Goldman v. Phantom Freight, Inc.

• Decision Date: 20 October 1987
• Docket Number: Docket No. 86470
• Citation: 413 N.W.2d 433,162 Mich.App. 472
• Parties: Elaine GOLDMAN, Personal Representative of the Estate of Bruce Goldman, Deceased, Plaintiff-Appellant, v. PHANTOM FREIGHT, INC., a Michigan corporation, Defendant-Appellee. 162 Mich.App. 472, 413 N.W.2d 433
• Court: Court of Appeal of Michigan — District of US

Page 433

413 N.W.2d 433

Elaine GOLDMAN, Personal Representative of the Estate of Bruce Goldman, Deceased, Plaintiff-Appellant, v. PHANTOM FREIGHT, INC., a Michigan corporation Defendant-Appellee.

Docket No. 86470.

162 Mich.App. 472, 413 N.W.2d 433

Court of Appeals of Michigan.

Submitted Oct. 15, 1986.

Decided April 27, 1987.

Released for Publication Oct. 15, 1987.

Leave to Appeal Denied Oct. 20, 1987.

[162 MICHAPP 474] Kelman, Loria, Downing, Schneider & Simpson by Morton E. Schneider and Nicholas J. Rine, Detroit, for plaintiff-appellant.

Sullivan, Ward, Bone, Tyler, Fiott & Asher by David M. Tyler and Michael J. Walter, Detroit, for defendant-appellee.

Before GRIBBS, P.J., and HOOD and FERGUSON, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from a directed verdict of no cause of action which was granted pursuant to defendant's motion at the close of plaintiff's proofs. Plaintiff filed a negligence and breach of warranty claim stemming from the death of Bruce Goldman who was killed while operating a forklift owned by defendant Phantom Freight, Incorporated. The forklift tipped over, crushing the decedent's skull under the forklift's overhead guard. Plaintiff's complaint alleged that defendant was negligent in the following respects:

"A. Furnishing a vehicle for use without ascertaining that it was safe to operate for the purposes for which it was intended to be used;

"B. By failing to inspect and test the vehicle in question in order to determine that it was safe to operate for the purposes for which it was intended to be used;

[162 MICHAPP 475] "C. Failing to exercise due care in the premises;

"D. Failing to exercise due care to warn the users and operators of said vehicle as to the hazards and dangers involved in the use of said vehicle and failing to provide necessary instructions as to its safe use."

Plaintiff also alleged that defendant breached implied and express warranties that the forklift was not defective and was reasonably safe for its intended use in that it lacked necessary safety devices, warnings and instructions.

At the time of the accident, the decedent's employer Metro Lift Truck (Metro), which engaged in the repair and maintenance of forklift vehicles, shared warehouse space with defendant pursuant to a rental agreement. The respective owners also informally agreed to some mutual use of each other's equipment and employees as needed. Accordingly, defendant's forklift was often used by Metro's employees to remove trash or perform tasks in the course of Metro's business. The forklift was kept parked in the warehouse with the keys in it.

Although Metro had no formal training program, decedent was learning forklift mechanics by working along with Metro's other employees. In the course of his employment, decedent received some instruction on the operation of forklifts and occasionally used defendant's forklift to remove trash from the building. Although he had no forklift operator's license, decedent was capable, in his employer's opinion, of using a forklift for that purpose. There was no evidence that defendant's president was ever made aware of such use by decedent. However, decisions regarding use of the forklift by Metro's employees were apparently left entirely to the discretion of one of Metro's partners, Dayton Ashby.

[162 MICHAPP 476] On December 4, 1980, decedent was instructed by defendant's president, Frank Hardy, to remove a large piece of paint-saturated cardboard lying on the floor. Although there was some inconsistent testimony concerning the cardboard's size and weight, it weighed at most fifty pounds. In Hardy's opinion, there was no reason that anyone would need a forklift to pick it up. After giving these instructions, Hardy left the area. Decedent, apparently on his own initiative, proceeded to use defendant's forklift to remove the cardboard. Although there were no witnesses to the accident, the vehicle tipped over as decedent was turning a corner outside the warehouse, killing him instantly. Representatives of decedent's employer were not present at the time.

