Przeradski v. Rexnord, Inc.

• Decision Date: 03 December 1982
• Docket Number: Docket No. 45056
• Citation: 119 Mich.App. 500,326 N.W.2d 541
• Parties: Robert PRZERADSKI, Administrator of the Estate of Constance Przeradski, Deceased, Plaintiff-Appellant, v. REXNORD, INCORPORATED, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 541

326 N.W.2d 541

119 Mich.App. 500

Robert PRZERADSKI, Administrator of the Estate of Constance Przeradski, Deceased, Plaintiff-Appellant, v. REXNORD, INCORPORATED, Defendant-Appellee.

Docket No. 45056.

Court of Appeals of Michigan.

Submitted March 2, 1982.

Decided Sept. 21, 1982.

Released for Publication Dec. 3, 1982.

Law Offices of Leonard C. Jaques, P.C. by Leonard C. Jaques, and Gromek, Bendure & Thomas by Mark R. Bendure, Detroit, of counsel, for plaintiff-appellant.

Harvey, Kruse, Westen & Milan by John F. Milan and Paul S. Koczkur, Detroit, for defendant-appellee.

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

BEASLEY, Judge.

On October 19, 1978, an Oakland County jury found no cause of action in favor of defendant on plaintiff's complaint for damages in a wrongful death action based on product liability. From a judgment entered on the verdict and the trial court's denial of his motion for a new trial, plaintiff, Robert Przeradski, files application for delayed appeal, which has been granted.

In this wrongful death action, which was filed on November 27, 1974, by plaintiff, as administrator of the estate of his wife, Connie Przeradski, he alleged that defendant, Rexnord, Inc., the manufacturer of a model 6S cement mixer, breached express and implied warranties regarding the product, manufactured an inherently dangerous product and was grossly negligent.

The record discloses that on October 20, 1972, plaintiff and his wife were remodeling their home. While cleaning a Rexnord cement mixer, which was manufactured in the late 1940's or early 1950's, the decedent fell and her waist-length hair became entangled in one of the moving parts of the apparatus, a part referred to at trial variously as a hoist, winch, pulley, cathead, winch-head, niggerhead, and power take-off. She was unable to disengage the machine and plaintiff, who was about 75 to 100 feet away, was unable to turn off the cement mixer in time to save her life.

On appeal, plaintiff raises numerous issues. First, he maintains that the trial court erred by excluding from evidence extra-judicial statements made by employees of a retail store which carried defendant's products. On direct examination, plaintiff attempted to testify as to the employees' statements in order to display the unavailability of an owner's manual for the cement mixer. Plaintiff sought to introduce this evidence to establish that defendant was negligent in not providing adequate warnings.

In ruling the employees' hearsay declarations inadmissible, the trial court held that plaintiff had not established an agency relationship between defendant and the retail outlet and, thus, the statements concerning the unavailability of an owner's manual were not admissions by a party opponent pursuant to MRE 801(d)(2)(D).

Before an agent's declaration may be received as evidence against the principal, there must be some evidence of an agency relationship. ¹ The apparent authority of an agent to speak on behalf of a principal may not be established by the acts and conduct of the agent alone. ² We conclude that the trial court did not err in excluding the hearsay statements from admission into evidence.

Secondly, plaintiff claims the trial court erred by prohibiting the introduction of evidence regarding the placement of a protective guard on the cement mixer by someone other than defendant. At trial, plaintiff's expert witness, Harold Joseph, testified that he would have placed a protective guard over the winch-head. Subsequent to Joseph's testimony, plaintiff sought to introduce a guard which had been constructed and installed over the winch-head after the accident.

Defendant objected to the evidence on the basis of MRE 407, which renders subsequent remedial measures inadmissible to prove negligence in connection with the incident. In response to the objection, plaintiff stated the evidence was offered to establish the feasibility of installing a safety device. In barring the introduction of the evidence, the trial court relied on Denolf v. Frank L. Jursik Co. ³

An appellate court will not overturn a trial court's decision relating to the admissibility of evidence unless it is clearly erroneous. ⁴ Inasmuch as MRE 407 is applicable to both negligence and product liability actions, ⁵ we do not find that the trial court erred in excluding the proffered evidence.

