Pippen v. Denison, Division of Abex Corp.

Decision Date26 January 1976
Docket NumberDocket No. 19817
Citation66 Mich.App. 664,239 N.W.2d 704
PartiesJohn PIPPEN and Evelyn Pippen, Plaintiffs-Appellees, v. DENISON, DIVISION OF ABEX CORPORATION, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Davidson, Gotshall, Kohl, Nelson, Secrest, Wardle & Lynch, by Konrad D. Kohl, Detroit, for defendant-appellant.

Lowry A. Rains, Detroit, for plaintiffs-appellees; A. Robert Zeff, Detroit, of counsel.

Before J. H. GILLIS, P.J., and BRONSON and T. M. BURNS, JJ.


On October 25, 1970, plaintiff John Pippen was injured while operating a hydraulic power press for Atlantic Die Casting Company. He brought suit against the manufacturer of the press, Denison Division of Abex Corporation, alleging breach of warranty in the design and manufacture of the press. He also claimed negligence in the design of the press and in the failure to warn the user of the press of potential dangers. John Pippen's wife, Evelyn, sued for loss of consortium. The jury returned a verdict in favor of John and Evelyn Pippen in the amounts of $1,250,000 and $500,000, respectively. The trial judge found the verdict to be excessive, but denied a motion for a new trial on condition that the plaintiffs each remit part of the verdict. Plaintiffs agreed, and judgment was entered for $625,000 and $100,000, respectively.

The press in question was used to trim excess metal from die castings, and had been sold to Atlantic by Denison in October of 1966. The press was equipped with dual 'palm buttons' as a safety device. These buttons are located on each side of the machine, to keep the operator's hands out of the dangerous area of the press. Both buttons must be pressed before the 'ram' comes down, cuts the metal from the castings, and returns to its original position. The center piece of casting remains to be removed by hand.

In theory, the press does not cycle again until both palm buttons are released and pressed down again, thus protecting the operator's hands. On the night in question, however, as plaintiff reached in to remove the casting, the press repeated its cycle without plaintiff having pressed the palm buttons. The ram caught his arm and crushed it. The doctors treating his injuries were required to amputate his arm above the elbow. The press again 'repeat cycled' after Mr. Pippen was injured.

At trial, plaintiffs presented no direct evidence to identify a particular part of the press that failed, causing the press to 'repeat cycle'. However, plaintiff's expert witness testified that the only possible area of failure was in the control mechanism, sealed in the control box of the press. Indicating that this press was 'relatively new', since a press normally operates for 30 to 40 years, the expert felt that a sticking relay valve or malfunctioning solenoid were the most likely causes of the press 'double tripping'. The expert found the press design to be defective because the electrical circuitry of the control box would not prevent the press from cycling upon failure of either of those two parts. The plaintiff's expert also testified that the press was defective, in that there were insufficient safety features designed into the press which were available at the time, I.e., a safety block.

Defendant did not contest the fact that the press 'repeat cycled'. Instead, Denison's expert witness, after an inspection of the press several days after the accident, put forth two alternative theories as to the cause of the malfunction. First, metal fragments had entered the control box because the control box had been opened and improperly resealed. Second, Denison alleged that a substitute palm button had been opened and not properly resealed. The trial judge allowed that testimony into evidence only upon the condition that defendant show that these conditions existed on the date of the accident, and were not caused by the employer's investigation of the accident. Defendant never introduced any evidence showing those facts.

Defendant raises numerous issues upon appeal, but we find only two merit discussion: (1) whether the trial judge improperly instructed the jury on an implied warranty cause of action because plaintiff failed to show a 'defect' existed in the press; and (2) whether the amount of damages awarded both before and after Remittitur were excessive.


In order to recover from Denison for breach of an implied warranty, the plaintiff must allege and prove that (a) the press in question was transferred from the manufacturer's possession while in a 'defective' state and (b) as a result of being 'defective', the product caused personal injury or property damage, Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 133 N.W.2d 129 (1965). The proof that a product is defective can be drawn from circumstantial evidence without a showing of a specific demonstrable defect, Bronson v. J. L. Hudson Co., 376 Mich. 98, 135 N.W.2d 388 (1965).

