Jorae v. Clinton Crop Service

Citation465 F. Supp. 952
Decision Date23 January 1979
Docket NumberCiv. A. No. 7-72165.
PartiesGeorge JORAE and Frances Jorae, Plaintiffs, v. The CLINTON CROP SERVICE, a Division of Smith-Douglas, a Division of Borden Chemical, Division of Borden, Inc., a Foreign Corporation, and John Blue Company, a Division of Subscription Television, Inc., a Foreign Corporation, Defendants.
CourtU.S. District Court — Western District of Michigan

Gregory W. Stine, Detroit, Mich., Morton Leitson, Flint, Mich., for plaintiffs.

Thomas M. Jinks, Troy, Mich., for the Clinton Crop Service.

Wayne D. Gardner, Farmington Hills, Mich., for John Blue Co.


JOINER, District Judge.

This is a products liability case. Plaintiff, George Jorae, is a farmer. Plaintiff, Frances Jorae, is his wife. Defendant and cross-plaintiff, Clinton Crop Service, is a corporation engaged in the business of renting agricultural sprayers to farmers in and around St. Johns, Michigan. Defendant, John Blue Company, is the designer, manufacturer, and seller of an agricultural sprayer which Clinton Crop Service leased to George Jorae. By their motions for entry of judgment on a special verdict returned in this case, the parties have raised the issues of: (1) whether Pub.Act No. 495, (Dec. 11, 1978) ("Act 495"), which amends M.C.L.A. § 600.5805 and adds M.C.L.A. §§ 600.2945-2949, applies to this case and, if so, (2) how Act 495 applies to this case. It is this court's holding that Act 495 does apply to this case and that judgment should be entered in accordance with the terms of the Act as interpreted in this memorandum opinion and order.

On or about June 21, 1975, the plaintiff rented the agricultural sprayer in question from Clinton Crop Service for the purpose of spraying his cornfield. The next day, while in the course of climbing on the sprayer to load it, plaintiff slipped and fell astraddle a narrow bar projecting from the sprayer. As a result of this fall plaintiff suffered a serious injury to his reproductive organs.

On September 8, 1977, plaintiffs filed a lawsuit seeking damages against defendants for negligence in the design of the sprayer and in failure to warn and inform and for breach of their respective implied warranties of fitness. Clinton Crop Service subsequently filed a counterclaim against John Blue for indemnity on each of plaintiffs' theories of recovery which has been treated throughout as an additional alternative claim for contribution. The parties began trial in the case on December 11, 1978. During the course of preparing jury instructions, the court and the parties became aware of the enactment and signing into law of Act 495. In light of the potentially significant effect of Act 495 on the law to be applied in the case, eight special interrogatories were submitted to the jury after they had been given comprehensive instructions on all the other applicable law, in lieu of requesting a general verdict. These interrogatories were designed to elicit all the findings necessary to enter judgment once the significance, if any, of the new legislation had been determined.

Until the enactment of Act 495, products injuries were litigated on several theories set out in several counts of the complaint. Usually the injured person complained in tort alleging that the manufacturer and sometimes the seller were negligent in some respect. The negligence could be in the design of the product, in its manufacture or in some act on the part of the manufacturer or seller resulting in a failure to give adequate warning or instruction. Sometimes either the seller or the manufacturer made express commitments as to performance of the product that were breached and the breach of these express commitments were claimed to be a basis of liability, presumably on a contract theory. Because products were received as a part of a sale, the implied warranties of the Sales article of the UCC were often invoked as a theory of liability. A modified version of the seller's warranty of fitness for purpose and of merchantability has been for many years a basis of liability in products cases. Liability under such theories is a type of absolute liability imposed by law and not by agreement and thus in theory appears to be more like a tort.

Act 495 appears to be an attempt on the part of the Michigan legislature to provide a comprehensive set of rules for the trial of cases involving injuries caused by products that are in some way inadequate or defective.1 It appears that the statute is an attempt to cut across the three theories on which cases have been tried until now and to provide a common defense to all theories. The first substantive section of the Act, § 2945, defines "products liability action" to mean "an action based on any legal or equitable theory of liability brought for or on account of death or injury to person or property caused by" various acts done in connection with the conception, production, and marketing of products. (emphasis added). This definition encompasses all possible theories of recovery in products liability cases, including negligence, breach of express and implied warranty and strict liability to the extent this may be recognized. The Act unifies them into a single theory of recovery called "products liability" for purposes of the application of the balance of the Act.

