McClure v. H.K. Porter Co., Inc.

• Decision Date: 15 March 1989
• Docket Number: Docket No. 104590
• Citation: 174 Mich.App. 499,436 N.W.2d 677
• Parties: , Prod.Liab.Rep. (CCH) P 12,079 Frederick A. McCLURE and Irene F. McClure, individually and as Next Friend for Jeidi McClure, Christopher McClure, Levi McClure and Brandon McClure, their minor children, Plaintiffs-Appellants, v. H.K. PORTER COMPANY, INC., a Delaware corporation, Swindell-Rust, Division of Rust International Corporation, a Delaware corporation, Lectro-Melt Corporation, a foreign corporation, Pennsylvania Engineering Corporation, a foreign corporation, Kent Electric Company, a Michigan corporation, Poole Electric, Inc., a Michigan corporation, and Napoleon Township, jointly and severally, Defendants and Westinghouse Electric Corporation, Defendant-Appellee. LECTROMELT CORPORATION and Pennsylvania Engineering Corporation, et al., Third- Party Plaintiffs, v. QUANEX CORPORATION, Third-Party Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 677

436 N.W.2d 677

174 Mich.App. 499, Prod.Liab.Rep. (CCH) P 12,079

Frederick A. McCLURE and Irene F. McClure, individually and

as Next Friend for Jeidi McClure, Christopher

McClure, Levi McClure and Brandon

McClure, their minor children,Plaintiffs-Appellants, v.H.K. PORTER COMPANY, INC., a Delaware corporation,

Swindell-Rust, Division of Rust International Corporation, a

Delaware corporation, Lectro-Melt Corporation, a foreign

corporation, Pennsylvania Engineering Corporation, a foreign

corporation, Kent Electric Company, a Michigan corporation,

Poole Electric, Inc., a Michigan corporation, and Napoleon

Township, jointly and severally, Defendants

and

Westinghouse Electric Corporation, Defendant-Appellee.

LECTROMELT CORPORATION and Pennsylvania Engineering

Corporation, et al., Third- Party Plaintiffs, v.QUANEX CORPORATION, Third-Party Defendant.

Docket No. 104590.

Court of Appeals of Michigan.

Submitted June 20, 1988.

Decided Nov. 15, 1988.

Released for Publication March 15, 1989.

Hooper, Hathaway, Price, Beuche & Wallace by Bruce T. Wallace and Mark R. Daane, Ann Arbor, for plaintiffs.

Ogne, Alberts & Stuart, P.C. by Wayne L. Ogne, Bryan Cermak and Robert F. Whitmer, Troy, for Westinghouse Elec. Corp.

Before WAHLS, P.J., and HOOD and KAUFMAN, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order by Jackson Circuit JudgeRussell E. Noble granting defendantWestinghouse Electric Corporation's motion for summary disposition under MCR 2.604 and 2.116(C)(10).We affirm.

The following facts are not in dispute here.PlaintiffFrederick McClure was an electric maintenance worker at MacSteel Division of Quanex Corporation, a steel manufacturer.The MacSteel plant used electrical energy to generate extreme heat to process steel from iron ore.Electrical energy was directed through furnace lines into two electric arc furnaces, which were used to melt the ore.The flow of electricity was channeled through various switching stations and oil circuit breakers.Plaintiff suffered extensive injuries when electricity arced from a furnace line to his body as he attempted to conduct repairs in an electrical arc furnace vault in a shed which was located in an outdoor electrical substation.

Plaintiffs filed suit against MacSteel and Quanex in 1982 and added Westinghouse as a partydefendant in 1983.Plaintiff claimed that Westinghouse manufactured, serviced and installed the trip coil of the oil circuit breaker which had allegedly burned out and caused Frederick McClure's injuries.

On August 12, 1987, Westinghouse moved for summary disposition under MCR 2.116(C)(10).Following hearings on the motion on August 28, 1987, and October 9, 1987, Judge Noble granted the motion and dismissed plaintiffs' case against Westinghouse with prejudice.

Plaintiffs now claim on appeal that the trial court erred in granting summary disposition to Westinghouse.Plaintiffs contend they raised issues of material fact in that (1) Westinghouse had supplied controls for the oil circuit breaker and (2)plaintiffs' experts had determined Westinghouse to be negligent and its negligence to be the proximate cause of Frederick McClure's injury.

To prevail against Westinghouse in their claim, plaintiffs needed to prove a defect attributable to Westinghouse and a causal connection between that defect and the injury.Prentis v. Yale Mfg. Co., 421 Mich. 670, 682, 365 N.W.2d 176(1984);Holdsworth v. Nash Mfg., Inc., 161 Mich.App. 139, 146, 409 N.W.2d 764(1987).To prevail against Westinghouse's motion for summary disposition, plaintiffs were required to demonstrate, through affidavits, deposition testimony or any other documentary evidence, some facts showing there was a genuine issue for trial.MCR 2.116(G)(4).Fulton v. Pontiac General Hospital, 160 Mich.App. 728, 735, 408 N.W.2d 536(1987).Mere allegations are not sufficient.Metropolitan Life Ins. Co. v. Reist, 167 Mich.App. 112, 118, 421 N.W.2d 592(1988);Ransburg v. Wayne Co., 170 Mich.App. 358, 427 N.W.2d 906(1988).

We believe that the evidence presented by plaintiffs amounted to mere allegations.Westinghouse manufactured, serviced and installed a trip coil of the oil circuit breaker.However, this was in 1974.Third-party defendantQuanex Corporation admitted in its answer to Westinghouse's interrogatories that ITE corporation manufactured, installed and serviced the trip coil of the oil circuit breaker which was in place on the day Frederick McClure was injured.This admission was in response to plaintiffs' expert Kusko's testimony that the injury occurred because of the defective oil circuit breaker.Experts Carey and Reese, deposed by plaintiffs, failed to implicate defendant Westinghouse.They testified that Westinghouse had no responsibility in plaintiff's injuries.Expert witness Barnett testified that even though the shed containing the controls had the Westinghouse logo on it, Westinghouse had no responsibility for plaintiff's injuries.

We find there was inadequate evidence presented by plaintiffs as required by MCR 2.116(G)(3) and (4) to substantiate Westinghouse's liability for Frederick McClure's injuries.S...