Gregory v. Cincinnati, Inc.

• Decision Date: 15 November 1993
• Docket Number: Docket No. 135587
• Citation: 202 Mich.App. 474,509 N.W.2d 809
• Parties: Michael GREGORY v. CINCINNATI, INC.
• Court: Court of Appeal of Michigan — District of US

Page 809

509 N.W.2d 809

202 Mich.App. 474

Michael GREGORY v. CINCINNATI, INC.

Docket No. 135587.

Court of Appeals of Michigan.

Submitted March 16, 1993, at Lansing.

Decided Nov. 15, 1993, at 9:50 a.m.

Released for Publication Jan. 27, 1994.

Allen T. Eaton and David T. Smorodin, Washington, DC, pro hac vice, and Kathleen Wilson, Farmington Hills, for plaintiff.

Harvey, Kruse, Westen & Milan by Dennis M. Goebel and Steven D. Brock, Troy, for defendants.

Before DOCTOROFF, C.J., and SAWYER and MURPHY, JJ.

DOCTOROFF, Chief Judge.

Defendants appeal from a September 5, 1990, judgment entered in favor of plaintiff in the amount of $1,000,000, following a jury trial in the Wayne Circuit Court. ¹ On appeal, defendants contend that the jury was improperly allowed to consider certain evidence and was improperly instructed regarding the theory of the "continuing duty" of a manufacturer to modify a product following its production and sale. We reverse the verdict and remand for a new trial.

On May 19, 1986, plaintiff was employed by Sheet Metal Industries and was operating a brake press manufactured by Cincinnati, Inc., and distributed by Addy-Morand Machinery Company. The press, sold to plaintiff's employer in 1964, was operated by a foot pedal and was designed to bend metal into various shapes. Plaintiff was operating the machine when he dropped a piece of metal onto the floor, bent over to retrieve it with his right hand, placed his left hand in the "point of operation," and apparently depressed the foot pedal, causing the machine to cycle. Plaintiff's left hand was severely crushed by the machine.

Plaintiff filed this products liability suit against defendants, claiming that the machine was defectively designed and also that defendants had failed to place the necessary warnings on the machine to inform the operator of an unreasonable risk of injury. During the course of trial, plaintiff claimed that defendants had a "continuing duty" to cure defects in the machine that became apparent after the machine had already been sold. Defendants moved in limine to prohibit plaintiff from introducing any evidence relevant to this theory and further asked that the court preclude plaintiff from arguing the theory to the jury. The court indicated that it would rule on the matter as trial progressed and would exclude any objectionable evidence.

The press at issue in this case is referred to as a general purpose brake press. The press is operated by use of a foot pedal that engages the clutch when a certain amount of pressure is exerted, causing the "ram" to come down upon the material and bend it into conformity with whatever die has been placed in the machine. The area where the metal is placed in preparation for bending is referred to as the "point of operation." Plaintiff's theory at trial was that the machine that was manufactured and sold by defendants was defective because it had no guard surrounding the point of operation and had no guard to prevent unintentional engagement of the foot pedal. Defendants acknowledged that the lack of a guard at the point of operation constituted a threat of injury, but asserted that the machine could not perform its intended functions with the proposed guard systems that existed at the time the machine was designed and manufactured. In addition, defendants asserted that plaintiff's employer was offered other models of the machine that were operated with foot switches or dual palm controls, but plaintiff's employer chose the model operated by the foot pedal.

Beginning with plaintiff's opening argument, and continuing throughout the entire trial, plaintiff was permitted to argue and introduce evidence of the theory of continuing duty. At the close of plaintiff's proofs, defendants moved for a directed verdict, arguing that there was no legally recognized continuing-duty theory in Michigan and asking the court to remove the theory from the jury's consideration. The court refused, stating that plaintiff produced sufficient evidence to support the theory. Following defendants' proofs, plaintiff argued the theory extensively to the jury and requested a special instruction regarding the theory, which was given by the court after some modification. The jury found that plaintiff had suffered $1,500,000 in damages. However, the jury also concluded that plaintiff was 33 1/3 percent negligent, thereby reducing his recovery to $1,000,000.

Defendants' sole argument in this appeal is that the court committed error warranting reversal in allowing plaintiff to present the theory of continuing duty to the jury. We agree.

