Prentis v. Yale Mfg. Co., Docket No. 50381

• Decision Date: 01 September 1982
• Docket Number: Docket No. 50381
• Citation: 116 Mich.App. 466,323 N.W.2d 444
• Parties: John PRENTIS and Helen Prentis, Plaintiffs-Appellants, v. YALE MANUFACTURING COMPANY, Defendant-Appellee. 116 Mich.App. 466, 323 N.W.2d 444
• Court: Court of Appeal of Michigan — District of US

Page 444

323 N.W.2d 444

John PRENTIS and Helen Prentis, Plaintiffs-Appellants, v. YALE MANUFACTURING COMPANY, Defendant-Appellee.

Docket No. 50381.

116 Mich.App. 466, 323 N.W.2d 444

Court of Appeals of Michigan.

Submitted March 3, 1982.

Decided May 20, 1982.

Released for Publication Sept. 1, 1982.

[116 MICHAPP 467] The Jaques Admirality Law Offices, P.C., Detroit, for plaintiffs-appellants.

Kerr, Russell & Weber by C. Kenneth Perry, Jr., Detroit, for defendant-appellee.

Before MAHER, P. J., and BEASLEY and MARUTIAK, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right from a jury verdict of no cause of action in a products liability suit brought to recover damages for injuries resulting from an accident involving an allegedly defective forklift manufactured by defendant.

Plaintiff brought suit alleging both negligence and breach of warranty against defendant Yale [116 MICHAPP 468] Manufacturing Company, the manufacturer of the forklift. The trial court refused to give plaintiffs' requested standard jury instruction on a breach of warranty theory of liability, SJI 25.01, 25.02, 25.21, and 25.23. This refusal was based on the court's conclusion that the products liability statute, M.C.L. Sec. 600.2945 et seq.; M.S.A. Sec. 27A.2945 et seq., had merged all former products liability theories or causes of action into a single unified "products liability theory." The jury was accordingly instructed only with respect to a negligence theory.

Although the products liability statute was enacted subsequent to the institution of the instant suit, this Court has held that the statute has retroactive as well as prospective effect. Tulkku v. Mackworth Rees Division of Avis Industries Inc. (On Remand), 101 Mich.App. 709, 301 N.W.2d 46 (1980), lv. den., 411 Mich. 897 (1981). We find, however, that the trial court's interpretation of the statute was erroneous.

Under the common law of products liability, prior to the enactment of the products liability statute, there was clearly a difference between the theories of implied warranty and negligence--both with respect to the elements to be proven and with respect to the available defenses. In Smith v. E. R. Squibb & Sons, Inc., 405 Mich. 79, 89, 273 N.W.2d 476 (1979), which was decided prior to the enactment of the statute, the Supreme Court observed:

"As noted by the Court below, it is also generally recognized 'that implied warranty and negligence are separate and distinct theories of recovery and that under the implied warranty theory it is not necessary to prove negligence.' 69 Mich. 375, 381 (citation omitted).

"The distinction between the elements of negligence and breach of implied warranty is that in the former [116 MICHAPP 469] plaintiff must prove that the defect was caused by the manufacturer's negligence, whereas under the warranty theory, plaintiff need only establish that the defect was attributable to the manufacturer, regardless of the amount of care utilized by the manufacturer."

See also Dooms v. Stewart Bolling & Co., 68 Mich.App. 5, 14, 241 N.W.2d 738 (1976), lv. den. 397 Mich. 862 (1976).

Although Sec. 2945 of the products liability statute, M.C.L. Sec. 600.2945; M.S.A. Sec. 27A.2945, defines "products liability action" as "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, nowhere does the Act provide that plaintiffs must proceed under a negligence theory. Section 2949 of the act, M.C.L. Sec. 600.2949; M.S.A. Sec. 27A.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. Although it can be argued that such language implies the abolition of the breach of warranty theory, since consideration of a plaintiff's negligence has been traditionally precluded in such an action, ¹ we are unwilling to assume from such an ambiguous directive that the Legislature intended such a drastic change in the common law. In order to infer from that provision, governing computation of damages, an intent to abrogate a long-established common law cause of [116 MICHAPP 470] action, we would have to ignore "the cardinal rule of statutory construction, that s...