Calladine v. Hyster Co.

• Decision Date: 02 February 1987
• Docket Number: Docket No. 83785
• Citation: 399 N.W.2d 404,155 Mich.App. 175
• Parties: Panzy CALLADINE, individually and as guardian of William Calladine, Plaintiff- Appellee, v. HYSTER COMPANY, a Nevada corporation, Hyster Credit Corporation, a Delaware corporation, and Modern Handling Equipment Company, a Michigan corporation, jointly and severally, Defendants-Third-Party Plaintiffs-Appellees, v. DANA CORPORATION, Third-Party Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 404

399 N.W.2d 404

155 Mich.App. 175

Panzy CALLADINE, individually and as guardian of William

Calladine, Plaintiff- Appellee, v. HYSTER COMPANY, a Nevada corporation, Hyster Credit

Corporation, a Delaware corporation, and Modern Handling

Equipment Company, a Michigan corporation, jointly and severally, Defendants-Third-Party Plaintiffs-Appellees, v. DANA CORPORATION, Third-Party Defendant-Appellant.

Docket No. 83785.

Court of Appeals of Michigan.

Submitted March 4, 1986.

Decided Aug. 7, 1986.

Leave to Appeal Denied Dec. 3, 1986.

Released for Publication Feb. 2, 1987.

Leave to Appeal Denied (Dana) Feb. 23, 1987.

Sachs, Nunn, Kate, Kadushin, O'Hare, Helveston & Waldman, P.C. (by Barry P. Waldman), Detroit, for plaintiff-appellee.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Roger F. Wardle, Edward D. Plato, and Lanie F. Anderson), Farmington Hills, for third-party defendant-appellant Dana Corp.

Harvey, Kruse, Westen & Milan, P.C. (by James Sukkar), Detroit, for defendants-third-party plaintiffs-appellees Hyster Co. and Hyster Credit Corp.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by James D. Zazakis), Detroit, for defendant-third-party plaintiff-appellee Modern Handling Equipment Co.

Before GILLIS, P.J., and GRIBBS and LAMBROS, ^* JJ.

PER CURIAM.

Plaintiff, Panzy Calladine, individually and as guardian of William Calladine, brought suit in the Wayne Circuit Court against defendants Hyster Company, Hyster Credit Corporation, and Modern Handling Equipment Company (Modern Handling). Plaintiff alleged that Modern Handling, as owner of a forklift, was responsible for all injuries resulting from the negligent operation of the forklift and that defendants were liable to them based on defective product design and manufacture. Defendants filed a third-party complaint against Dana Corporation (Dana) alleging that Dana had agreed to indemnify and hold them harmless from any and all liability resulting from the forklift. Dana moved for summary judgment, and on March 8, 1985, the trial court issued an order granting in part and denying in part the motion for summary judgment. The trial court found as a matter of law that the forklift was a motor vehicle for purposes of Michigan's owner's liability statute, M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101. Apparently, it also found that Dana had agreed to indemnify defendants for products liability claims. Third-party plaintiffs' claims of common-law indemnity were dismissed with prejudice by stipulation of the parties. Dana appeals by leave granted.

On May 30, 1978, William Calladine, an employee of Dana, was struck and seriously injured by a Hyster Model S80B forklift (or lift truck) driven by a coemployee. The accident occurred inside the press room of Dana's facility in Ecorse.

The forklift was designed and manufactured by defendant Hyster Company (Hyster) and was leased or sold to Dana by a Hyster subsidiary on or about September 29, 1976. Model S80B forklifts were eight thousand pound capacity forklifts equipped with low-profile, cushion tires. The forklifts did not have headlights, tail lights, turn signals, seat belts, windshields, back- -up lights, hazard warning flashers, or rearview mirrors as standard equipment. The forklift involved in this case had been operated on private roads outside of Dana's plant, but it had not been operated on roads open to the general public. The owner's manual for the S80B forklifts indicates that, "NOTE: Hyster lift trucks are not intended for operation on public roads."

On appeal, Dana raises two issues. First, it contends that the trial court erred as a matter of law when it determined that the forklift which struck William Calladine was a "motor vehicle" for purposes of the owner's liability statute. We agree.

M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101, the owner's liability statute, reads, in pertinent part:

"The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law requires." (Emphasis added.)

