Crowther v. Ross Chemical & Mfg. Co.

• Decision Date: 28 August 1972
• Docket Number: Docket No. 10899,No. 1,1
• Citation: 42 Mich.App. 426,202 N.W.2d 577
• Parties: Joseph H. CROWTHER, as Administrator of the Estate of Deborah Crowther and Kimberly Crowther, Deceased, Plaintiff-Appellee, v. ROSS CHEMICAL AND MANUFACTURING CO., a Michigan corporation, Defendant- Appellant, and Testor Corp., a foreign corporation, et al., Defendants
• Court: Court of Appeal of Michigan — District of US

Page 577

202 N.W.2d 577

42 Mich.App. 426

Joseph H. CROWTHER, as Administrator of the Estate of Deborah Crowther and Kimberly Crowther, Deceased, Plaintiff-Appellee, v. ROSS CHEMICAL AND MANUFACTURING CO., a Michigan corporation, Defendant- Appellant, and Testor Corp., a foreign corporation, et al., Defendants.

Docket No. 10899.

Court of Appeals of Michigan, Division No. 1.

Aug. 28, 1972.

Released for Publication Dec. 8, 1972.

Jeannette A. Paskin, Detroit, for defendant-appellant.

Joseph B. Sullivan, Detroit, for plaintiff-appellee.

Jack R. Sullivan, Detroit, for Testor.

Thomas E. Owen, and Lawrence G. Campbell, Detroit, for Buckeye.

Richard A. Harvey, Detroit, for Coolsalt.

Before J. H. GILLIS, P.J., and McGREGOR and BORRADAILE, ^* JJ.

J. H. GILLIS, Presiding Judge.

Defendant Ross Chemical and Manufacturing Co. was granted leave to appeal from the trial court's denial of its motion for summary judgment for failure to state a claim upon which relief can be granted. GCR 1963, 117.2(1). The case comes to this Court on the following agreed statement of facts:

'1. On April 24, 1970 plaintiff as duly appointed administrator of the estate of his two daughters brought a cause of action against defendant Ross Chemical and Manufacturing Company and others alleging the following against defendant Ross Chemical and Manufacturing Company:

'a. That Ross Chemical and Manufacturing Company engaged in the business of manufacturing for sale a certain chemical compound, Ross Plastic Model Cement, commonly known as airplane glue;

'b. That on or about April 28, 1967 the plaintiff's decedents, Deborah Louise Crowther, eight (8) years of age and her sister Kimberly Crowther, six (6) years of age were returning to their home on North Wayne Road in Westland, County of Wayne, State of Michigan;

'c. That while doing so, plaintiff's decedents, without any act of negligence on the part of the plaintiff or his decedents, were set upon, assaulted and killed by the defendant, John A. Turner, who was acting under the effects of a certain practice known as 'glue sniffing.' Further, that defendant, John A. Turner, had been sniffing products known as Ross Plastic Model Cement and Testor's Cement for Plastic Models.

'd. That defendant Ross Chemical and Manufacturing Company knew or should have known, of the dangerous qualities of negligently manufacturing and making available for purchase such glue on the open market and failed to properly warn of its dangerous qualities.

'e. That defendant, Ross, negligently manufactured and made available for purchase its product, when it knew, or should have known, that it might be used in the practice commonly called glue sniffing, and such practice results in hallucination, depression, loss of self-control and insanity.

'f. That the negligence of the defendant, Ross, consisted of manufacturing for public use a product which they knew, or should have known, had dangerous results when used in glue sniffing. That they knew, or should have known, that their product was commonly used for such purpose and that it was making available an attractive nuisance to certain children.

'g. That it was the duty of the defendant, Ross, under the circumstances then and there existing, to manufacture its product in such a fashion, as to be safely placed in the hands of consumers, many of whom the defendant, Ross, knew, or should have known, were minors who were known to use the product for glue sniffing.

'h. That the proximate cause of the injuries complained of was the failure of the defendant Ross, to manufacture and market a product safe for use in the hands of the public, and that the injury done the plaintiff's decedents was a direct result of such negligence of this defendant and violative of the implied and express warranties of fitness.

'2. On the basis of the allegations as set forth above, defendant Ross Chemical and Manufacturing Company moved for summary judgment in the trial court.

'3. The court denied defendant's motion for summary judgment.

'4. The defendant Ross Chemical and Manufacturing Company is appealing from the denial of the trial court for summary judgment.'

Before making any disposition of this case, it is necessary to focus our attention on the nature of the particular motion here involved. A motion under GCR 1963, 117.2(1) is the modern equivalent of a demurrer under common-law pleading or a motion to dismiss 'for failure to state a cause of action' under code pleading systems. It tests the Legal sufficiency of a plaintiff's claim, and is thus distinguishable from a motion under GCR 1963, 117.2(3), which is designed to test whether there is any Factual support for a claim or a defense. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), 1969 Supp., p. 50. Rule 117.2(1), like most of our court rules, is derived from the Federal Rules of Civil Procedure--in this case, Rule 12(b)(6). In an extended discussion of Rule 12(b)(6) in 5 Wright and Miller, Federal Practice and Procedure, §§ 1355--1358, pp. 587--626, the limited role of this motion in the disposition of cases is emphasized. Under Federal practice, motions to dismiss for failure to state a claim are viewed with disfavor and rarely granted. 5 Wright and Miller, Supra, § 1357, p. 598. This is in part due to the fact that in considering such motions, the factual allegations of the plaintiff are accepted as true along with any conclusions that can reasonably be drawn therefrom. 5 Wright and Miller, Supra, § 1357, p. 597. However, this attitude also reflects the policy under modern rules of procedure to dispose of cases according to their merits, rather than by applying technical rules formalistically to bar meritorious claims.

'The court should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or extreme, since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader's suppositions.' 5 Wright and Miller, Supra, § 1357, p. 603.

'It is perhaps ironic that the more extreme or even far-fetched is the asserted theory of liability, the more important it is that the conceptual legal theories be explored and assayed in the light of actual facts, not a pleader's supposition. If for no other reason, this affords some protection against the dubious extension of tort principles into new and unheard of fields resulting from a court opinion elucidating legal responsibilities as to facts which may never be.' Shull v. Pilot Life Insurance Co., 313 F.2d 445, 447 (C.A.5, 1963).

Apparently it is felt that where a plaintiff's legal theory seems questionable, the preferable approach under Federal practice is to proceed by way of Rule 56, Summary Judgment. See Shull v. Pilot Life Insurance Co., Supra; Barber v. Motor Vessel 'Blue Cat,' 372 F.2d 626 (C.A.5, 1967). This allows the parties to develop the case beyond the bare bones of the pleadings via depositions, affidavits, and documentary evidence. Under our practice this would involve a motion under GCR 1963, 117.2(3), with all of the methods provided in GCR 1963, 117.3 for the development of the factual context of plaintiff's claim. Where the material facts are not controverted, this enables the court to view the factual...