Downie v. Kent Products

Decision Date10 May 1983
Docket NumberDocket No. 52584
Citation122 Mich.App. 722,333 N.W.2d 528
PartiesMarjorie Phyllis DOWNIE, Plaintiff-Appellee, v. KENT PRODUCTS and the Home Indemnity Company, Defendant-Appellant, and E.W. Bliss Company; Gulf and Western Industry, Inc.; Gulf and Western Industrial Products Company, Defendants-Appellants, and General Motors Corporation, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

McCroskey, Libner, VanLeuven, Feldman, Cochrane & Brock by J. Walter Brock, Muskegon, for plaintiff-appellee.

Rhodes, McKee & Boer by Michael J. Roberts, Grand Rapids, for Kent Products and The Home Indem. Co.

Cholette, Perkins & Buchanan by Kenneth L. Block, Grand Rapids, for E.W. Bliss Co.

Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for General Motors Corp.

Before MacKENZIE, P.J., and HOLBROOK and DeWITT, * JJ.

DeWITT, Judge.

On December 10, 1975, plaintiff suffered traumatic amputation of a portion of her right hand when it was crushed in a press which she was operating. The press had been manufactured by defendant E.W. Bliss Company. Defendant Bliss sold the press to plaintiff's employer, Kent Products, on June 16, 1961. At the time of her injury, plaintiff was using the press in conjunction with a die supplied by defendant General Motors Corporation. Plaintiff's employment required her to hand-load and hand-remove items which the press formed by a single stroke operating cycle activated by dual palm switches. Plaintiff was in the act of removing a finished piece from the press when it inexplicably restruck and crushed her hand.

Defendants Kent Products and The Home Indemnity Company paid workers' compensation benefits to the plaintiff. The instant action was filed against defendants Bliss and General Motors. Plaintiff's complaint alleges separate counts of negligence, breach of warranty, strict liability and fraud. Following a three-year discovery period, General Motors moved for and was granted summary judgment dismissing it from the suit.

At trial, upon the close of plaintiff's proofs, defendant Bliss moved for a directed verdict on all plaintiff's theories of recovery. The judge granted the motion in part, dismissing the strict liability and fraud counts, as well as part of plaintiff's cause of action for breach of warranty. The trial judge denied Bliss's motion for a directed verdict on plaintiff's theory of negligence arising from a failure by Bliss to warn of potential dangers associated with the operation of the press:

"The Court denies the motion. I could give a long dissertation as to why, but it would have nothing to do with being truthful with either party as far as the legal burden. It has to do with the current status of our appellate process and the appellate courts deciding cases in toto with not all of the whole portion of the case. And so, as a result, I'll be on the cautious side. I totally disagree with the record, with the defendants' contention that there is no evidence on this record which a reasonable jury could find that there was a duty to warn. But I would deny the motion. If it gets to the Court of Appeals, they can totally dispose of this case rather than remanding it to a trial court to waste double or triple time.

"With reference to the engineering design, there is evidence to establish a fact question. With the warning issue, there isn't. But I'll let it go to the jury."

When the case was submitted to them, the jury was provided with a special verdict form. This form permitted them to apportion fault among plaintiff, Bliss and Kent Products, even though Kent Products was not a party to this action. The jury returned a verdict finding that plaintiff's injury was caused by the negligence of defendants Bliss and Kent Products, and apportioned 55 percent of the negligence to Bliss and 45 percent to Kent Products. The total amount of damages was assessed by the jury at $121,000.

Following the return of the jury's verdict, plaintiff filed an amended complaint, adding Kent Products and The Home Indemnity Company as parties and seeking a declaratory judgment limiting the rights of these defendants to reimbursement of workers' compensation benefits. Pursuant to stipulation of the parties present at the trial, the trial judge permitted amendment of plaintiff's complaint.

Both Kent Products and Home Indemnity objected to the amendment of plaintiff's complaint. On plaintiff's motion for entry of judgment, the trial judge rejected the arguments of Kent Products and Home Indemnity. He ordered that their right to reimbursement for workers' compensation benefits paid to plaintiff be limited to amounts paid in excess of the sum of $54,450, the amount of damages attributable to Kent Products based on the jury's apportionment of negligence. Kent Products and The Home Indemnity Company now appeal the lower court order permitting amendment of plaintiff's complaint. Defendant Bliss Company appeals the trial court's denial of its motion for a directed verdict as to plaintiff's negligence count and the claimed error in the admission of evidence.