That provision is part of the civil liability act, M.C.L. Sec. 257.401 et seq.; M.S.A. Sec. 9.2101 et seq., which is Chapter IV of the Michigan Vehicle Code, M.C.L. Sec. 257.1 et seq.; M.S.A. Sec. 9.1801 et seq.

In Frazier v. Rumisek, 358 Mich. 455, 100 N.W.2d 442 (1960), the Supreme Court noted:

"The owner liability statute before us was passed in response to an overwhelming public need. Common-law liability, circumscribed as it was by the doctrine of bailment, respondeat superior, agency, and the like, was unable to cope with the rising tide of injuries resulting from the use of the new mechanism, the automobile. Principal among the legislative answers were the owner liability laws. Their purpose, as Mr. Justice Edwards held in Moore v Palmer, 350 Mich 363 [86 NW2d 585 (1957) ], was to extend and complement the common law. The legislative theory was simple to state and broadly applicable: An owner was liable for the negligent operation of the machine owned by him when he had consented to its use." 358 Mich. at 457, 100 N.W.2d 442.

M.C.L. Sec. 257.33; M.S.A. Sec. 9.1833 of the Michigan Vehicle Code defines motor vehicle as "every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails". M.C.L. Sec. 257.79; M.S.A. Sec. 9.1879 of the code defines vehicle as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices exclusively moved by human power or used exclusively upon stationary rails or tracks" and excepting mobile homes. M.C.L. Sec. 257.20; M.S.A. Sec. 9.1820 defines a highway or street as "the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." In this appeal, we must decide if the forklift involved in the accident with William Calladine was a motor vehicle for purposes of M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101.

Few cases have dealt with the definition of motor vehicle under the owner's liability statute. However, we have often considered the definition of motor vehicle contained in M.C.L. Sec. 500.3101; M.S.A. Sec. 24.13101 of the Insurance Code. See Citizens Ins. Co. of America v. Detloff, 89 Mich.App. 429, 280 N.W.2d 555 (1979), lv. den. 407 Mich. 864 (1979); Ebernickel v. State Farm Mutual Automobile Ins. Co., 141 Mich.App. 729, 367 N.W.2d 444 (1985), lv. den. 422 Mich. 971 (1985); Apperson v. Citizens Mutual Ins. Co., 130 Mich.App. 799, 344 N.W.2d 812 (1983). Those cases are not necessarily dispositive of the issue presented here, however, because that provision states that motor vehicle "means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than two wheels" and excepts motorcycles, mopeds, and certain farm equipment. The provisions construed in this appeal are not identical to those found in the Insurance Code.

In West v. Cyril J. Burke, Inc., 137 Mich.App. 191, 197, 357 N.W.2d 856 (1984), lv. den. 422 Mich. 852 (1985), we held that the owner's liability statute does not apply unless a vehicle is being driven at the time of the injury. However, that decision did not discuss whether or not a mobile crane is a motor vehicle for purposes of the statute. In this case, it appears that the forklift was being driven when Calladine was injured. We also note that Ladner v. Vander Band, 376 Mich. 321, 136 N.W.2d 916 (1965), is inapposite. In that case, the Supreme Court held that the owner's liability statute is not restricted to the operation of motor vehicles on public highways, Ladner, supra, p. 328, 136 N.W.2d 916. That case involved an automobile, however, and the Court did not consider the definition of motor vehicle under the statute. The place where a device is operated may affect the determination of whether or not it is a motor vehicle. See DAIIE v. Spafford, 76 Mich.App. 85, 255 N.W.2d 780 (1977), lv. den. 402 Mich. 825 (1977).

We hold that the forklift which struck plaintiff's ward was not a motor vehicle within the meaning of the owner's liability statute. Where a device is not actually transported or drawn upon a highway and where it cannot lawfully be operated on a highway, it is not a vehicle within the purview of the owner's liability statute. That is the meaning of the "is or may be" language found in M.C.L. Sec. 257.79; M.S.A. Sec. 9.1879. This reading of the statute comports with the legislative design to deal primarily with injuries occasioned by automobiles, as set out in Frazier, supra.

Since the forklift involved in this case could not lawfully be driven upon a highway, and since it was never driven upon a highway, as defined...