Glavin v. Baker Material Handling Corp.

• Decision Date: 16 March 1984
• Docket Number: Docket No. 64947
• Citation: 132 Mich.App. 318,347 N.W.2d 222
• Parties: Eugene R. GLAVIN, Jr., and Rosalyn Glavin, his wife, Plaintiffs-Appellants, and Michigan Mutual Insurance Company, Intervenor-Plaintiff, v. BAKER MATERIAL HANDLING CORPORATION, Defendant-Appellee. 132 Mich.App. 318, 347 N.W.2d 222
• Court: Court of Appeal of Michigan — District of US

Page 222

347 N.W.2d 222

Eugene R. GLAVIN, Jr., and Rosalyn Glavin, his wife Plaintiffs-Appellants and Michigan Mutual Insurance Company, Intervenor-Plaintiff, v. BAKER MATERIAL HANDLING CORPORATION, Defendant-Appellee.

Docket No. 64947.

132 Mich.App. 318, 347 N.W.2d 222

Court of Appeals of Michigan.

Submitted Oct. 4, 1983.

Decided Feb. 21, 1984.

Released for Publication March 16, 1984.

[132 MICHAPP 319] Hurwitz & Karp, P.C. by Miles A. Hurwitz and Howard I. Wallach, Dearborn Heights, for Glavins.

Fox & Fletcher, P.C. by Thomas G. Cardelli, Southfield, for Baker Material Handling Corp.

[132 MICHAPP 320] Brakora, Pentis & Smith by Douglas S. Dovitz, Detroit, for Michigan Mut. Ins. Co.

Before KELLY, P.J., and HOOD and SHEPHERD, JJ.

SHEPHERD, Judge.

Appellants Glavin appeal as of right from a jury verdict of no cause of action, specifically arguing that the trial court erred in refusing to instruct the jury on appellants' breach of implied warranty claim. Appellants also appeal the trial court's orders denying their motions for a new trial and for payment of half of all litigation expenses by intervenor-plaintiff Michigan Mutual Insurance Company, the workers' compensation insurer of appellant Eugene Glavin's employer.

FACTS

Appellant Eugene Glavin (Eugene) was employed by Central Cartage Company as a dock freight handler. On March 2, 1978, as Eugene stood near the back of one forklift, a co-worker backed the forklift that he was driving in Eugene's direction. While doing so, he inadvertently turned the steering wheel and struck Eugene, pinning him between the two vehicles. The driver of the forklift did not see Eugene prior to impact, nor did Eugene see him approaching.

Appellants instituted an action against appellee Baker Material Handling Corporation, the manufacturer of the forklift, alleging that the forklift was defective because it did not have certain safety devices: a beeper to signal when a forklift was backing up and a rear-view mirror. These devices were options which were offered by appellee but which had not been ordered by Central Cartage Company on the forklifts which they had [132 MICHAPP 321] purchased. The crux of appellants' claim involved appellee's failure to properly equip the forklift with these safety devices. At the trial, appellants' counsel requested that the court instruct the jury on both negligence and breach of implied warranty. The court refused to give the instruction on implied warranty. After the verdict, appellants moved for a new trial based on the court's failure to give the requested instruction. The trial court denied the motion. Appellants also argued that the workers' compensation insurance carrier (Michigan Mutual), the intervening plaintiff, should share in the costs and expenses incurred in the third-party action against appellee. The trial court ruled that such an allocation of costs was limited to cases where recovery had been effected and denied appellants' motion to have Michigan Mutual share the expenses and costs of an appeal.

I

Appellants argue that negligence and breach of implied warranty are distinct theories and, therefore, the trial judge should have instructed on both. Negligence, according to appellants, focuses on the reasonableness of the conduct of the manufacturer, while breach of warranty focuses on the actual defect of the product. Under an implied warranty theory, a defect is established by proof that a product is not reasonably fit for its intended, anticipated, or reasonably foreseeable use. Elsasser v. American Motors Corp., 81 Mich.App. 379, 384, 265 N.W.2d 339 (1978); Dooms v. Stewart Bolling & Co., 68 Mich.App. 5, 14, 241 N.W.2d 738 (1976). Furthermore, failure to provide a safety device on a product may be considered a defect such as will support a breach of warranty claim. Antcliff v. State Employees Credit Union, 95 Mich.App.[132 MICHAPP 322] 224, 230, 290 N.W.2d 420 (1980). ¹ Therefore, argue appellants, the jury in the instant case could have found the forklift defective without negligence on the part of appellee.

In Smith v. E.R. Squibb & Sons, Inc., 405 Mich. 79, 273 N.W.2d 476 (1979), the Supreme Court discussed the distinction between the two theories of recovery presented here by appellants:

"The distinction between the elements of negligence and breach of implied warranty is that in the former plaintiff must prove that the defect was caused by the manufacturer's negligence, whereas under In Smith, the factual issue involved was not whether the pharmaceutical product was defective (there was no intrinsic defect in the drug) but whether the manufacturer had provided adequate warnings. The Court found that, on the facts of that case, the proposed theories of negligence and breach of implied warranty involved identical facts and required proof of the same elements, because the focus was on the adequacy of the warning in both cases. The existence of a product defect and a breach of duty were, therefore, determined by the same standard: reasonable care under the circumstances. Smith, supra, pp. 89-90, 273 N.W.2d 476. The trial court's refusal in Smith to instruct on implied warranty was, as a result, not an abuse of discretion. The Court in Smith limited its opinion solely to the facts presented there and noted that, on different facts, it could be prejudicial error not to give [132 MICHAPP 323] requested implied warranty instructions. Smith, supra, p. 91, 273 N.W.2d 476.

the warranty theory, plaintiff need only establish that the defect was attributable to the manufacturer, regardless of the amount of care utilized by the manufacturer." 405 Mich. 89, 273 N.W.2d 476.

In the instant case, the negligence alleged by appellants was appellee's failure to equip the forklift with safety back-up devices. The product defect in the forklift which resulted in a breach of the implied warranty was the lack of safety back-up devices. The mere fact that both claims rest on the absence of safety back-up devices does not require application of the holding in Smith and a finding that the trial court properly refused to instruct on both theories. Smith involved a defect-free product; the only question was whether notice was adequate. Here, two questions have been raised by appellants: whether a manufacturer was negligent and whether, regardless of the manufacturer's negligence, a product was defective.

In Prentis v. Yale Manufacturing Co., 116 Mich.App. 466, 323 N.W.2d 444 (1982); this Court found erroneous a trial court's refusal to give a requested instruction on breach of warranty, a refusal based on the mistaken belief that the statute on products liability, M.C.L. Sec. 600.2945 et seq.; M.S.A. Sec. 27A.2945 et seq., had merged all former products liability theories into one single unified theory and that the jury could, therefore, only be instructed with respect to a negligence theory. The Court in Prentis ruled, however, that the breach of warranty theory had not been abolished by the statute, which essentially governed computation of damages. The Court then pointed out the potential danger to the plaintiff of instructing the jury on only a negligence theory where the plaintiff had also alleged a breach of warranty:

"The jury, which was given instructions only on a theory of negligence, found that the product was not 'defectively designed by [defendant]'. That verdict could [132 MICHAPP 324] have been based either upon a finding that there was no defect or upon a finding that, even if there was a defect, it was not caused by the manufacturer's negligence. If the verdict was indeed based on the latter finding, a properly instructed jury could have justifiably found that the defect was attributable to the manufacturer--regardless of the amount of care utilized by the manufacturer--and returned a verdict in favor of the plaintiffs under a theory...