Casey v. Gifford Wood Co., Docket No. 19365

• Decision Date: 28 May 1975
• Docket Number: Docket No. 19365,No. 3,3
• Parties: Terence CASEY, Plaintiff-Appellant, v. GIFFORD WOOD COMPANY, a Foreign Corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 360

232 N.W.2d 360

61 Mich.App. 208

Terence CASEY, Plaintiff-Appellant, v. GIFFORD WOOD COMPANY, a Foreign Corporation, Defendant-Appellee.

Docket No. 19365.

Court of Appeals of Michigan, Division No. 3.

May 28, 1975.

Released for Publication Sept. 9, 1975.

Van Benschoten & Van Benschoten, P.C., by Duane S. Van Benschoten, Saginaw, for plaintiff-appellant.

William F. Dillon, Birch Run, for defendant-appellee.

Before ALLEN, P.J., and T. M. BURNS and MAHER, JJ.

ALLEN, Presiding Judge.

This is a products liability case brought against the manufacturer of an ice-crushing machine for injuries sustained when plaintiff's left hand was caught in the machine's moving parts. Plaintiff sued, claiming that when manufactured and sold the machine was not reasonably fit for its intended use because it was not equipped with guards. On December 12, 1973, the jury returned a verdict of no cause of action. Plaintiff appeals.

Plaintiff, then age 17, was hired to operate an ice-seizing machine in Grand Rapids, Michigan. In this job, plaintiff, using ice tongs, would slide 300-to-400-pound chunks of ice along the floor to a mechanical lift, push a button activating a lift which would raise the ice some four or five feet in the air, depositing it on a horizontal slide which sloped gently downward from left to right. At the slide's right end was an open hole somewhat larger than the ice chunk. Gravity would cause the ice block to slide into the open hole which fed directly into a revolving drum with spikes which would seize and crush the ice. A separate button, located some 15 feet from the button which operated the lift, activated the revolving drum. The lift, the slide and the revolving drum with its rotating parts were all manufactured by defendant. Approximately two weeks after plaintiff was employed, a block of ice slid down the gravity slide but would not pass through the open hole. The right end of the ice block was irregular in shape and touched the revolving spikes in the drum, which grooved the block but did not sufficiently catch or grab it to cause it to enter the drum. In an attempt to force the ice chunk into the drum, plaintiff did as he testified at trial:

'Okay, I had my ice tongs open and in a manner something like this, and I would push on that, push on the ice to jiggle it a little bit and start the ice feeding into the machine the way that I had been shown how to do it. And on this particular block of ice, I poked on what was the exposed piece of ice and that was the broken part, just that broken part of the block of ice, and as I pushed on that block, the tongs slipped up, went into the machine, caught under one of the spikes in one end, and hooked onto my glove, pulling my hand in after it.'

Preparatory to taking this action, plaintiff did not push the button which would stop the rotating drums.

Testifying by deposition, defendant's expert witness described the equipment as relatively simple and completely safe when used properly. In his expert opinion, guards over the drum entrance were not necessary. He knew of no accident in his company's history with this type of machine. The equipment had properly performed the function for which it was manufactured from its sale to defendant in the spring of 1947 until the date of injury. Defendant's theory of the case was that plaintiff knew of the danger of getting his hands close to the revolving drum and that a proximate cause of the accident was plaintiff's negligence in sticking ice tongs into the mouth of the rotating drum. Plaintiff's expert witness testified that the machinery was a complex tool, that it was unsafe when manufactured because of the failure to include guards over the drum opening, and that such guards could have been supplied at about $2.50 cost. In instructing the jury on the meaning of implied warranty the trial court gave most of the instruction thereon submitted by plaintiff. In addition, the court included an instruction on implied warranty taken from Fisher v. Johnson Milk Co., 383 Mich. 158, 174 N.W.2d 752 (1970), and proposed by defendant. ¹ The court rejected plaintiff's instruction on obvious danger--an instruction patterned after Byrnes v. Ecnomic Machinery Co., 41 Mich.App. 192, 200 N.W.2d 104 (1972). Objections to the charge were promptly and properly taken. ² On appeal to this Court, plaintiff argues that it was error to give the instruction cited in footnote 1.

