Byrnes v. Economic Machinery Co.

• Decision Date: 30 May 1972
• Docket Number: No. 1,Docket No. 11468,1
• Citation: 200 N.W.2d 104,41 Mich.App. 192
• Parties: Myles BYRNES and Mary Margaret Byrnes, his wife, Plaintiffs- Appellants, v. ECONOMIC MACHINERY COMPANY, Division of George J. Meyer Mfg. Co., a foreign corporation, et al., Defendant-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 104

200 N.W.2d 104

41 Mich.App. 192

Myles BYRNES and Mary Margaret Byrnes, his wife, Plaintiffs- Appellants, v. ECONOMIC MACHINERY COMPANY, Division of George J. Meyer Mfg Co., a foreign corporation, et al., Defendant-Appellees.

Docket No. 11468.

Court of Appeals of Michigan, Division No. 1.

May 30, 1972.

Released for Publication Aug. 23, 1972.

Leave to Appeal Denied Aug. 15, 1972.

Donald J. Morbach, Sugar, Schwartz, Silver, Schwartz & Tyler, Detroit, for plaintiffs-appellants.

Albert A. Miller, Garan, Lucow, Miller, Lehman, Seward & Cooper, P.C., Detroit, for defendants-appellees.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

BRONSON, Judge.

Plaintiff appeal from a summary judgment.

Plaintiff Myles Byrnes was employed by Shedd-Bartush Food Company as a mechanic. His job was to keep labeling machines in good operating order. Among these was a 'World Super C. M. Labeler' machine manufactured by defendant Economic Machinery Company. This machine requires regular adjustment and maintenance because of differences in bottles' sizes and shapes, glue adjustments, imperfections in the paper lebels, atmospheric changes, and repair and adjustment of brushes.

On August 19, 1966, plaintiff was adjusting brushes on defendant's machine. This required the removal of a guard over moving parts in the machine and the manual adjustment of the brushes. The adjustment was done on a trial and error basis until the machine put the labels on properly. While plaintiff's right hand was still inside the machine, his supervisor ordered a fellow employee to activate the machine. As a consequence, plaintiff suffered the injuries for which he brought the present suit.

Plaintiffs' claim against defendant manufacturer is based on negligence and warranty theory, faulting the defendant with failure to design proper safety guards and procedures for deactivating the machine while it was being manually adjusted and failure to warn machine users of the dangers attendant upon operating the machine while manual adjustments were being made.

The sole issue on appeal is whether granting summary judgment for defendant was proper. Whether a genuine issue of material fact exists depends on plaintiff's deposition, pleadings, and photographs of the machine submitted to the trial judge. The trial judge is not limited to considering only affidavits. He may consider other evidence in the record before him. Green v. Lindquist Agency, Inc., 2 Mich.App. 488, 140 N.W.2d 575 (1966). Plaintiff admits the machine was started at his supervisor's command but emphasizes the need for constant maintenance, which plaintiff was responsible for; that such maintenance was done while exposed to parts that move; the machine operator's position behind a control panel where it was difficult to see plaintiff readjusting the machine; and defendant's awareness of these facts. These facts, plaintiff contends, create a question of fact as to whether defendant breached a warranty or was negligent in failing to install a safety device to prevent the accident that occurred. Defendant does not dispute these facts but argues that they do not create a genuine issue of fact for a jury.

Defendant contends that a manufacturer has no duty to protect against injuries caused by obvious dangers. Further, a manufacturer is not required to anticipate misuse of his product which results in injury. Defendant relies heavily on Fisher v. Johnson Milk Co., Inc., 383 Mich. 158, 174 N.W.2d 752 (1970), and Brown v. General Motors Corp., 355 F.2d 814 (C.A. 4, 1966).

Fisher v. Johnson Milk Co., Supra, is the latest Michigan authority on manufacturer's liability for defective products. In that case, plaintiff sued the manufacturer of a wire milk carrier. He had slipped on an icy street and dropped the carrier and bottles he was carrying in it. On impact with the street, the bottles broke and plaintiff seriously cut his hand on the broken glass as he tried to break his fall. In affirming a summary judgment for defendant, the Supreme Court said:

'There was no inherent, hidden or concealed defect in the wire carrier. Its manner of construction, how the bottles would rest in it, and what might happen if it were dropped, upright, on a hard surface below, with the possibility that the contained bottles might break, was plain enought to be seen by anyone including a patent attorney as well as a milk dealer. There is no duty to warn or protect against dangers obvious to all. * * *'

The Court then went on to quote extensively from Jamieson v. Woodward & Lothrop, 101 U.S.App.D.C. 32, 247 F.2d 23 (1957), and Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). To fully appreciate the meaning of Fisher, a close reading of both these cases is necessary.