At trial, plaintiff offered proof of the forklift's unfitness through the deposition testimony of an expert, John B. Sevart. In essence, Sevart's testimony was to the effect that the forklift was unfit because it was equipped with an overhead guard without any concomitant restraining devices to prevent persons from being thrown under the guard in the event of a tip-over.

During opening arguments, there were objections by both attorneys to statements made in the course of the arguments. As a result, counsel and the trial judge met in chambers for an off-the-record discussion. Following opening arguments, plaintiff moved for a mistrial, based upon the discussion in chambers. The motion was denied.

At the close of plaintiff's proofs, defendant moved for a directed verdict predicated upon the absence of any legal duty owed to decedent with respect to the design of the forklift and upon plaintiff's failure to establish the existence of a design defect. The trial court granted the motion, essentially basing its opinion upon the absence of [162 MICHAPP 477] any legal duty on the strength of the proofs submitted. In response, plaintiff's counsel renewed his motion for a mistrial on the basis of bias. Plaintiff's motion was again denied. The propriety of these two rulings by the trial court constitute plaintiff's issues on appeal.

A defendant is entitled to a directed verdict where a plaintiff has failed to establish a prima facie case. However, directed verdicts, particularly in negligence cases, are viewed with disfavor. When a fact question is presented upon which reasonable persons could reach differing conclusions, the trial judge may not take the question from the jury. In deciding whether the trial court erred in entering a directed verdict, we review all the evidence presented to determine whether a question of fact existed. In so doing, we view the evidence in a light most favorable to the nonmoving party, granting him every reasonable inference and resolving any conflict in the evidence in his favor. If the evidence viewed in this manner establishes a prima facie case, we must reverse the trial court's grant of a directed verdict. Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975). Cody v. Marcel Electric, 71 Mich.App. 714, 717, 248 N.W.2d 663 (1976), lv. den. 399 Mich. 851 (1977).

Factually, the court found that it was unreasonable for defendant to foresee decedent's use of its forklift. The court also found that, at best, the agreement between defendant and Metro was only an implied permission to use defendant's forklift in the course of Metro's business. Under these circumstances, the court, therefore, concluded that, as a matter law, defendant owed no duty to decedent in tort and that no implied warranty of fitness existed in contract.

The testimony provided no evidence that decedent's use of the forklift was at defendant's direction. [162 MICHAPP 478] Defendant's president testified that he merely asked decedent to throw out a piece of cardboard. There is no evidence to suggest that defendant was aware that decedent would use the forklift to carry out this instruction or, indeed, aware that decedent had ever used the forklift for any purpose at all.

However, there was testimony of an agreement between defendant and decedent's employer which allowed them to use each other's equipment and employees as needed. Nonetheless, the trial court concluded that "the proofs do not come even close to establishing [a bailment] arrangement." We disagree and find that plaintiff's proofs were sufficient to establish a prima facie case on the question of a relationship which might give rise to an implied warranty of fitness for a particular purpose.

2 Restatement Torts, 2d, Sec. 388, pp. 300-301, concerning chattels known to be dangerous for their intended use, provides:

"One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

"(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

"(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

"(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous."

[162 MICHAPP 479] Further, where a bailment for mutual benefit is established, 8 Am.Jur.2d, Bailments, Sec. 163, pp. 895-896, provides the general rule where a chattel is let for hire:

"While in bailments for gratuitous use the bailor is only liable for injuries due to his failure to disclose latent defects of which he was aware, it is otherwise where there is compensation for the use and the bailment is for the mutual benefit of both parties; in such a case his obligation is correspondingly enlarged. This distinction is fundamental and seems to be generally recognized.

"There is no question that if a bailor for hire has actual knowledge of defects in, or dangerous qualities of, the subject of bailment that are not known to the bailee and may result in injury to him, he is bound to disclose such defects or dangerous qualities to the bailee and may be held...