The following three sections of the Act, §§ 2946, 2947, and 2948, form a functional unit balancing the admission and exclusion of certain types of evidence in products liability actions. The fifth substantive section of the Act, § 2949, establishes a distinctly new legal standard for assessing the affect an injured party's own negligence shall have on his or her right to recovery in a products liability case. Rather than being a total bar to recovery § 2949 provides that in all products liability actions the damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to that plaintiff. Section 2949 also provides, in a second subsection, that costs and reasonable attorney's fees may be awarded to the prevailing party in a products liability action in the event that the court determines a claim or defense to be frivolous.

Finally, § 5805 of the Act amends M.C. L.A. § 600.5805 to specifically provide for a three year statute of limitations for the products liability action. This period is established subject to the proviso that the plaintiff shall be required to prove a prima facie case without the benefit of any presumption in the case of a product which has been in use for not less than ten years.

It is evident from the range of perspectives, detail and organization of this Act that the legislature intended to do more than simply alter the legal significance of contributory negligence or improve upon a few random rules of evidence. Act 495 is an indication of the legislature's awareness that a functionally integrated area of law has developed concerning injuries caused by defective products through the use of diverse legal theories that permit different proofs as to both claims and defenses which could, in turn, lead to different results. The Act is the legislature's attempt to simplify and unify this area of law by formally acknowledging and organizing it and thereby freeing it, to a certain degree, from the strained analogies to negligence and contract.

The Act states a legislative directive to present a products liability case in one count, alleging the defendants' wrongdoing by way of negligence or breach of warranty express or implied, permits the defendant to use the negligent acts of the plaintiff as a partial defense, and provides standards for the admission of proof applicable to all claims and defenses.

Applicability of Act 495

The first issue presented by the parties is whether Act 495 applies to this case. The Act's effective date is December 13, 1978. This trial began December 11, 1978. The case was submitted to the jury on December 15, 1978, and the jury returned with its answers on December 18, 1978.2

The Michigan Supreme Court has stated in a case involving foreclosures of mechanics' liens arising out of construction work that:

Remedial statutes, or statutes related to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of a remedy or confirmation of rights already existing, do not come within the legal conception of retrospective law, or the general rule against retrospective operation of statutes. To the contrary, the statutes pertaining to procedure are generally held to operate retrospectively, where the statute or amendment does not contain language clearly showing a contrary intention.

Hansen-Snyder Co. v. General Motors, 371 Mich. 480, 484-85, 124 N.W.2d 286, 288 (1963). The Court held that a statutory amendment, extending the period for serving notice of intent to claim lien from 60 days to 90 days from the date of first furnishing labor and material, was a procedural amendment encompassed by the rule and that it was, therefore, applicable to plaintiffs' claim.

The test in Hansen-Snyder, used to determine if a statute should be applied to existing causes of action, is whether the statute is procedural or remedial. A statute is procedural or remedial if it relates to remedies or modes of procedure which do not create new or take away vested rights but only acts in furtherance of a remedy or confirmation of rights already existing. If the statute is determined to be procedural, it may be applied to existing causes of action unless the statute contains language clearly showing a contrary intention.

Even before the Hansen-Snyder case was decided, the Court had applied the elements of the rule stated in that case to statutory amendments of a remedial nature. In Rookledge v. Garwood, 340 Mich. 444, 65 N.W.2d 785 (1954), the Court held that a plaintiff in an employment-related personal injury action was not required to elect between workmen's...

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    ...view that comparative negligence of injured spouse reduces other spouse's loss of consortium award). Accord Jorae v. Clinton Crop Service, 465 F.Supp. 952, 957 (E.D.Mich.1979) (applying Michigan law); Ferguson v. Ben M. Hogan Co., 307 F.Supp. 658, 665 (W.D.Ark.1969) (applying Arkansas law);......
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    ...enacting M.C.L. Sec. 600.2949; M.S.A. Sec. 27A.2949 and thereby create a "single theory of recovery" as found by Jorae v. Clinton Crop Service, 465 F.Supp. 952 (E.D.Mich., 1979). In other words, he argues there is no warrant to diminish the verdict by the percentage of plaintiff's comparati......
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