The jury instruction to which plaintiff took exception, though appearing in Fisher, supra, is actually language taken from the landmark case, Campo v. Scofield, 30 N.Y. 468, 95 N.E.2d 802 (1950). Interestingly, that case did not involve a simple tool product such as the wire milk-bottle carrier in Fisher, but involved a large farm machine, an onion topper attached to a tractor which supplied power for its operation. Set in an iron frame with wooden sides were four hard steel rollers about four feet long whose revolving and grinding accomplished the cutting. Plaintiff's hands became caught in the machine while he was dumping a crate of onions into the machine. Plaintiff claimed products liability because the manufacturer failed to supply any guard which would have prevented the user from coming into contact with the rollers. A similarity to the case before us is obvious. The Campo doctrine has been widely followed, with most courts finding As a matter of law that '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'. ³ Campo v. Scofield, supra, at 472, 95 N.E.2d at 804. This doctrine has been widely criticized and, in recent years, has been significantly modified:

'Despite the criticism by Harper and James that the Campo doctrine is 'a vestigial carryover from pre-MacPherson (MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916)) days when deceit was needed for recovery,' there was minimal judicial reaction against it for 15 years. During the late 1960's, however, a progressive trend emerged. Increasingly, negligent design came to be viewed as a jury question even where the danger was obvious.

'The trend away from Campo is also evident in Byrnes v. Economic Machinery Co.

'The Byrnes court was confronted with Fisher v. Johnson Milk Co., a case that recently had been decided by the Michigan Supreme Court. Fisher held, as a matter of law, that a wire milk-bottle carrier was not negligently designed, even though it was without a false bottom to prevent breakage. The holding was premised on the fact that the danger in the carrier was obvious. Fisher seemed to adopt Campo without qualification, * * *. Nevertheless, the Byrnes court succeeded in distinguishing the facts before it from the other three cases. It did so by cutting through the rhetoric of the 'latent-defect' rule * * *.' Marschall, An Obvious Wrong Does not Make a Right: Manufacturers' Liability For Patently Dangerous Products, 48 N.Y.U.L.Rev. 1065, 1081--1082 (1973).

In Byrnes, supra, plaintiff was making adjustments on a labeling machine containing movable parts. Adjustment was made on a trial and error basis until the machine put the labels on properly. While plaintiff's hand was in the machine, a fellow employee activated the equipment. Defendant, relying on the Campo rule as stated in Fisher, contended that the danger was obvious and that a manufacturer had no duty to protect against injuries obvious and patent to all. This Court reversed the trial court, which had granted summary judgment for defendant. In so doing, this Court made two modifications in the Campo doctrine. First, the Court found that the latent-patent distinction was more properly an issue of whether the risk was unreasonable and foreseeable:

'In reaching their decisions, the courts made much of the need for a latent defect or danger to be present before a duty can be imposed on a manufacturer. In reality, these requirements bear on the unreasonableness of the risk to which one is exposed. Noel, Manufacturer's Negligence of Design or Directions for Use of a Product, 71 Yale L.J. 816, 838 (1962); Pike v. Frank G. Hough Co., supra (2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (1970)). If a risk is unreasonable and foreseeable, a duty on the manufacturer's part may arise. In Fisher v. Johnson Milk Co., 383 Mich. 158, 174 N.W.2d 752 (1970), our Supreme Court concluded that the plaintiff was not exposed to a foreseeable unreasonable risk. Therefore, the manufacturer was not subject to liability. Further, the plaintiff in Fisher could have avoided the injury by proceeding with caution.' Byrnes v. Economic Machinery Co., supra, 41 Mich.App. 192, 201, 200 N.W.2d 104, 108.

Second, the Court held that the issue of whether the risk was unreasonable and foreseeable was one which properly should go to the jury. Byrnes, supra, 41 Mich.App. 192, 202, 200 N.W.2d 104.

Coger v. Mackinaw Products Co., 48 Mich.App. 113, 210 N.W.2d 124 (1973), presented a situation similar to Byrnes, except that the Coger case went to the jury, which found for plaintiff. Plaintiff's hand was injured when, while working on a fairly complicated log-splitting device, a fellow employee activated the splitter while plaintiff's hand was between the log and the wedge. Plaintiff admitted he was aware of the obvious danger but produced an expert witness who claimed the accident would not have occurred if the manufacturer had provided safety devices. Relying upon Fisher, supra, (which as we have noted earlier relied upon Campo) defendant claimed error because the danger was obvious and patent. Our Court affirmed, distinguishing Fisher as a case where the product was 'akin to a simple tool whose character was so uncomplicated and obvious it precluded the need for warnings or safety devices', and adopted the Byrnes rationale that the proper test of liability was whether the risk was unreasonable or foreseeable. Additionally, the Court stated:

'Plaintiff's...