Moning v. Alfono, No. 55669

CourtSupreme Court of Michigan
Writing for the CourtLEVIN; KAVANAGH, C. J., and WILLIAMS; FITZGERALD; COLEMAN
Citation400 Mich. 425,254 N.W.2d 759
Docket NumberNo. 55669
Decision Date15 June 1977
PartiesRoyal MONING, by his next friend, Ronald Moning, and Ronald Moning, Individually, Plaintiffs-Appellants, v. Joseph ALFONO, a minor, Yvonne Alfono, and Vincent Alfono, and Georgette Campbell, d/b/a Campbell Discount Jewelry, King Tobacco and Grocery Co., a Michigan Corporation, and Chemtoy Corporation (formerly Chemical Sundries, Inc.), a Foreign Corporation, jointly and severally, Defendants-Appellees. 400 Mich. 425, 254 N.W.2d 759

Page 759

254 N.W.2d 759
Royal MONING, by his next friend, Ronald Moning, and Ronald
Moning, Individually, Plaintiffs-Appellants,
v.
Joseph ALFONO, a minor, Yvonne Alfono, and Vincent Alfono,
and Georgette Campbell, d/b/a Campbell Discount Jewelry,
King Tobacco and Grocery Co., a Michigan Corporation, and
Chemtoy Corporation (formerly Chemical Sundries, Inc.), a
Foreign Corporation, jointly and severally,
Defendants-Appellees.
No. 55669.
400 Mich. 425, 254 N.W.2d 759
Supreme Court of Michigan.
June 15, 1977.

Page 761

[400 MICH 431] Milan & Miller, Zeff & Zeff, Detroit, for plaintiffs and appellants; Edward Grebs, Detroit, of counsel.

Page 762

Robert E. Fox, Detroit, for defendant-appellee, cross-appellant and cross-appellee Chemtoy Corp., formerly Chemical Sundries Co., appearing specially.

[400 MICH 432] Richard B. Kramer, Southfield, for defendant-appellee, cross-appellant and cross-appellee King Tobacco.

Garan, Lucow, Miller, Lehman, Seward & Copper, by Albert A. Miller, Detroit, for cross-appellees Joseph Alfono, a minor, Yvonne Alfono and Vincent Alfono.

LEVIN, Justice.

Royal Moning, when he was 12 years old, lost the sight of an eye which was struck by a pellet fired from a slingshot being used by his 11 year old playmate, Joseph Alfono.

There was evidence that Alfono purchased two 10cents slingshots from defendant Campbell Discount Jewelry and had given one to Moning, and that the slingshots had been manufactured by defendant Chemtoy Corporation and distributed by defendant King Tobacco and Grocery Company.

Moning claims that it is negligence to market slingshots directly to children, and that the manufacturer, wholesaler and retailer are subject to liability.

The claim against the Alfonos was settled. Upon completion of Moning's proofs, the trial judge directed a verdict for the remaining defendants. The Court of Appeals affirmed.

We remand for a new trial because a manufacturer, wholesaler and retailer of a manufactured product owe a legal obligation of due care to a bystander affected by use of the product, and whether defendants in violation of that obligation created an unreasonable risk of harm in marketing slingshots directly to children is for a jury to decide, reasonable persons being of different minds.

My colleague declares that there is no legal duty to refrain from manufacturing slingshots for and marketing them directly to children.

It obscures the separate issues in a negligence [400 MICH 433] case (duty, proximate cause and general and specific standard of care) to combine and state them together in terms of whether there is a duty to refrain from particular conduct.

It is now established that the manufacturer and wholesaler of a product, by marketing it, owe a legal duty to those affected by its use. The duty of a retailer to a customer with whom he directly deals was well established long before the manufacturer and wholesaler were held to be so obligated. The scope of their duty now also extends to a bystander. All the defendants were, therefore, under an "obligation for the safety" 1 of Moning; they owed him a duty to avoid conduct that was negligent.

Whether it would be a violation of that obligation to market slingshots directly to children is not a question of duty, but of the specific standard of care: the reasonableness of the risk of harm thereby created.