The argument of defendant Bliss raises two distinct issues. The question of whether there was a legal duty to warn under the facts of this case must be distinguished from the question of whether plaintiff presented sufficient evidence at trial on this theory to withstand a motion for directed verdict. Bliss argues that its motion for directed verdict should have been granted because as a matter of law there is no duty to warn or protect against dangers that are obvious or open. See Durkee v. Cooper of Canada, Ltd., 99 Mich.App. 693, 298 N.W.2d 620 (1980).

Bliss relies principally upon the decision of the Supreme Court in Fisher v. Johnson Milk Co., Inc., 383 Mich. 158, 174 N.W.2d 752 (1970). In that case, the defendant had sold to plaintiff a wire carrier constructed to carry four half-gallon bottles of milk. Plaintiff was injured while transporting milk in the carrier when he slipped on a patch of ice, striking the carrier on the sidewalk and breaking the bottles it held. In affirming the lower court's grant of summary judgment for the defendant, the Supreme Court noted that there was no inherent, hidden, or concealed defect in the wire carrier. The possibility that the bottles it contained might break if the carrier were dropped on a hard surface could plainly be seen by anyone.

In the instant case, the power press operated by the plaintiff had obvious capacity to cause serious physical injury. However, the precise mechanical failure of the press that caused plaintiff's injuries was not readily apparent. Evidence introduced at trial indicates that plaintiff's injuries resulted from a mechanical failure within the clutch latch assembly of the press. This defect was not the type of obvious hazard considered by the Fisher Court. Indeed, the Fisher opinion, itself, distinguishes that case from the present one: "This is not the case of a piece of machinery, looking alright on the surface but containing a defect not observed or observable by plaintiff, which operated in such fashion, unexpectedly, as to be dangerous and to injure plaintiff." Fisher, supra p. 162, 174 N.W.2d 752.

Nor was the duty to warn excused in this case because plaintiff was an experienced press operator. In Graham v. Ryerson, 96 Mich.App. 480, 292 N.W.2d 704 (1980), this Court discredited the argument that there is no duty to warn "experts".

As a general rule, the question of whether a duty exists is one that must be resolved by a trial judge as a matter of law. However, when the facts at trial are in dispute and give rise to a reasonable difference of opinion as to the foreseeability of a particular risk and the reasonableness of a defendant's conduct in that regard, the jury should resolve the issue after proper instruction. Robertson v. Swindell-Dressler Co., 82 Mich.App. 382, 267 N.W.2d 131 (1978). Our inquiry then turns to the issue of whether plaintiff presented sufficient evidence at trial to withstand defendant Bliss's motion for a directed verdict.

A directed verdict is appropriate whenever a plaintiff fails to establish a prima facie case. In an action premised upon the alleged negligent failure to warn of a known danger, the plaintiff must supply sufficient evidence on each of the following four elements of that theory: that the defendant owed a duty to plaintiff; that the defendant violated that duty; that the defendant's breach of the duty was a proximate cause of the injury suffered by the plaintiff; and, that the plaintiff suffered damages. Falkner v. John E. Fetzer, Inc., 113 Mich.App. 500, 317 N.W.2d 337 (1982); Beals v. Walker, 98 Mich.App. 214, 296 N.W.2d 828 (1980). The fact that plaintiff suffered damages was not contested in this case.

With regard to the question of whether sufficient evidence was presented to make out a prima facie case that defendant owed a duty to plaintiff, the record indicates that in establishing this element plaintiff relied principally upon the testimony of a project engineer for defendant Bliss and upon the testimony of her expert. The testimony of Bliss's project engineer tended to establish that the presses sold by Bliss were often hand-loaded in the shops that used them. He acknowledged that the hand-loading of presses, without point-of-operation safety devices, was unsafe and that amputations were a significant problem.

The thrust of the testimony of plaintiff's expert, a professor of mechanical engineering at the University of Michigan, was that an adequate warning of the dangers associated with operating the press was not given by Bliss. Bliss argues on appeal that plaintiff's expert was, impermissibly, allowed to reach legal conclusions in his testimony. We observe, however, that this objection was not made at trial. Rather, at trial, counsel for Bliss objected to the testimony of this...

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  • Downie v. Kent Products, Inc.
    • United States
    • Supreme Court of Michigan
    • January 14, 1985
    ...to presses manufacturered by Bliss after 1965 was so highly prejudicial as to deny Bliss a fair trial." 9 Downie v. Kent Products, 122 Mich.App. 722, 737, 333 N.W.2d 528 (1983). We do not agree. Generally, evidence of repairs, changes in conditions, or precautions taken after an incident is......
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