy A. Wonch) and Hay & O'Rourke, P.C. (by Thomas H. Hay), Lansing, for the plaintiff.

Ogne, Alberts & Stuart, P.C. (by Wayne L. Ogne and Michael A. Ross) and Benesch, Friedlander, Coplan & Aronoff LLP (by Mark D. Tucker and Marc S. Blubaugh), Troy, Columbus, OH, for the defendant.

Before HOLBROOK, JR., P.J., and HOOD and NEFF, JJ.

PER CURIAM.

In this wrongful death and products liability action, defendant¹ Westinghouse Electric Corporation (herein "defendant") appeals as of right the circuit court's entry of judgment in favor of plaintiffs after a jury verdict awarding plaintiff $499,610.90 following the death of her husband in an industrial accident. We affirm.

I

Plaintiff's decedent husband, forty-one-year-old David Bouverette, was employed as a journeyman electrician by Sebewaing Industries, Inc., an automotive parts stamping company. On June 7, 1995, Bouverette died of an apparent electrocution while working on a control panel manufactured by defendant Medar, Inc., which contained circuit breakers manufactured by defendant. The panel controlled an industrial welding machine, designed, built, and sold by defendant Hy Tek Systems, Inc.

On March 27, 1996, plaintiff filed the instant wrongful death and products liability action against defendants Westinghouse and Hy Tek, alleging, against Westinghouse, negligent design, manufacture, and failure to warn and breach of implied warranty of fitness (defective design and manufacture and inadequate warnings).² Hy Tek subsequently moved to file a third-party complaint, under MCR 2.204, against defendant Medar, Inc., seller of the electrical control panel to Hy Tek, following which plaintiff filed an amended complaint, alleging negligence and breach of implied warranty against Medar.

Before trial, plaintiff settled with Hy Tek for $75,000 and with Medar for $35,000. The jury returned a verdict for plaintiff on the claims of breach of implied warranty and breach of express warranty. However, the jury found in favor of defendant on the claim of negligence. The jury awarded damages of $111,817 for economic losses and $750,000 for noneconomic losses. The jury found Bouverette thirty percent at fault and defendant seventy percent at fault, resulting in a final judgment of $499,610.90. The court denied defendant's motion for judgment notwithstanding the verdict (JNOV) or a new trial.

II

Defendant argues that plaintiff failed to establish a prima facie case of breach of implied warranty in the absence of risk-utility evidence, required for claims under either defective design or failure to warn,³ and, thus, that the trial court erred in denying defendant's motions for a directed verdict and JNOV. We disagree.

We review de novo the grant or denial of a directed verdict and a trial court's decision on a motion for JNOV. Forge v. Smith, 458 Mich. 198, 204, 580 N.W.2d 876 (1998); Meagher v. Wayne State Univ., 222 Mich.App. 700, 708, 565 N.W.2d 401 (1997).

Our courts have stated that negligence and breach of implied warranty may, in certain factual contexts, involve the same elements and proofs, both in a failure to warn claim, Smith v. E.R. Squibb & Sons, Inc., 405 Mich. 79, 88, 273 N.W.2d 476 (1979), and in a design defect claim, Prentis v. Yale Mfg. Co., 421 Mich. 670, 692, 365 N.W.2d 176 (1984). Nonetheless, the theories of negligence and implied warranty remain separate causes of action with different elements. Lagalo v. Allied Corp., 457 Mich. 278, 287, n. 11, 577 N.W.2d 462 (1998).

Although in a design defect case the trier of fact must apply "a risk-utility balancing test that considers alternative safer designs and the accompanying risk pared [sic] against the risk and utility of the design chosen," Gregory v. Cincinnati, Inc., 450 Mich. 1, 13, 538 N.W.2d 325 (1995), no such specific analysis is required in a failure to warn case. In discussing the importance of risk-utility balancing with regard to the proper scope of warnings, this Court in Dunn v. Lederle Laboratories, 121 Mich.App. 73, 80, 328 N.W.2d 576 (1982), expressly stated that the adequacy of a warning is an issue of reasonableness, and reasonableness is a question of fact. Thus, plaintiff did not fail to establish a prima facie case of breach of implied warranty in failing to satisfy a risk-utility analysis.

