Prosky v. National Acme Company

• Decision Date: 12 December 1975
• Docket Number: Civ. A. No. 4-72728.
• Citation: 404 F. Supp. 852
• Parties: Joseph PROSKY, Plaintiff, and Liberty Mutual Insurance Company, Added Party Plaintiff, v. The NATIONAL ACME COMPANY, a Cleveland, Ohio Corporation, Defendant and Third-Party Plaintiff, v. BRUCE'S BOWER ROLLING BEARING, a Division of the Federal Mogul Corp., Third-Party Defendant.
• Court: U.S. District Court — Western District of Michigan

404 F. Supp. 852

Joseph PROSKY, Plaintiff, and Liberty Mutual Insurance Company, Added Party Plaintiff, v. The NATIONAL ACME COMPANY, a Cleveland, Ohio Corporation, Defendant and Third-Party Plaintiff, v. BRUCE'S BOWER ROLLING BEARING, a Division of the Federal Mogul Corp., Third-Party Defendant.

Civ. A. No. 4-72728.

United States District Court, E. D. Michigan, S. D.

December 12, 1975.

Calvin M. Gonek, Detroit, Mich., for plaintiffs.

Joseph J. Bileti, Paul Joseph Schwab, Bileti & Valenti, Reginald S. Johnson, Johnson, Campbell & Moesta, P. C., Detroit, Mich., for defendants.

MEMORANDUM OPINION

FEIKENS, District Judge.

Joseph Prosky, plaintiff, brought this diversity action for personal injuries he allegedly suffered while operating a Gridley screw machine manufactured by National Acme Company, defendant and third-party plaintiff.

Plaintiff states in his complaint and answers to interrogatories that when the machine became stuck it had to be hand cranked into reverse because the automatic reverse (a safety feature) had been removed by plaintiff's employer. While plaintiff was cranking the machine it allegedly went into "high gear" with such force as to fracture plaintiff's hand. Plaintiff claims that defendant negligently designed the machine by making the automatic reverse removable, or by failing to incorporate a "fail safe device" that would render the machine inoperative when the automatic reverse was removed.

Defendant impleaded plaintiff's employer, Bruce's Bower Roller Bearing, alleging that the machine was properly designed when it left the factory, and that the employer was actively negligent in removing the automatic reverse. Defendant seeks to recover from the employer by way of indemnity or contribution any amount for which defendant should be held liable to plaintiff on the original complaint. The employer has filed this motion to dismiss the third-party complaint claiming that it fails to state a claim upon which relief can be granted.

In view of the exclusive remedy provision of the Michigan Workmen's Compensation Act, M.C.L.A. § 418.131, it has been held that no action can be maintained by a tortfeasor against the employer of an injured plaintiff for contribution. Husted v. Consumers Power Co., 376 Mich. 41, 135 N.W.2d 370 (1965). If the third-party complaint is to stand, it must therefore be on the theory of indemnity.

The Michigan rule on common law indemnity is that "where the wrongful act of one results in liability being imposed on another, such other person may have indemnity from the person actually guilty of the wrong". Indemnity Ins. Co. v. Otis Elevator Co., 315 Mich. 393, 398-99, 24 N.W.2d 104, 106 (1946), quoting Village of Portland v. Citizens Telephone Co., 206 Mich. 632, 636, 173 N.W. 382 (1919). This rule has been applied by the Michigan courts in certain circumstances to permit persons held liable to employees to recover indemnity from the employers of the primary plaintiffs despite the immunity of the employers under the Workmen's Compensation Act. Thus, in Dale v. Whiteman, 388 Mich. 698, 202 N.W.2d 797 (1972), the owner of a car — held liable to an injured employee of a car wash solely on the basis of the automobile owner's liability statute — was permitted to recover common law indemnity from the owner of the car wash. The car owner was without personal fault, statutory liability requiring nothing more than that the car be operated with his consent. The owner of the car wash, on the other hand, was guilty of the imputed negligence of a second employee, who caused the injuries of the primary plaintiff by negligently hitting him with the car. In McLouth Steel Corp. v. A. E. Anderson Construction Corp., 48 Mich. App. 424, 210 N.W.2d 448 (1973), the owner of a blast furnace was permitted to recover common law indemnity from a contractor hired to reline the furnace, where the contractor's negligence proximately caused the injury to the contractor's employee (primary plaintiff), and the general verdict holding the owner liable to the employee might have been based upon the employee's claim that the work was inherently dangerous and that the owner was therefore vicariously liable for the negligence of the contractor. While noting that "a party seeking indemnification must prove himself free from personal fault", 48 Mich.App. at 430, 210 N.W.2d at 451, the court held that the jury's finding that the owner was negligent "does not preclude indemnification since the jury expressly found such negligence not a proximate cause of the injury". Id. at 431, 210 N.W.2d at 451 (emphasis original). (It should be noted that common law indemnity was an alternative basis for the court's decision since there was an express contract of indemnity running from the contractor to the owner.) Finally, in Nanasi v. General Motors Corp., 56 Mich.App. 652, 224 N.W.2d 914 (1974), the court held that the pleadings of the owner of a construction site and a general contractor stated a claim for common law indemnity against a subcontractor, the employer of the deceased employee for whose wrongful death the primary tort action was brought. The court stated that "it is true that one alleging common-law indemnity must plead and prove freedom from fault", 56 Mich.App. at 659, 224 N.W.2d at 917, but held that freedom from "active, causal negligence" was sufficient, and that in any case the primary plaintiff pleaded "vicarious liability" on the part of the owner and general contractor by claiming that they were responsible for "inherently dangerous activities".

