Gregory v. Cincinnati Inc.

Decision Date15 August 1995
Docket NumberNo. 8,No. 98284,98284,8
Parties, 64 USLW 2127, Prod.Liab.Rep. (CCH) P 14,503 Michael GREGORY, Plaintiff-Appellant, and Crum & Forster Insurance, Plaintiff, v. CINCINNATI INCORPORATED, and Addy-Morand Machinery Company, Defendants-Appellees. Calendar
CourtMichigan Supreme Court

Allen T. Eaton, David T. Smorodin, and Ernest W. McIntosh, Jr., Washington, DC, and Kathleen Wilson, Kalamazoo, for plaintiff.

Harvey, Kruse, Westen & Milan, P.C. by Dennis M. Goebel and Maurice A. Borden, Troy, for defendants.

Plunkett & Cooney, P.C. by Mary Massaron Ross, Detroit, for amicus curiae Michigan Defense Trial Counsel, Inc.

Mark Granzotto, Jeffrey T. Meyers, and Richard E. Shaw, Detroit, for amicus curiae Michigan Trial Lawyers Association.


RILEY, Justice.

At issue in this case is the propriety of a continuing duty to repair or recall theory of products liability in a negligent design case. The inquiry is whether Michigan law recognizes a continuing duty to repair or recall and, if not, on these facts, whether it was error to introduce this theory and its accompanying evidence. We hold that there is no continuing duty to repair or recall a product. The inquiry in a design defect case requires the trier of fact to assess the risks and utility of the product at the time of manufacture. Evidence of conduct after the date of manufacture improperly shifts the focus from the premanufacturing decision and has the potential to taint any finding of liability. Moreover, we are persuaded that any duty to repair or recall is appropriately left to administrative agencies or the Legislature, who can better determine under what circumstances a duty should be imposed. In this case, we hold that the continuing duty instruction was error requiring reversal for both the manufacturer and the seller. Hence, we affirm the decision of the Court of Appeals.


On May 16, 1986, plaintiff Michael Gregory, a sheet metal worker was injured while operating a press brake owned by his employer Sheet Metal Industries (SMI). The press brake was designed and manufactured by Cincinnati Incorporated, in 1964 and sold or distributed by Addy-Morand Machinery in the same year.

A press brake is an industrial machine used to shape and form sheet metal. While there are several types of press brakes, a general purpose press brake is at issue in this case. This press brake allowed the operator to shape all types and sizes of metal. To activate, the operator would depress a foot pedal causing the "ram" to descend onto the metal, thereby forming whatever shape is needed.

On the day of the accident, plaintiff was using this general purpose press brake when a piece of metal popped out of the machine and fell on the floor. He bent down to pick it up and placed his left hand on the press brake's "point of operation," i.e., the area where the machine actually performs the bending and shaping. The testimony indicated that in doing so he either stepped on the foot pedal, causing the machine to cycle, or already had his foot on the pedal and depressed it even further when bending down, thus causing it to cycle. Consequently, plaintiff's thumb was severely crushed, later requiring amputation. 1

Plaintiff brought suit against Cincinnati and Addy-Morand. He alleged that Cincinnati negligently designed the press brake because it lacked adequate guarding at the point of operation and on the foot pedal. Moreover, plaintiff alleged that Cincinnati had a continuing duty to repair or recall the product by installing various safety guards. Against the seller Addy-Morand, plaintiff alleged breach of implied warranty in selling a defectively designed press brake. However, plaintiff did not assert any independent claims of negligence or other conduct 2 aside from that deriving from Cincinnati.

In the trial court, defendants filed a motion in limine to preclude evidence of any continuing duty. Although unclear, it appears that the trial judge tentatively denied the motion, but stated he would consider further objections when and if they arose. Although there were no objections to the opening and closing arguments, defendants objected to postmanufacture evidence on relevancy grounds. In each case, the objection was overruled.

Thus, when plaintiff called Cincinnati's representative Dennis Cloutier as an adverse witness, plaintiff's counsel was permitted to introduce evidence of OSHA standards promulgated in 1971, which require employers to install guardings on press brakes. This led to the presentation of Cincinnati's two postmanufacture service calls and evidence that plaintiff's employer, years later, requested and received price quotes to update the machine to conform with the OSHA provisions. 3 Plaintiff also elicited evidence of electronic sensing devices developed for use in the United States after 1964 4 and was permitted to question Mr. Cloutier about Cincinnati's failure to recall the machine.

