Huff v. Ford Motor Co.

• Decision Date: 15 September 1983
• Docket Number: Docket No. 64942
• Citation: 127 Mich.App. 287,338 N.W.2d 387
• Parties: Fara HUFF, individually, and as Personal Representative of the Estate of TED Huff, Jr., deceased, Plaintiff-Appellant, v. FORD MOTOR COMPANY, A Delaware Corp., E.I. DuPont De Nemours & Company, a foreign corp., Pelmore Laboratories, Inc., a Pennsylvania corp., Stanley-Carter Company, a Michigan corp., Cunningham Engineers, Inc., a Michigan corporation, and Envirofab, Inc., a Michigan corp., jointly and severally, Defendants-Appellees. 127 Mich.App. 287, 338 N.W.2d 387
• Court: Court of Appeal of Michigan — District of US

Page 387

338 N.W.2d 387

Fara HUFF, individually, and as Personal Representative of the Estate of TED Huff, Jr., deceased Plaintiff-Appellant, v. FORD MOTOR COMPANY, A Delaware Corp., E.I. DuPont De Nemours & Company, a foreign corp., Pelmore Laboratories, Inc., a Pennsylvania corp., Stanley-Carter Company, a Michigan corp., Cunningham Engineers, Inc., a Michigan corporation and Envirofab, Inc., a Michigan corp., jointly and severally, Defendants-Appellees.

Docket No. 64942.

127 Mich.App. 287, 338 N.W.2d 387

Court of Appeals of Michigan.

Submitted Jan. 18, 1983.

Decided May 25, 1983.

Released for Publication Sept. 15, 1983.

[127 MICHAPP 289] Milan, Miller, Berger, Brody & Miller, P.C. by Martin M. Miller, Detroit (Edward Grebs, Detroit, of counsel), for plaintiff-appellant.

Collins, Einhorn & Farrell, P.C. by Morton H. Collins and Noreen L. Slank, Southfield, for defendant-appellee Envirofab, Inc.

Before T.M. BURNS, P.J., and MAHER and HOOD, JJ.

PER CURIAM.

Plaintiff appeals as of right from a summary judgment granted to defendant Envirofab, Inc., in this wrongful death action.

Plaintiff's decedent, Ted Huff, Jr., died on April 20, 1980, as a result of injuries he sustained on the job on April 11, 1980. Mr. Huff was a painter employed with the Morgan Watt Painting Company. Morgan Watt was a subcontractor for the Stanley-Carter Company, general contractor for a building project at the Ford Motor Company's Dearborn Engine Plant.

Mr. Huff entered a newly manufactured oily waste treatment tank in order to coat the tank's interior with PLV-2000-Viton, an elastomer compound manufactured by defendants Pelmor Laboratories, Inc. and E.I. DuPont de Nemours & Company. While in the tank, Mr. Huff apparently dropped an unguarded electrical light. Sparks ignited PLV-2000-Viton fumes which caused an explosion. Mr. Huff died from severe burns and other injuries he sustained in that explosion.

Defendant Envirofab fabricated the oily waste [127 MICHAPP 290] tank and Stanley-Carter Company employees erected the tank at the Engine Plant.

Plaintiff filed her complaint on May 21, 1980. In that complaint, she alleged that applying Viton in the manner specified created an inherently hazardous and dangerous condition within the tank. Plaintiff generally alleged that the dangerous condition and resulting explosion were caused by the defendants' negligence, and gross, willful, and wanton misconduct. As to defendant Envirofab plaintiff alleged:

"26. That the defendants herein, including the fabricator, were negligent in failing to provide and recommend a means of safe ventilation of the fumes created by the aforementioned ultra-hazardous substance during its application, as well as a lighting system within said tank that was safe and compatible with the ultra-hazardous nature of the substance used by the plaintiff's decedent.

"27. That said defendants herein failed to provide, prescribe and recommend the use of a safe lighting mechanism that plaintiff's decedent could have used during the course of applying the aforementioned ultra-hazardous substance so as to prevent the creation of ingredients for an explosion which resulted in plaintiff's decedent's severe, painful and fatal injuries as hereinbefore set forth.

* * *

"30. That the defendant, ENVIROFAB, INC., [failed?] (sic) to provide a lighting system and openings for the aforesaid tank which would allow plaintiff's decedent to perform his work in a safe environment.