Whether a manufacturer owes a duty to a party is a question of law to be decided by the court. Glittenberg v. Doughboy Recreational Industries (On Rehearing), 441 Mich. 379, 386, 491 N.W.2d 208 (1992). A manufacturer has a duty to design its products in such a manner as to eliminate any unreasonable risk of foreseeable injury. Prentis v. Yale Mfg. Co., 421 Mich. 670, 692-693, 365 N.W.2d 176 (1984); Shipman v. Fontaine Truck Equipment Co., 184 Mich.App. 706, 711, 459 N.W.2d 30 (1990). The conclusion that a duty is owed by one to another represents a judgment, as a matter of policy, that the latter is entitled to protection from the former's conduct. Antcliff v. State Employees Credit Union, 414 Mich. 624, 631, 327 N.W.2d 814 (1982). At least one scholarly legal article has recognized that a manufacturer owes no duty to its consumers to modify products that have already been sold so as to bring them current with state-of-the-art safety features. See note, The manufacturer's duty to notify of subsequent safety improvements, 33 Stanford L.R. 1087, n. 2 (1981).

In order to sustain a claim of products liability, a plaintiff may opt to show that there was a defect in a product's design or that the manufacturer failed to warn of a risk inherent in the product's design. The focus of a design-defect case is on the quality of a manufacturer's decision in light of the prevailing standards and state of technology in existence at the time the product was designed. See Prosser & Keeton, Torts (5th ed), § 99, p. 701; Prentis, supra, at 687, 365 N.W.2d 176. In a design-defect case, a plaintiff may proceed under a theory of negligence or breach of warranty. Id. at 693, 365 N.W.2d 176. In order to sustain a cause of action, a plaintiff is obligated to prove that a product itself is actionable--that there is something wrong with the product that makes it dangerous. Id. at 683, 365 N.W.2d 176. With regard to a failure-to-warn claim, a manufacturer is considered negligent if it fails to warn a purchaser about dangers associated with the intended use of the product as well as those dangers associated with foreseeable misuse. Antcliff, supra, at 637-638, 327 N.W.2d 814; Bullock v. Gulf & Western Mfg., 128 Mich.App. 316, 322, 340 N.W.2d 294 (1983). A manufacturer may also have a duty to warn of latent defects of which it has knowledge, even though the product has already been placed into the stream of commerce. Comstock v. General Motors Corp., 358 Mich. 163, 177-178, 99 N.W.2d 627 (1959).

As a general matter, evidence of prior accidents is admissible to show notice of the defect or to show that the defect, in fact, existed. Freed v. Simon, 370 Mich. 473, 475, 122 N.W.2d 813 (1963); Wheeler v. Grand Trunk W.R. Co., 161 Mich.App. 759, 762, 411 N.W.2d 853 (1987). In addition, safety standards in existence before the time that the manufacturing took place may be admitted to evaluate the design decision. Shears v. Pardonnet, 80 Mich.App. 358, 364, 263 N.W.2d 373 (1977). The rationale behind the rule limiting admissibility of the safety standards to premanufacture standards is that subsequent standards may reflect a new consensus in the industry, rather than a codification of a prevailing view in the industry at the time the product was manufactured. Id.

In this case, the trial court erred in allowing plaintiff to introduce evidence and argument in support of the continuing-duty theory. In his opening statement, plaintiff's counsel stated as follows:

Their case boils down to a sacred issue, and the plaintiffs [sic] expect the evidence to show that the defendant Cincinnati Machine had a duty to fix the machine that smashed Michael Gregory's hand and ruined his life.

* * * * * *

The evidence will show that between 1964 and that fateful date in 1986 when Michael lost much of his hands [sic] that Cincinnati learned time and time again that this unguarded foot pedal and that the unguarded point of operation was smashing worker's [sic] fingers and hands but it did nothing, it stood back and denied its duty to guard the direct path which it had created.

Throughout the trial, plaintiff introduced testimony and evidence to substantiate the claim that defendants became aware of the danger after the machine was designed, but took no affirmative steps to alter the physical characteristics of the machine to eliminate the danger. ²

At one point in the trial, plaintiff moved for admission of photographs of similar presses containing guards on the foot pedals. Defendants questioned the witness who took the pictures to determine whether the pictures depicted presses that had been manufactured before 1964 and to determine whether the guards on the foot pedals were added by the consumers. When the witness was unable to answer, and in fact admitted that it was likely that the consumers added the guards, defendants objected to the admission of the photos as not relevant. The court, without explanation, admitted the photographs over defendants' objection.

Thereafter, plaintiff's expert testified regarding the continuing-duty theory, stating:

In my opinion if Cincinnati had not discovered the hazard and risk of injury in 1964, and thus didn't provide any point of operation protection and then discovered that hazard and risk at some later time, in my opinion they had a duty to correct that defect in the...