Graham v. Joseph T. Ryerson & Sons

• Decision Date: 01 April 1980
• Docket Number: Docket No. 78-4621
• Citation: 96 Mich.App. 480,292 N.W.2d 704
• Parties: David GRAHAM, Estella Graham, and Reliance Insurance Company, a Foreign Corporation, Plaintiffs-Appellants, v. JOSEPH T. RYERSON & SONS, a/k/a Ryerson Steel Company, and Firestone Tire& Rubber Company, an Ohio Corporation, Defendants-Appellees. 96 Mich.App. 480, 292 N.W.2d 704
• Court: Court of Appeal of Michigan — District of US

Page 704

292 N.W.2d 704

David GRAHAM, Estella Graham, and Reliance Insurance

Company, a Foreign Corporation, Plaintiffs-Appellants, v. JOSEPH T. RYERSON & SONS, a/k/a Ryerson Steel Company, and Firestone Tire& Rubber Company, an Ohio

Corporation, Defendants-Appellees.

Docket No. 78-4621.

96 Mich.App. 480, 292 N.W.2d 704

Court of Appeals of Michigan.

April 1, 1980.

Rehearing Denied May 15, 1980.

Released for Publication May 28, 1980.

[96 MICHAPP 482] George A. Jones, Detroit, for Graham.

Robert B. Miller, Southfield, for Reliance Ins. Co.

Charles C. Warner, Bloomfield Hills, for Ryerson & Son and Ryerson Steel.

[96 MICHAPP 483] Delmer C. Gowing, III, Bloomfield Hills, for Firestone Tire & Rubber.

Before KELLY, P. J., and BRONSON and RILEY, JJ.

KELLY, Presiding Judge.

Plaintiff David Graham claims damages resulting from injuries sustained when the side ring of a truck wheel blew off and struck him while he was inflating a flat tire. The side ring was part of an "RH5o " multi-piece wheel assembly manufactured by defendant Firestone Tire and Rubber Company (Firestone). Graham was a diesel mechanic in the employ of Kinnie Annex Cartage Company (Kinnie) which leased and serviced trucks. On May 1, 1973, Kinnie received a call from one of its customers, defendant Joseph T. Ryerson & Sons, a/k/a Ryerson Steel Company (Ryerson), concerning a flat tire on one of its leased trucks. The Ryerson driver was directed by Kinnie to complete his deliveries and then park the truck at the Ryerson garage. During the early morning hours of May 2, 1973, Kinnie dispatched Graham to replace the flat tire. In order to properly place the jack under the truck, Graham attempted to elevate the vehicle about 3/8 by inflating the flat tire. In response to the inflation pressure the side ring explosively disengaged from the rim base and struck plaintiff, causing severe injuries to his arms and legs.

Graham filed his complaint in February, 1974, the final amended complaint being filed in November, 1977. Graham's wife, Estella, and Kinnie's workmen's compensation insurer, Reliance Insurance Company, joined Graham as plaintiffs, their rights being completely derivative. The complaint was in three counts. Count I alleged negligence on [96 MICHAPP 484] the part of Ryerson in failing to warn Graham that the truck had been run with a flat tire and that it had been overloaded. It further alleged negligence by a Ryerson employee who moved Graham's leg after the accident and aggravated his injuries. Count II sounded in negligence against Firestone. It charged breach of a duty to warn of the hazards of the RH5o wheel and negligence in the design of that wheel. Count III alleged breach of implied warranty in the product design.

Ryerson denied the material allegations of negligence against it. Ryerson pled as affirmative defenses contributory negligence on the part of Graham and that the truck was owned and controlled by Kinnie. Firestone also denied the material allegations against it, pled contributory negligence, and pled the intervening negligence of third parties.

The trial court granted Ryerson's motion for a directed verdict. The jury found no cause of action against Firestone. The plaintiffs moved for a new trial, which the court denied in a written opinion dated October 5, 1978. The plaintiffs appeal by right.

The trial court ruled as a matter of law that defendant Firestone, manufacturer of the side ring, had no duty to warn plaintiff of the danger involved in inflating a tire that had been run while flat because of Graham's status as an "expert" in changing truck tires. Plaintiffs claim error in the trial court's refusal to submit to the jury the question of Firestone's duty to warn. An examination of the cases cited by defendant Firestone and relied upon by the trial court does not support the proposition that there is no duty to warn experts.