When a products liability action is premised on a breach of implied warranty of fitness, the plaintiff must prove that a defect existed at the time the product left the defendant's control, which is normally framed in terms of whether the product was "`reasonably fit for its intended, anticipated or reasonably foreseeable use.'" Gregory, supra at 34, 538 N.W.2d 325, quoting Elsasser v. American Motors Corp., 81 Mich.App. 379, 384, 265 N.W.2d 339 (1978); see also Lagalo, supra at 286, n. 9, 577 N.W.2d 462.

There was ample evidence to establish a prima facie claim of breach of implied warranty premised on failure to warn. Plaintiff presented evidence that the breaker did not make or break simultaneously as intended when used with an external linkage handle. Further, defendant's instruction and installation manual did not provide a warning in this regard. There was testimony that the manual contained other warnings to electricians and should have warned of the external linkage problem or that the breaker itself should have had a warning label to that effect. Electricians relied on the breaker to shut off power by breaking simultaneously when the handle was in the off position, as did Medar in installing the indicator lights. This evidence presents a question of fact whether defendant's failure to warn of this condition was reasonable given the risk of electrocution. See Hatfield v. St. Mary's Medical Center, 211 Mich.App. 321, 325, 535 N.W.2d 272 (1995).

Further, given the evidence, the jury could have found a breach of implied warranty because it was foreseeable that the breaker would be used with the linkage and yet, when one leg of the breaker fused, the breaker handle could be placed in the off position even though electricity was still flowing. The jury could have found that the breaker failed to break simultaneously, as it was intended to do, when the linkage handle was placed in the off position. Thus, the jury verdict must stand. Severn v. Sperry Corp., 212 Mich.App. 406, 412, 538 N.W.2d 50 (1995).

III

Defendant argues that plaintiff's express warranty claim fails because plaintiff did not establish privity of contract, as required under the Uniform Commercial Code (UCC), M.C.L. § 440.2313 and 440.2318. Plaintiff contends that the UCC is inapplicable in a personal injury action. We agree that the UCC requirements are inapplicable in this case.

Our courts have distinguished between actions in tort, seeking redress for personal injury, and those based in contract, involving a commercial loss. See Neibarger v. Universal Cooperatives, Inc., 439 Mich. 512, 486 N.W.2d 612 (1992); Crews v. General Motors Corp., 400 Mich. 208, 226-228, 253 N.W.2d 617 (1977). Since 1965, our courts have recognized that privity is unnecessary with respect to an injured bystander's right of recourse against a manufacturer on the theory of breach of warranty and negligence. Glittenberg v. Doughboy Recreational Industries (On Rehearing), 441 Mich. 379, 388, n. 8, 491 N.W.2d 208 (1992); Piercefield v. Remington Arms Co., 375 Mich. 85, 98, 133 N.W.2d 129 (1965). Although in 1978 the Legislature codified the law governing products liability actions, M.C.L. § 600. 2945, the distinctions between tort and contract liability remain.

This Court has recognized a products liability claim premised on breach of express warranty where the plaintiff, a quality control inspector who was injured on the job, sued the seller/manufacturer of a polyester strap that broke when the plaintiff was securing a palletized load of parts, on facts analogous to those in this case. Scott v. Illinois Tool Works, Inc., 217 Mich.App. 35, 37, 41-43, 550 N.W.2d 809 (1996). The plaintiff's express warranty claim was based on a price quotation and specification references for the sale of the strap between one of the defendants and the plaintiff's employer. Id. at 42, 550 N.W.2d 809. This Court affirmed the trial court's denial of a directed verdict on the express warranty claim. Id. at 41, 43, 550 N.W.2d 809; see also Reid v. Volkswagen of America, 512 F.2d 1294, 1297 (C.A.6, 1975) (under Michigan law, the privity requirement of the Michigan UCC is inapplicable to a products liability action based on express warranty). Privity of contract was not a prerequisite to plaintiff's express warranty claim.

IV

Defendant argues that the jury's verdict is inconsistent as a matter of law because the jury found no negligence, but did find breach of implied warranty, and an implied warranty cannot be breached absent negligence. We disagree.

"`[I]f there is an interpretation of the evidence that provides a logical explanation for the findings of the jury, the verdict is not inconsistent.'" Lagalo, supra at 286, 577 N.W.2d 462, quoting Granger v. Fruehauf Corp., 429 Mich. 1, 7, 412 N.W.2d 199 (1987). A court must look beyond the legal principles underlying the plaintiff's causes of action and carefully examine how those principles were argued and applied in the context of the case. Lagalo, supra at 284, 577 N.W.2d 462.

In this case, the court's...