In Jamieson, the plaintiff was injured when a rope on an elastic exerciser made by the defendant slipped and struck plaintiff in the eye, causing a detached retina. The court held that the manufacturer was not liable to plaintiff. Important to this decision was the fact that the rope was part of a relatively simple machine which posed no foreseeably great danger to a user. The United States Court of Appeals for the District of Columbia Circuit said:

'Neither an exact definition of liabilities nor a precise delineation of the boundaries is necessary in the present case. It seems clear under all or any of the cases or text authorities that, where a manufactured article is a simple thing of universally known characteristics, not a device with parts or mechanism, the only danger being not latent but obvious to any possible user, if the article does not break or go awry, but injury occurs through a mishap in normal use, the article reacting in its normal and foreseeable manner, the manufacturer is not liable for negligence. If a man drops an iron dumbbell on his foot the manufacturer is not liable.

'Surely a manufacturer is not negligent if he fails to utter a warning against a general possibility of danger, such as that if a rope slips some injury may result. And surely a manufacturer, to be protected from liability for negligence, need not enumerate the possible injuries which might befall one hit by the rope. We have in the case at bar a detached retina, but we might have had any one of an infinite number of injuries to eye, mouth, ear, nose, Etc. We do not agree with, and find no authority to support, a holding either that a manufacturer must utter a general warning of danger from mishap with an article such as this rope or that he must catalog injuries possible upon such a mishap.' 101 U.S.App.D.C. 32, 37, 39, 247 F.2d 23, 28, 30.

In Campo v. Scofield, Supra, plaintiff was injured while operating an onion topping machine manufactured by defendant. His hand slipped into the machine's steel rollers, resulting in serious injury. The New York Court of Appeals held that the manufacturer had no duty to protect a user against obvious dangers by equipping the machine with safety guards.

Defendant in the instant case relies on the following language in Campo:

'If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law's demands. We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof of foolproof. Just as the manufacturer is under no obligation, in order to guard against injury resulting from deterioration, to furnish a machine that will not wear out, see Auld v. Sears, Roebuck & Co., 288 N.Y. 515, 41 N.E.2d 927 (1942), affirming 261 App.Div. 918, 25 N.Y.S.2d 491 (1941), so he is under no duty to guard against injury from a patent peril or from a source manifestly dangerous. To illustrate, the manufacturer who makes, properly and free of defects, an axe or a buzz saw or an airplane with an exposed propeller, is not to be held liable if one using the axe or the buzz saw is cut by it, or if some one working around the airplane comes in contact with the propeller. In such cases, the manufacturer has the right to expect that such persons will do everything necessary to avoid such contact, for the very nature of the article gives notice and warning of the consequences to be expected, of the injuries to be suffered. In other words, the manufacturer is under no duty to render a machine or other article 'more' safe--as long as the danger to be avoided is obvious and patent to all.' 301 N.Y. 468, 472; 95 N.E.2d 802, 804.

Jamieson and Campo hold that a manufacturer is not under a duty to protect against a General possibility of danger inherent in a product where the danger is obvious to all who Use the product as it was intended to be used. Fisher, supra, fits well into this rationale as it involved a relatively simple product which presented no danger to users reasonably foreseeable by the manufacturer. In this sense it is indistinguishable from Jamieson, supra. Further, Fisher had an element of inadvertence by plaintiff which makes it somewhat similar to Campo, supra.

The instant case presents a factually distinguishable situation. Plaintiff was working with a complicated piece of machinery while its moving parts were exposed and while the machine was controlled by another. This work was a necessary part of plaintiff's job. It was done constantly to keep the machine in good order and to enable it to perform different functions. Defendant was aware of the specific uses to which its machine would be put and of the need for constant maintenance.

The defendant manufacturer also relies on Brown v. General Motors Corp., 355 F.2d 814 (C.A.4, 1966), which the trial judge found to be indistinguishable from the instant case. There the plaintiff was injured while greasing the universal joints of a bulldozer manufactured by defendant. A fellow employee, without checking to...