Plaintiff's only expert opined that if Cincinnati discovered after 1964 that the press brake was defective for not having adequate guarding, it "had a duty to correct that defect in the machine" and that, if it had, the accident would not have occurred. Furthermore, over defendants' objection, plaintiff admitted a photograph of a foot pedal guard despite the inability to identify any manufacturer having such a device in 1964.

At the conclusion of the evidence, Cincinnati moved for a directed verdict on the continuing duty instruction, contending that there is no basis in Michigan law for such instruction. The judge denied the motion and presented the question to the jury.

Against Cincinnati, the jury was instructed on a standard negligent design theory. However, it was further instructed that a manufacturer has a duty to incorporate new advances in technology and that "a manufacturer who learns of a design defect after the product has been sold has a duty to take reasonable actions to correct the defect. It is for you to determine what constitutes reasonable actions." On the verdict form, the jury was further instructed to answer whether Cincinnati was "negligent in one or more of the ways claimed by the plaintiff." These "ways" to find negligence were either negligent design or some form of continuing negligence, i.e., repair or recall. Against the seller Addy-Morand, the jury was instructed in accordance with the implied warranty theory only. The jury found both defendants liable and returned a verdict for plaintiff in the amount of $1 million. 5

The Court of Appeals reversed and remanded, finding that Michigan law does not impose on manufacturers a duty to repair or recall a product after its release into the stream of commerce. 202 Mich.App. 474, 509 N.W.2d 809 (1993). Reviewing Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959), the Court held that a manufacturer has the duty to warn of a latent defect, but does not have a duty to repair a latent defect. The Court found that admission of this theory of liability and its accompanying evidence resulted in error requiring reversal because the jury may have found Cincinnati

liable on the basis of their failure to take affirmative steps to alleviate the risk of injury after the machine had been sold, notwithstanding the possibility that the product may not have been "defective" when the machine was designed and sold according to those standards extant in 1964. [202 Mich.App. at 484-485, 509 N.W.2d 809.]

With regard to the distributor Addy-Morand, the Court found that the same erroneous instruction tainted evidence of a point-of-manufacture defect because the warranty claim against Addy-Morand was derivative of the design defect, i.e., there was no independent evidence of negligence or breach of warranty by Addy-Morand. Judge Murphy dissented, finding no error in the instruction or theory of products liability. We granted plaintiff's application for leave to appeal. 6


The central problem in a negligent design case in admitting postmanufacture evidence or imposing a postmanufacture duty to repair or recall is the possibility of taint or jury confusion with respect to any finding of negligence at the time of manufacture. Generally, before there can be any continuing duty--whether it be to warn, repair, or recall--there must be a defect or an actionable problem at the point of manufacture. If there is no defect or actionable problem at this point, then there can be no continuing duty to warn, repair, or recall. Hence, when that distinction is not clearly presented, the potential for jury confusion is great, as well as the possibility of holding a manufacturer liable for postmanufacture improvements, which, as explained below, is contrary to Michigan law.

Moreover, in the usual case in which an issue of latency is not presented, the existence of a point-of-manufacture defect or other actionable problem entitles a plaintiff to full recovery if proven by a preponderance of the evidence. Hence, the need for presenting a continuing duty theory with its accompanying evidence in this situation is nil, while the possibility for jury taint or confusion is high. In order to fully understand these principles, a review of the various theories of negligent design is necessary.

In Michigan, there are two theories that will support a finding of negligent design. 7 The first theory is based on a failure to warn. This theory renders the product defective even if the design chosen does not render the product defective. See Gerkin v. Brown & Sehler Co., 177 Mich. 45, 57-58, 143 N.W. 48 (1913); Comstock, supra; American Law of Products Liability, 3d, § 32:2, pp. 17-19. This warning includes the duty to warn about dangers regarding the intended uses of the product, as well as foreseeable misuses. Antcliff v. State Employees Credit Union, 414 Mich. 624, 637-638, 327 N.W.2d 814 (1982). If, however, the manufacturer is not aware of the defect...

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