Negligence is conduct involving an unreasonable risk of harm.

Slingshots pose a risk of harm. In manufacturing and marketing slingshots the defendants necessarily created such a risk.

The meritorious issues are whether the risk so created was unreasonable because the slingshots were marketed directly to children, and whether this should be decided by the court or by the jury.

The reasonableness of the risk of harm, whether analyzed or expressed in terms of duty, proximate cause or the specific standard of care, and whether regarded as one of law or fact or for the court or the jury to decide, turns on how the utility of the [400 MICH 434] defendants' conduct is viewed in relation to the magnitude of the risk.

If a court is of the opinion that marketing slingshots directly to children is of such utility that it should be fully protected, the court in effect determines as a matter of law that the risk of harm so created is not unreasonable and, therefore, such conduct is not negligent.

Page 763

The resolution of the balance between the utility of children having ready-market access to slingshots and the risk of harm thereby created is an aspect of the determination of the reasonableness of that risk and of the defendants' conduct, and should be decided by a jury:

Reasonable persons can differ on the balance of utility and risk, and whether marketing slingshots directly to children creates an unreasonable risk of harm;

The interest of children in ready-market access to slingshots is not so clearly entitled to absolute protection in comparison with the interest of persons who face the risk thereby created as to warrant the Court in declaring, as a rule of common law, that the risk will be deemed to be reasonable.

The statement that "we are being asked to perform a legislative task" because a holding for Moning "would in effect be making a value judgment and saying * * * (that slingshots) should not be manufactured or marketed " (emphasis supplied) to children assumes that allowing juries to decide the reasonableness of the risk of harm created by marketing slingshots directly to children will so burden the manufacture and marketing of slingshots that all manufacturing and marketing would cease, rather than merely affect the manner and cost of marketing slingshots, and does not take [400 MICH 435] into account that however the Court decides the case it in effect makes a value judgment:

Affirming a directed verdict for the defendants in effect expresses a value judgment that the interest of the child in ready-market access to slingshots is of such societal importance that as a matter of law it takes precedence over the interest in protecting persons exposed to the risk of harm so created, or that all reasonable persons would agree that the risk so created is not unreasonable.

Reversing the directed verdict and holding that the issue should be decided by a jury is not an expression of a value judgment that slingshots should not be manufactured and marketed, but rather expresses a value judgment that all reasonable persons do not agree concerning the reasonableness of the risk so created and that the interest of the child in ready-market access is not of such overriding importance as to be entitled to absolute protection as a matter of law, and therefore a jury, applying the community's judgment of how reasonable persons would conduct themselves, should make the ultimate value judgment of the risks and the societal importance of the interests involved in marketing slingshots directly to children.

However the Court decides this case, it necessarily makes a choice, even if the Legislature may later make a different choice.

If the issue is left to juries to decide, different juries will, indeed, reach different results, sometimes in cases appearing to be factually indistinguishable. The variant results may be more perceptible in this kind of case than in one where it may appear there are more variables. The preference for jury resolution of the issue of negligence is not, however, simply an expedient reflecting the difficulty of stating a rule that will readily resolve [400 MICH 436] all cases; rather, it is rooted in the belief that the jury's judgment of what is reasonable under the circumstances of a particular case is more likely than the judicial judgment to represent the community's judgment of how reasonable persons would conduct themselves. 2

If the experience should be that juries invariably reach one result, that may suggest the specific standard of care upon which "all" reasonable persons would

Page 764

agree. 3 Until the community judgment is made so to appear, the principle that doubtful questions regarding the application of the standard of care should be decided by reference to the community judgment requires jury submission of the question so in doubt.

The law of negligence was created by common law judges and, therefore, it is unavoidably the Court's responsibility to continue to develop or limit the development of that body of law absent legislative directive. The Legislature has not approved or disapproved the manufacture of slingshots and their marketing directly to children; the Court perforce must decide what the common law rule shall be.

I

Duty and Proximate Cause

While we all agree that the duty question is [400 MICH 437] solely for the court to decide, 4 the specific standard of care is not part of that question.