Defendant expresses agreement with those legal statements, but contends that plaintiff's theory that the press malfunctioned as a result of a 'defect' was 'mere conjecture', citing Kaminski v. Grand Trunk W.R. Co., 347 Mich. 417, 79 N.W.2d 899 (1956). Defendant's theory that the press was improperly maintained and modified by plaintiff's employer is said to be equally as probable as plaintiff's theory as to the cause of the malfunction. Defendant argues that, under the Kaminski rule on circumstantial evidence, there is insufficient proof of causation to go to the jury. On its face, that argument is persuasive, yet we find that it does not comport with recent Michigan products liability law.

The Kaminski case does set forth important rules governing the use of circumstantial evidence. There, plaintiff was injured by a metal cart while he was working at a General Motors plant near certain railroad tracks. Plaintiff sued Grand Trunk, contending that a train owned by that company had negligently knocked the cart into plaintiff. It was dark at the time of the accident, so there was no direct evidence that the train had hit the cart. Grand Trunk claimed that plaintiff had proven only that the accident occurred, and that non-negligent explanations of the cause of the accident were equally as probable as the plaintiff's theory. Defendant, then, argued on appeal that its motion for a directed verdict should have been granted.

The Kaminski Court reiterated the 'conjecture' rule as being applicable to the case:

"As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be 2 or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any 1 of them, they remain conjectures only." 347 Mich. at 422, 79 N.W.2d at 901.

Yet the Court went on to state that if proven facts support plaintiff's theory, viewing them most favorably to plaintiff, the case can go to the jury. Looking to the particular facts, the Supreme Court found defendant's theories to be of 'comparative improbability' in relation to the inference of negligence plaintiff wished to draw from the proven facts. The denial of a directed verdict was upheld.

The 'conjecture rule' is quite narrow in its operation. As stated in the early case of Schoepper v. Hancock Chemical Co., 113 Mich. 582, 586, 71 N.W. 1081, 1083 (1897):

'It is true that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. Robinson v. Charles Wright & Co., 94 Mich. 283 (53 N.W. 938 (1892)); Redmond v. Lumber Co., 96 Mich. 545 (55 N.W. 1004 (1893)). But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other.'

Illustrative of the judicial philosophy of searching for factual support for plaintiff's theory is the case of Schedlbauer v. Chris-Craft Corp., 381 Mich. 217, 160 N.W.2d 889 (1968). Plaintiff's pleasure boat was destroyed by a fire resulting from an engine room explosion. Plaintiff sued defendant for failing to warn boat owners that a diaphragm in the fuel pump could wear out and leak gas into the hold. The engine was not recovered. The Supreme Court held that plaintiff's testimony that the engine began to run 'rough' shortly before the explosion and that it continued to run after the explosion made plaintiff's theory more likely than defendant's.

In reviewing the Michigan cases in this area, we find that proof of certain facts has consistently been held sufficient to prevent a plaintiff's theory from being characterized as 'mere conjecture'. Proof that a malfunctioning product is relatively new is frequently found to support an inference that a 'defect' in the product caused that malfunction. See Snider v. Bob Thibodeau Ford, Inc., 42 Mich.App. 708, 202 N.W.2d 727 (1972) (Ford truck six months old); Garmo v. General Motors Corp., 45 Mich.App. 703, 207 N.W.2d 146 (1973) (Pontiac automobile four and one-half months old, driven about 8,000 miles); Bronson v. J. L. Hudson Co., 376 Mich. 98, 135 N.W.2d 388 (1965) (clothing claimed to contain chemical irritants bought one day prior to injury); Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975) (Chevrolet automobile five weeks old). A history of repair problems, traceable back to the time of purchase, associated with the malfunctioning part of the product has also been considered important. See, Snider, supra (brake problems soon after purchase continued for four months, until the accident); Garmo v. General Motors Corp., supra (car returned for brake problems several times soon after purchase).

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