George v. Eaton Corp.

• Decision Date: 28 May 1982
• Docket Number: Docket No. 48948
• Citation: 114 Mich.App. 580,319 N.W.2d 366
• Parties: Joseph H. GEORGE and Josephine May George, Plaintiffs-Appellants, v. EATON CORPORATION, a foreign corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 366

319 N.W.2d 366

114 Mich.App. 580

Joseph H. GEORGE and Josephine May George, Plaintiffs-Appellants, v. EATON CORPORATION, a foreign corporation, Defendant-Appellee.

Docket No. 48948.

Court of Appeals of Michigan.

Submitted March 4, 1981.

Decided April 5, 1982.

Released for Publication May 28, 1982.

Jasmer, Lobb & Weiss, P. C., Southfield, for plaintiffs-appellants.

Garan, Lucow, Miller, Seward, Cooper & Becker, Detroit (Gromek, Bendure & Thomas, Detroit, of counsel), for defendant-appellee.

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

HOLBROOK, Presiding Judge.

Plaintiffs, Joseph and Josephine George, brought a products liability suit against Eaton Corporation claiming damages as a result of injuries sustained by Joseph George (hereinafter plaintiff). The jury rendered a verdict in favor of the plaintiffs and also determined that Mr. George was 60 percent negligent in causing the accident. Therefore, the trial court entered an order awarding plaintiffs 40 percent of the judgment. Plaintiffs' motion for a new trial was denied and they now appeal as of right.

Plaintiff was employed as a journeyman hi-lo repairman at the Ford Motor Company. The lift truck that plaintiff was servicing at the time of the accident was designed to pick up and transport coils of steel weighing up to 60,000 pounds. The unit was powered by electric motors which were positioned underneath the fork and carriage assembly. Thus, in order for work to be performed on these motors, it was necessary for the carriage to be raised and held aloft. Plaintiff was injured when the carriage fell onto him while he serviced the coil carrier's motors.

The Georges brought suit against the manufacturer of the lift truck, alleging improper design and construction, failure to provide safety devices, and failure to warn users of the lack of safety devices. Plaintiffs also claimed that defendant had breached implied warranties. Defendant set forth the plaintiff's contributory negligence as an affirmative defense. The trial court held, as a matter of law, that contributory negligence is no defense but instructed the jury that plaintiff's comparative negligence could be considered when determining liability. The trial judge recognized that the issue of comparative negligence was one of first impression and concluded that, if he were wrongly in charging the jury on comparative negligence the full amount of the verdict could be reinstated on appeal.

The sole issue this Court needs to decide is whether the trial court erred by giving an instruction on comparative negligence. Panels of this Court, relying on the Supreme Court's decisions in Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974), and Tulkku v. Mackworth Rees Division of Avis Industries, Inc., 406 Mich. 615, 281 N.W.2d 291 (1979), have consistently held that a plaintiff's recovery may not be reduced because of his own negligence if the liability of the defendant arises from a failure to provide adequate safety devices in the work place. The defense of comparative negligence has been found inapposite under either the products liability statute, M.C.L. Sec. 600.2945; M.S.A. Sec. 27A.2945, or the rule announced in Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979).

In Timmerman v. Universal Corrugated Box Machinery Corp., 93 Mich.App. 680, 686, 287 N.W.2d 316 (1979), a panel of this Court stated that an instruction on comparative negligence would be improper at the retrial of a products liability action based on an alleged failure to provide safety devices on a catwalk in an industrial plant. The Court stated:

"In view of the policy reasons underlying the Funk and Tulkku decisions, being the fostering of worker protection and encouragement of employers and manufacturers to provide proper and adequate safety equipment, it seems to us that the employee's negligence cannot be raised as a defense, whether it be under a doctrine of contributory negligence or comparative negligence."

In Stambaugh v. Chrysler Corp., 96 Mich.App. 166, 292 N.W.2d 510 (1980), another panel of this Court held that plaintiffs who are injured as a result of the lack of safety equipment in the work place are entitled to have the jury determine damages free of any consideration of contributory negligence. By footnote, the Court added, "Comparative negligence instructions would, of course, be improper on remand since a finding of causal negligence by defendant forecloses any consideration of plaintiff's fault." (Emphasis in original.) Stambaugh, supra, 173, n.3, 292 N.W.2d 510.

In Tulkku v. Mackworth Rees Division of Avis Industries, Inc. (On Remand), 101 Mich.App. 709, 301 N.W.2d 46 (1980) (hereinafter Tulkku, II ), this Court found that since no negligence can be attributed to the plaintiff in a safety device case under Funk v. Tulkku, the comparative negligence statute, M.C.L. Sec. 600.2949; M.S.A. Sec. 27A.2949, has no applicability. In deciding the application of Placek, the Tulkku II panel reached the same result as other panels of this Court in Timmerman, supra, and Stambaugh, supra.

In Wells v. Coulter Sales, Inc., 105 Mich.App. 107, 115, 306 N.W.2d 411 (1981), another panel of this Court, after reviewing Funk and its progeny, summarized, "Thus, we conclude that a plaintiff's recovery may not be diminished by his own negligence if the liability of the defendant arises from the failure to provide adequate safety devices in the work place." However, the doctrine of comparative negligence was inapplicable in Wells, supra, since the case was tried to conclusion before the statute pertaining to products liability cases was enacted and before Placek was decided.

In the present case, the plaintiffs' assertion of negligence is based on defendant's failure to equip the coil carrier with a lock to keep the carriage in the raised position. Defendant contends that such a lock is not a safety device within the meaning of Funk and Tulkku. There is no question that the electric motors and carriage assembly are integrated into the lift truck and are not separate elements in a system of which the lift truck is also a component. See, Antcliff v. State Employees Credit Union, 95 Mich.App. 224, 290 N.W.2d 420 (1980), lv. gtd. 409 Mich. 903 (1981). Therefore, we find that a locking system that keeps the carriage in a raised position, which enables repairmen to perform foreseeable service to the truck's motors, is a safety device.

Based upon the foregoing cases, we hold that the trial court committed error when it instructed the jury on comparative negligence. However, it is unnecessary for us to remand for a new trial because of the trial court's practical judicial administration of this case. Since the jury was only instructed on plaintiffs' negligence claim, the defendant's liability cannot be attributed to the implied warranty theory of recovery. Furthermore, it is irrelevant whether the jury found defendant liable on its failure to provide safety devices or its failure to warn users of the lack of safety devices. This is because the legal standard under either factual issue is one of reasonable care under the circumstances. See, Smith v. E R Squibb & Sons, Inc., 405 Mich. 79, 273 N.W.2d 476 (1979). In view of the policy reasons underlying Funk and its progeny, comparative negligence is inapplicable under either factual issue. Consequently we reinstate the full amount of...