* * *

"33. That all of said defendants contributed to the creation of the inherently hazardous and dangerous condition resulting in the death of plaintiff's decedent.

However, plaintiff also alleged:

[127 MICHAPP 291] "36. That said defendant, FORD MOTOR COMPANY, and the defendant, CUNNINGHAM ENGINEERS, INC., were responsible for the design and development of the specifications on said oily waste tank, and further, said defendant, FORD MOTOR COMPANY, employed its agents, representatives and employees to supervise and monitor the construction of said oily waste tank.

Plaintiff alleged that defendants Stanley-Carter and Ford Motor Company owed Mr. Huff certain duties which they had breached and that the defendants had "violated the Federal OSHA requirements as well as the Michigan OSHA requirements and the Common Law of the State of Michigan".

At the hearing on defendant Envirofab's motion for summary judgment, defense counsel referred to interrogatories and requests to admit to argue that plaintiff had not discovered any evidence to show that the tank design or specifications violated government standards. Plaintiff argued that Envirofab's own employees testified when deposed that safety vents could have been installed in the tank that would have eliminated the pressure from the Viton fumes. Plaintiff's counsel argued that defendant knew that individuals, like Mr. Huff, would be coating the inside of the tank and should have protected those individuals by adding extra safety devices, such as the vents. Plaintiff's counsel argued that an expert fabricator like defendant would know that the design specifications were negligent and, by failing to correct that design, would also be negligent.

The trial court responded to plaintiff's arguments:

"I don't have any problem with the possibility of the designer being negligent without the particular vents, [127 MICHAPP 292] but we're not concerned with the designer, what we're concerned with is a subcontractor having a contract to do a particular thing, and the contractor does exactly what's expected of him, and you assert it's negligent. Not to--really it's negligent to perform his contract. Mr. Berger, that is a theory I can't accept in any way.

"Motion is granted".

Plaintiff raises two arguments in this appeal. First, plaintiff argues that the trial court erred by granting summary judgment because plaintiff raised material issues of fact; that constructing the tank according to defendant Cunningham's specifications does not absolve defendant of liability if it knew or should have known those specifications were inadequate or defective. Plaintiff's second argument is that summary judgment was prematurely granted before discovery was complete. Plaintiff's counsel stated at the hearing that four depositions were pending and an additional fifteen had been noticed.

We review this summary judgment without a complete lower court record. The record does not include the defendant's motion and brief in support or plaintiff's reply and brief in support. Thus, we are unable to conclusively determine whether this motion was brought pursuant to GCR 1963, 117.2(1), failure of plaintiff to state a claim, or GCR 1963, 117.2(3), no genuine issue of material fact. Moreover, the trial court failed to state the basis for granting the motion either on the record or in the written order. This, of course, adds confusion to our review as we are forced to guess at the basis for the motion. See, Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1967 D C L Rev 397, 400.

A motion for summary judgment brought pursuant to (GCR 1963, 117.2(1), failure of the opposing party [127 MICHAPP 293] to state a claim, is to be resolved by reference to the pleadings alone. Chatham Supermarkets, Inc. v. Ajex Asphalt Paving, Inc., 370 Mich. 334, 121 N.W.2d 836 (1974); Todd v. Biglow, 51 Mich.App. 346, 214 N.W.2d 733 (1974). This motion tests the legal sufficiency of the claims, not whether there is any factual support for the claims. Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972).

A motion for summary judgment premised upon the ground that there is no genuine issue as to any material fact, GCR 1963, 117.2(3), requires the trial court to review the entire record to determine whether the non-moving party has discovered facts to support the claim or defense. The trial court is obligated to look beyond the pleadings and consider affidavits, depositions, and interrogatories. Based upon the entire record, the trial court must give the benefit of any reasonable doubt to the opposing party in determining whether there is a genuine issue as to a material fact. Rizzo v. Kretschmer, 389 Mich. 363, 371-372, 207 N.W.2d 316 (1973). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Partrich v. Muscat, 84 Mich.App. 724, 270 N.W.2d 506 (1978); Fry v. Ionia Sentinel-Standard, 101 Mich.App. 725, 300 N.W.2d 687 (1980).

In this case, because both parties relied on matters outside the pleadings to argue the motion, we construe this motion as one...