The elements of an action for negligence are (i) duty, (ii) general standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage.

" Duty" comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct; it does not include where there is an obligation the nature of the obligation: the general standard of care and the specific standard of care.

Dean Prosser observed:

"It is quite possible, and not at all uncommon, to deal with most of the questions which arise in a negligence case in terms of 'duty.' Thus the standard of conduct required of the individual may be expressed by saying that the driver of an automobile approaching an intersection is under a duty to moderate his speed, to keep a proper lookout, or to blow his horn, but that he is not under a duty to take precautions against the unexpected explosion of a manhole cover in the street. But the problems of 'duty' are sufficiently complex without subdividing it in this manner to cover an endless series of details of conduct. It is better to reserve 'duty' for the problem of the relation between individuals which...

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427 practice notes
  • Merrill v. Navegar, Inc., No. S083466.
    • United States
    • United States State Supreme Court (California)
    • August 6, 2001
    ...with resulting liability for breach." (Rowland, supra, 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561; see Moning v. Alfono (1977) 400 Mich. 425, 254 N.W.2d 759, 763 [reversing directed verdict for the manufacturer in negligent marketing action by a child injured through a playmate's us......
  • Hamilton v. Accu-Tek, No. CV-95-0049 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 3, 1999
    ...in a protective relationship with those foreseeably and potentially put in harm's way by their products. See, e.g., Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759, 765 (1977) ("It is well established that placing a product on the market creates the requisite relationship between a manufact......
  • Soto v. Bushmaster Firearms Int'l, LLC, SC 19832
    • United States
    • Supreme Court of Connecticut
    • March 19, 2019
    ...plead sufficient facts to establish causation), modified on other grounds, 1998 WL 142359 (N.D. Ill. March 20, 1998); Moning v. Alfono, 400 Mich. 425, 432, 254 N.W.2d 759 (1977) (question of whether marketing slingshots directly to children creates unreasonable risk of harm was for jury to ......
  • Kelley v. R.G. Industries, Inc., No. 20
    • United States
    • Court of Appeals of Maryland
    • September 1, 1983
    ...refuses to make such distinction. An analogy may be drawn, however, to the decision of the Supreme Court of Michigan in Moning v. Alfano, 400 Mich. 425, 254 N.W.2d 759 (1977). In Moning, an eleven year old child was seriously injured by a projectile fired from a slingshot by a playmate. The......
  • Request a trial to view additional results
427 cases
  • Merrill v. Navegar, Inc., No. S083466.
    • United States
    • United States State Supreme Court (California)
    • August 6, 2001
    ...with resulting liability for breach." (Rowland, supra, 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561; see Moning v. Alfono (1977) 400 Mich. 425, 254 N.W.2d 759, 763 [reversing directed verdict for the manufacturer in negligent marketing action by a child injured through a playmate's us......
  • Hamilton v. Accu-Tek, No. CV-95-0049 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 3, 1999
    ...in a protective relationship with those foreseeably and potentially put in harm's way by their products. See, e.g., Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759, 765 (1977) ("It is well established that placing a product on the market creates the requisite relationship between a manufact......
  • Soto v. Bushmaster Firearms Int'l, LLC, SC 19832
    • United States
    • Supreme Court of Connecticut
    • March 19, 2019
    ...plead sufficient facts to establish causation), modified on other grounds, 1998 WL 142359 (N.D. Ill. March 20, 1998); Moning v. Alfono, 400 Mich. 425, 432, 254 N.W.2d 759 (1977) (question of whether marketing slingshots directly to children creates unreasonable risk of harm was for jury to ......
  • Kelley v. R.G. Industries, Inc., No. 20
    • United States
    • Court of Appeals of Maryland
    • September 1, 1983
    ...refuses to make such distinction. An analogy may be drawn, however, to the decision of the Supreme Court of Michigan in Moning v. Alfano, 400 Mich. 425, 254 N.W.2d 759 (1977). In Moning, an eleven year old child was seriously injured by a projectile fired from a slingshot by a playmate. The......
  • Request a trial to view additional results

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