[96 MICHAPP 485] The trial court's reliance on Parsonson v. Construction Equipment Co., 386 Mich. 61, 191 N.W.2d 465 (1971) and its progeny is misplaced. Based upon a latent/patent defect analysis, ¹ the Parsonson Court found that a gasoline engine need not be designed to safeguard against the possibility that someone might fill the gas tank of the engine without first stopping the heater blower or engine, both obvious heat sources in very close proximity to the tank. "Here the danger of fire or explosion by the careless use of gasoline was visible and patent rather than concealed or latent". 386 Mich. at 76, 191 N.W.2d at 471. The Court concluded that plaintiff's own conduct, in the face of an obvious danger known to all adults of reasonable intelligence, was the proximate cause of injury. The duty to warn issue was not raised or discussed; however, the reasoning of the Parsonson Court was adopted in Crews v. General Motors Corp., 400 Mich. 208, 253 N.W.2d 617 (1977), and Holbrook v. Koehring Co., 75 Mich.App. 592, 255 N.W.2d 698 (1977), both of which deal, at least tangentially, with the warning question.

The evenly divided Crews Court upheld this Court's decision affirming a directed verdict for the defendant on the grounds that " 'even if the evidence sufficed to show a defect in the engine, there was absolutely no showing that this defect caused the fire' ". 400 Mich. at 214, 253 N.W.2d at 618. Plaintiff in Crews did not plead failure to warn. Justice Coleman opined that this was most likely due to his full awareness of the specific danger that could, and, in fact, did result from his conduct. Plaintiff's trial testimony, included within Justice Coleman's opinion, indicated[96 MICHAPP 486] that Mr. Crews, an experienced mechanic, knew that turning the ignition key without first disconnecting the ignition from the wires in the coil might produce sparks. Mr. Crews was working with a fuel line at the time; a spark ignited the gasoline and he was severely burned.

This Court reached a similar conclusion in Holbrook, supra, where plaintiff was an experienced crane operator who was injured when lifting an object 19,000 pounds heavier than the crane's maximum capacity. In response to plaintiff's failure to warn argument the Court stated:

"We find plaintiffs' argument on defendants' failure to warn irrelevant because plaintiff was an experienced operator of this crane and had experienced difficulties with it similar to those here complained of." 75 Mich.App. at 595, 255 N.W.2d at 700. (Emphasis added.)

We do not find the above cases supportive of the "expert" rule advanced by defendant and adopted by the trial court. Rather, these cases stand for the proposition that there is no duty to warn of dangers obvious to all users of the product or of specific dangers fully known to the complainant at the time the injury occurred.

The strongest support for defendant's position concerning the duty to warn "experts" is found in those cases which hold that the duty does not extend to members of a particular trade or profession where the danger involved is a matter of common knowledge. Eyster v. Borg-Warner Corp., 131 Ga.App. 702, 206 S.E.2d 668 (1974); Parker v. State, 201 Misc. 416, 105 N.Y.S.2d 735 (1951), aff'd 280 App.Div. 157, 112 N.Y.S.2d 695 (1952); Lockett v. General Electric Co., 376 F.Supp. 1201 (E.D.Pa.1974). These cases, however, do not establish an [96 MICHAPP 487] across-the-board rule eliminating the duty to warn tradespeople and professionals. The Eyster Court noted:

"(P)laintiff's evidence demonstrated that those who are franchised to install this Borg-Warner product should, in the ordinary course of events, have been aware of the danger of the questionable connection, since such peril was a matter of common knowledge to those in the trade. More importantly, plaintiffs' evidence showed that it was contrary to the generally accepted practice to connect aluminum and copper wiring." 131 Ga.App. 704, 206 S.E.2d 670. (Emphasis added.)

If members of the particular trade or profession commonly engage in a dangerous practice, the manufacturer's knowledge of this conduct may give rise to a duty to warn. In Casetta v. United States Rubber Co., 260 Cal.App.2d 792, 67 Cal.Rptr. 645 (1968), the Court held that the issue of failure to warn was erroneously withdrawn from the jury. Plaintiff, a tire repairman, was injured when a tire he was mounting for a customer exploded. In performing this task plaintiff used a "safety" or "hump-type" rim which called for the use of a lubricant during mounting to lessen or eliminate the danger of explosion. The defendant manufacturer provided mounting instructions, including a direction to use a lubricant, but failed to warn of the danger presented by failure to follow this direction. The Court stated:

"Questions of fact were presented with respect to the issue of whether the manufacturer should have known that the general instructions to use a lubricant were more respected in the breach than by observance, and, if so, whether special warning should have been given of the particular hazard from safety rims." 260 Cal.App. 817, 67 Cal.Rptr. 661.

[96 MICHAPP 488] In the instant case there was ample testimony that it was the common practice of diesel mechanics, Graham and others, to inflate tires in order to elevate the vehicle. We must assume that defendant was aware of this practice since it had been informed of about 40 similar blowout incidents. In light of this knowledge in particular, as well as common knowledge that vehicles with flat tires are likely to be run in that condition for varying distances and causes, we find a question exists as to the duty to warn even tire repairmen of the special danger involved. In the absence of any general rule eliminating the duty to warn "experts" we find that the trial court erred in excluding this issue from jury consideration on that basis. Although Michigan Courts have found no duty or have excused failure to warn when the danger involved is obvious or specifically known to the user of the product, the extent...