Hardy v. Monsanto Enviro-Chem Systems, Inc.

• Decision Date: 23 August 1982
• Docket Number: No. 6,Docket No. 63385,ENVIRO-CHEM,6
• Citation: 323 N.W.2d 270,414 Mich. 29
• Parties: Ruth HARDY, Administratrix of the Estate of Robert G. Hardy, deceased, Plaintiff-Appellant, Cross-Appellee, v. MONSANTOSYSTEMS, INC., a Delaware corporation, Leonard Construction Company, a Delaware corporation, Defendants-Appellees, Cross-Appellees, and J & L Roofing Company, a Michigan corporation, Defendant-Appellee, Cross- Appellant. Calendar
• Court: Michigan Supreme Court

Page 270

323 N.W.2d 270

414 Mich. 29

Ruth HARDY, Administratrix of the Estate of Robert G. Hardy deceased, Plaintiff-Appellant, Cross-Appellee, v. MONSANTO ENVIRO-CHEM SYSTEMS, INC., a Delaware corporation Leonard Construction Company, a Delaware corporation, Defendants-Appellees, Cross-Appellees and J & L Roofing Company, a Michigan corporation Defendant-Appellee, Cross- Appellant.

Docket No. 63385.

Calendar No. 6.

Supreme Court of Michigan.

Argued March 4, 1980.

Decided Aug. 23, 1982.

Murray, Mroz & Guikema by James R. Hulbert, Terry J. Mroz, Grand Rapids, for plaintiff-appellant, cross-appellee.

Wheeler, Upham, Bryant & Uhl, Buford A. Upham, Susan B. Flakne, Grand Rapids, for defendant-appellee, cross-appellee Leonard Const. Co.

Rhoades, McKee & Boer by Michael W. Betz, Ben T. Liu, Grand Rapids, for defendant-appellee, cross-appellant J & L Roofing Co.

RYAN, Justice.

In this case we are required to determine the effect of the doctrine of comparative negligence ¹ on our decisions in Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974), and Tulkku v. Mackworth Rees Division of Avis Industries, Inc., 406 Mich. 615, 281 N.W.2d 291 (1979). ² Since the defense of comparative negligence serves not to undermine but to enhance safety in the workplace, we are of the view that comparative negligence is available as a defense in those cases where Funk and Tulkku formerly prohibited the application of the contributory negligence defense. We conclude that negligence in the failure to provide an "adequate safety device" in the workplace is therefore subject to the comparative negligence defense, assuming that any evidence of the plaintiff's negligence exists. The verdict in favor of the defendants is reversed and the cause remanded for retrial under the principles of comparative negligence. Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979).

I

The facts of this case are set forth in full and accurate detail in Justice Moody's opinion, to which reference is invited. The plaintiff-appellant argues that the jury should not have been instructed that contributory negligence was a defense to the claim that the defendant construction contractors negligently installed or maintained safety devices for the protection of construction workers at the worksite.

Although the precise limits of this Court's opinion in Funk, supra, are unclear, ³ we concur with the result reached by Justice Moody in parts I-III of his opinion. Under Funk, the defense of contributory negligence is unavailable when a construction worker alleges negligence in the failure to provide adequate safety devices on the job. The plaintiff in this case presented sufficient, albeit weak, evidence upon which the jury might have concluded that the plywood sheets covering the openings in the roof were "safety devices" which were negligently installed or maintained. Absent a reconsideration of the Funk doctrine, the plaintiff would be entitled to a new trial on the negligence claim, without the defense of contributory negligence. ⁴

However, the defense of contributory negligence as a total bar to recovery would be unavailable upon retrial in any event in light of Placek, supra. We must therefore decide whether the Funk policy of promoting safety in the workplace would be undermined or enhanced by the application of the principles of comparative negligence.

II

In Funk, this Court found the total bar of contributory negligence to be inconsistent with the public policy of promoting safety in the workplace. The Court refused to allow a general contractor and a landowner to "avoid" liability "by pointing to the concurrent negligence of the injured worker in using the [unsafe] equipment". Funk, 113-114, 220 N.W.2d 641, quoting Koenig v. Patrick Construction Corp., 298 N.Y. 313, 318-319, 83 N.E.2d 133 (1948). Before Funk, the contractor could entirely avoid liability by convincing the finder of fact that the plaintiff was even 1% negligent. Apparently it was feared that some contractors might succumb to the temptation of employing skilled defense counsel instead of adequate safety devices. As the Court noted in Tulkku, 406 Mich. 622, 281 N.W.2d 291:

"To allow defendants in this case to invoke the protection of the contributory negligence doctrine would be tantamount to subverting the very safety concerns that the Koenig and Funk courts extolled as of paramount importance. Such a position might allow a manufacturer to escape its duty of due care * * *:

" 'It would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against.' " Quoting Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 412, 290 A.2d 281 (1972). (Emphasis added.)