The common thread running through the Dale, McLouth and Nanasi cases is the special relationship between the primary defendant and the third-party defendant that permitted the former to be held liable for injuries proximately caused by the negligence of the latter. Whether as the owner of an automobile or the owner of land on which an inherently dangerous activity is conducted, the courts of Michigan permit one who is held liable for injuries directly caused by the breach of a nondelegable duty through the negligence of another to recover complete indemnity from the one directly responsible. The rationale as stated in Dale is that "liability should fall upon the party best suited to adopt preventive measures". 388 Mich. at 706, 202 N.W.2d at 801.

The instant case is significantly different from the cases cited above, however, since it involves a claim that the manufacturer of a product might be held liable for the negligence of the user. The relationship between manufacturer and user is qualitatively different from that between car owner and driver or between landowner and contractor.¹ Finding no Michigan cases on the point, this court must apply the law as it would be applied by the Michigan Supreme Court if faced with similar facts. Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 851 (2d Cir. 1967).

The precise issue for decision is whether the manufacturer of a negligently designed product can recover common law indemnity from the employer of the injured plaintiff on the ground that the employer caused the injuries by negligently using the product. Guidance may be found in the decisional law of sister jurisdictions.

In Campbell v. Joslyn Mfg. & Supply Co., 65 Ill.App.2d 139, 212 N.E.2d 512 (1965), the court affirmed the denial of a motion to dismiss a third-party complaint for indemnity brought by the manufacturer of a wooden pole (third-party plaintiff) against the employer of the primary plaintiff. The original complaint was for personal injuries suffered when the employee fell from the pole; the employee alleged that the manufacturer was negligent in manufacturing and treating the pole, and in failing to inspect the pole for defects prior to delivery. The third party complaint alleged that any negligence was "active" on the part of the employer and merely "passive" on the part of the manufacturer. The court rejected the third-party defendant's argument that the employee would have to prove active negligence before he could recover from the manufacturer, which would be a bar to indemnity, stating that it was enough that "any set of facts" might arise in the case showing a right to indemnity. The court did not specify what possible set of facts might justify indemnity in the case at bar, but stated that "a determination as to whether the negligence is active or passive could not be made until all of the evidence is heard at the time of trial". 212 N.E.2d at 516.

The Campbell case has been superseded, however, by the more recent case of Burke v. Sky Climber, Inc., 13 Ill.App.3d 498, 301 N.E.2d 41 (1973), where the court affirmed the dismissal of a third-party complaint for indemnity brought by the manufacturer of scaffolding equipment against the employer of the primary plaintiff's decedent. The primary plaintiff had sued the manufacturer for the wrongful death of her husband—who was killed when a cable on the scaffold broke in the course of his work — on the theory that the manufacturer was negligent in designing, manufacturing, equipping, inspecting and testing the scaffold, in failing to warn of the danger, or, alternatively, that it was strictly liable in tort for selling a defective product. The third party complaint alleged that the employer had been in sole possession of the equipment for several years prior to the accident, that the employer had negligently failed to maintain the equipment, follow instructions and warn its employees, and that any negligence on the part of the manufacturer was "technical or passive" whereas the negligence of the employer was "active". The court stated:

"All of the charges in the complaint of plaintiff against the manufacturer are of active negligence. Thus, if plaintiff recovers a judgment against the manufacturer, it would necessarily be predicated upon active negligence. This being true, it follows inevitably that the manufacturer would not be entitled to indemnity as against the employer.

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