Olkowski v. Aetna Cas. & Sur. Co.

• Decision Date: 30 May 1974
• Docket Number: Docket No. 16824,No. 1,1
• Citation: 53 Mich.App. 497,220 N.W.2d 97
• Parties: Mary OLKOWSKI, Special Administratrix of the Estate of Chester Olkowski, Decedent, Plaintiff-Appellee, v. AETNA CASUALTY AND SURETY CO., a foreign corporation, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 97

220 N.W.2d 97

53 Mich.App. 497

Mary OLKOWSKI, Special Administratrix of the Estate of Chester Olkowski, Decedent, Plaintiff-Appellee, v. AETNA CASUALTY AND SURETY CO., a foreign corporation Defendant-Appellant.

Docket No. 16824.

Court of Appeals of Michigan, Division No. 1.

May 30, 1974.

Released for Publication July 24, 1974.

Buell Doelle, Vandeveer, Doelle, Garzia, Tonkin & Kerr, Frederick D. Steinhardt, Goldman, Mason & Steinhardt, Detroit, for defendant-appellant.

Martin E. Stein, Detroit, for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and McGREGOR and T. M. BURNS, JJ.

T. M. BURNS, Judge.

On October 5, 1967, Chester Olkowski worked for Wyandotte Corporation (hereinafter referred to as Wyandotte) in the packaging building of the work complex. While engaged in duties as a laborer, Olkowski suffered severe injuries in an unwitnessed accident ultimately resulting in his death. It was undisputed that while stacking pallets of metal drums four pallets high, one of the drums on the top pallet struck a protrusion on the ceiling causing the drum to topple backwards, striking Olkowski in the head and severing his spinal cord.

Olkowski's widow, plaintiff herein, applied for and received workmen's compensation benefits. Subsequently, she filed this suit against defendant Aetna Casualty & Surety Company (hereinafter referred to as Aetna), Wyandotte's workmen's compensation insurer, as widow and special administratrix of the estate of Chester Olkowski. She alleged that Aetna had undertaken to make safety inspections of Wyandotte's plant and had failed to use due care or discover the unsafe working conditions that had caused Olkowski's death.

After a full jury trial on the merits, the jury rendered a verdict in plaintiff's favor in the amount of $404,000, and judgment was entered upon the verdict. Defendant Aetna moved for judgment notwithstanding the verdict, and the motion was subsequently denied by the trial court.

Defendant first contends that the trial court committed reversible error in its instructions on duty.

Defense counsel submitted a proposed instruction on duty to the trial court. In its charge to the jury, the trial court adopted almost verbatim the defendant's request to charge. All of the essential elements of what defendant in its brief terms 'duty' were submitted to the jury. Furthermore, defense counsel made no objection to the trial court's charge on duty. Defendant's failure to object precludes the assignment of error. GCR 1963, 516.2.

Defendant next claims that the trial court's failure to instruct the jury on the issue of reliance on defendant's safety inspection by the plaintiff's decedent was reversible error.

Since defense counsel objected at the close of the charge to the jury and had previously requested that the trial court charge the jury on the issue of reliance, this issue has been properly preserved for appeal.

Not only was there no instruction upon reliance, but there was no testimony at trial that would indicate that plaintiff's decedent relied upon the inspections made by Aetna. Should we conclude that it was necessary for the plaintiff to show that the decedent did in fact rely on the inspection made by Aetna, then reversal would be required since the plaintiff would have failed in her proofs on this element and the trial court would have erred in not granting defendant's motion for a directed verdict or at least in not submitting this issue to the jury.

In support of its claim that it was entitled to a jury instruction on reliance, defendant cites Ray v. Transamerica Insurance Co., 46 Mich.App. 647, 208 N.W.2d 610 (1973). The Court, in Ray, supra, stated at pp. 656--657, 208 N.W.2d at p. 615:

'The panel is also in full agreement and does hold the rule in Michigan governing actions of the nature involved in this appeal to be that enunciated in 2 Restatement Torts, 2d, § 324A, p. 142, which provides:

"One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, If

"(a) his failure to exercise reasonable care increases the risk of harm, Or

"(b) he has undertaken to perform a duty owed by the other to the third person, Or

"(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.' (Emphasis supplied.)'

In Ray, as in the instant case, plaintiff's theory of recovery was that the defendant had undertaken to perform the employer's duty to the employee to provide a safe place to work.

The Ray Court went on to state, at p. 657, 208 N.W.2d at p. 615:

'It is important to note that the rule enunciated and as found in the Restatement provides for three alternative theories of recovery. Neither the rule nor the Restatement requires that a combination of, or all of the theories be proven to establish liability. The rule is stated in the disjunctive. Proof of either theory is a valid basis for recovery.' (Emphasis supplied.)

After making this statement, the Court in Ray, supra, using principles of masterservant law, concluded that while proof that defendant has undertaken to perform a duty owed by the employer to the third person may be a valid basis for recovery, in this type of situation reliance on that undertaking was a relevant consideration. The Court went on to hold that the defendant was entitled to a jury instruction on the issue of reliance.

Chief Judge Lesinski, in an opinion in which he concurred in part and dissented in part, argued that the issue of reliance is not properly a jury question where plaintiff's theory of recovery is that defendant has undertaken to perform the employer's duty to provide a safe working environment. The Chief Judge also maintained that the master-servant doctrine is inapplicable to a third-party tort theory such as plaintiff's when he stated, at pp. 659--660, 208 N.W.2d at p. 616:

'On the issue of reliance, I find the position of the majority to be inconsistent. If the rule in Michigan is as we agree and state it to be, then clearly reliance by either the plaintiff or his employer is not a factor as to the theory of recovery under subparagraph (b) of the Restatement. 2 Restatement Torts, 2d, § 324A, p. 142.

'The majority on this issue would unduly increase the burden of the plaintiff's proofs because the inspections were performed for the employer of the plaintiff. The majority must of necessity invoke some of the principles involved in the master-servant doctrine to arrive at this position. This writer does not find them applicable because the Workmen's Compensation Act has abrogated the relationship in cases such as plaintiff's, who is in covered employment.'

Chief Judge Lesinski then went on to conclude that in his opinion the doctrine of reliance had been misapplied, since in an action against the defendant workmen's compensation carrier, the question is more appropriately one of contributory negligence rather than reliance.

We find the reasoning of Chief Judge Lesinski in his opinion in Ray, supra, to be more persuasive. We agree with his view that since the rule in Michigan governing actions of this nature is stated in the disjunctive, reliance by either the plaintiff's decedent or his employer is not a factor as to the theory of recovery under subparagraph (b) of the Restatement, Supra. Therefore, in the instant...