In stark contrast, the defense of comparative negligence never allows a contractor to entirely "avoid" liability and thus "escape" the duty of due care. Under Placek, the defendant must pay the full percentage of damages caused by his negligence. We do not find this partial defense "anomalous" as does our brother; quite the contrary, it would be "anomalous" to hold a defendant liable for damages in excess of the amount causally related to his negligence. ⁵ The comparative negligence defense does not provide a strong financial incentive for contractors to breach the duty to undertake reasonable safety precautions.

Our colleague asserts that a worker's recovery should not be reduced by his own comparative negligence when he works under dangerous conditions, since "considering the current state of the economy" it "would be unrealistic to conclude that workers have a choice not to work". Unfortunately, some workers are faced with the ultimatum "[i]f you don't want to work up in the steel, go home". Funk, 392 Mich. 113, 220 N.W.2d 641. If a worker, acting reasonably under all the circumstances, would continue to work under the dangerous conditions, then the trier of fact could not conclude that the worker's recovery should be reduced, since the worker by definition was not negligent. On the other hand, at some point a worker must be charged with some responsibility for his own safety-related behavior. If a worker continues to work under extremely unsafe conditions when a reasonable worker under all the facts and circumstances would "take a walk", the trier of fact might appropriately reduce the plaintiff's recovery under comparative negligence. Comparative negligence enhances the goal of safety in the workplace under these conditions, since it gives the worker some financial incentive to act in a reasonable and prudent fashion.

The comparative negligence rule also enhances safety in the workplace by rewarding safety-conscious contractors. Undoubtedly, some contractors allow workers to refuse to work without fear of reprisal until Much the same response is appropriate to the comment that workers often become conditioned to working in dangers and deal with them prudently: continuing to work under those conditions would not constitute negligence on the part of the worker. Further, the contractor-defendant has little incentive to prove that the conditions were so dangerous that the plaintiff should have refused to work, since such an approach will probably increase rather than decrease the defendant's liability under comparative negligence. This is in contrast to the contributory negligence rule, which encouraged such a defense strategy.

dangerous conditions are reported and corrected. ⁶ Yet our colleague's approach treats such a "safe" company identically with an "unsafe" company and prevents the safe company from reducing its damages despite a plaintiff's flagrant violation of company safety policy. The irrebuttable presumption that all contractors force workers to work under hazardous conditions might well become a grim self-fulfilling prophecy if we refuse to encourage safety-conscious contractors under the doctrine of comparative negligence.

In Tulkku, we noted that many workers rely on the effectiveness of what appears to be adequate safety equipment. In that case, the worker relied upon a four-palm-button switch that proved to be defective. Such reasonable reliance, absent proof that reasonably prudent press workers do not rely on the device, is not evidence of negligence; thus, no contributory negligence instruction should have been given in Tulkku because the defendant presented no evidence of the plaintiff's negligence. The Tulkku result would therefore remain the same even after the adoption of comparative negligence, since the worker "cannot and should not be required to temper his or her behavior because of a defect about which the [worker] has no awareness". Tulkku, 406 Mich. 622, 281 N.W.2d 291. Suppose, however, that the press in Tulkku cycled after only three buttons were pushed, but no one was injured. A worker continuing to use the machine and receiving injuries the second time the switch fails should be answerable for his or her negligent behavior because the worker is fully aware of the defect. Yet our brother's opinion would hold exactly the opposite; the defense of comparative negligence would be unavailable in that situation because the worker has not "willfully" removed a safety device.

Next, our colleague argues that a worker's recovery should not be reduced because of his or her "ordinary inadvertence". To the extent that the plaintiff's behavior conforms to that of a reasonably prudent worker under all the circumstances (even reasonably prudent workers act as plaintiff did because of job pressures, monotony, and attention to details of their work), the trier of fact is free to find the plaintiff free from negligence. To the extent, however, that "ordinary inadvertence" is merely a euphemism for a worker's negligence, it should reduce a worker's recovery. Until today, the notion that "mere inadvertence" should absolve persons from the effects of their negligence has...