Plaintiff also assigns as error the trial court's admission of evidence that defendant had not received notice of other injury claims involving defendant's model 6S cement mixer. Our examination of the record reveals that the trial court only permitted plaintiff to inquire as to the history of the particular cement mixer owned by plaintiff. Defendant's expert witness, Harold Thayer, and the previous owner, Gerald Rattee, testified that there were not any problems with the machine prior to plaintiff's ownership.

Relevant evidence is defined in MRE 401:

" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

The admissibility of the claim-free history of plaintiff's model 6S cement mixer may have had a tendency to make the existence of a design defect less probable than it would be without such evidence. Since the evidence of claim-free history related to a relevant time period, the trial court did not err in allowing the testimony. ⁶

Plaintiff also attacks the admissibility of test results performed by defendant's expert witness. The tests involved the striking of a model 6S cement mixer's winch-head with a hammer. The experimental data was relevant to the lawsuit because it rebutted plaintiff's claim that since the winch-head was fragile and inherently dangerous, it should have been guarded by a safety device.

In order for results obtained in out-of-court experiments to be admissible in evidence, the conditions of the experiment must be sufficiently similar to those involved in the particular case. ⁷ The decision to admit experimental test results rests within the trial court's sound discretion. ⁸

In allowing the introduction of the experimental data over plaintiff's objection, the trial court did not abuse its discretion. Both the winch-head involved in the accident and the one used in the experiment were of the same shape, dimensions and material. The evidence was relevant to demonstrate the non-fragility of the winch-head. Any minor deviations of the model winch-head from the unit belonging to plaintiff's cement mixer go to the weight rather than the admissibility of the evidence. ⁹

Plaintiff contends that the trial court erred in directing a verdict on the gross negligence count at the completion of proofs and before instructing the jury. In this case, plaintiff did not claim in the trial court that defendant was guilty of wanton and willful misconduct. In fact, plaintiff alleged gross negligence only in his opening statement, making no mention of gross negligence in his closing argument.

In Nationwide Mutual Fire Ins. Co. v. Detroit Edison Co., ¹⁰ we said:

" * * * at common law the terms gross negligence and wilful and wanton misconduct are distinct concepts. * * *

"To the extent that the term gross negligence does survive, however, it is often described as a 'failure to exercise even that care which a careless person would use'. Prosser, [Torts (4th ed, Sec. 34] supra, at 183.

"In the instant case, we believe that by the term 'gross neglect', the parties intended some form of negligence greater than ordinary negligence, but less than conduct bordering on deliberateness. Therefore, we conclude that for purposes of this lease, when the parties employed the term 'gross neglect', they meant that defendant would be liable for failure to exercise the degree of care that even a careless individual would employ under the circumstances."

Viewing the proofs in a light most favorable to plaintiff, we do not find sufficient evidence to warrant submission to the jury of the gross negligence claim. The proofs were devoid of evidence to support the claim and, as indicated, in his closing argument plaintiff's counsel did not even refer to any allegations of gross negligence.

Plaintiff also asserts the trial court erred reversibly in its negligent design instruction, in which the following charge was given:

"When I use the word, negligence, with respect to the Defendant's conduct, you will find that I will be referring to negligent design. And in that respect I mean, one, that the design claimed to be negligent was not in conformity with industry design standards or design guidelines established by an authoritative voluntary association; or two, the design choice of the manufacturer carries with it a latent or hidden risk of injury, and the manufacturer has not adequately communicated the nature of that risk to potential users of the product. It is for you to decide whether the design of the machine in this case was negligent under such circumstances. But, that is the definition of the term, negligent design, that I will be using subsequently."

Plaintiff claims the appropriate test of liability is whether the design of the product created an unreasonable risk of foreseeable harm, and that the presence of industry standards should not be the determinative factor in evaluating a product design, but rather the standards should only be evidence for the jury to consider.

In Silisky v. Midland-Ross Corp. ¹¹ we approved the test concerning a manufacturer's liability for an allegedly negligent product design as set forth in Owens v. Allis-Chalmers Corp: ¹²

" 'Consequently, we conclude that for a plaintiff to establish a question of fact as to a manufacturer's breach of duty in design defect products liability litigation, evidence of the following must be presented:

" '(1) That the particular design was not in conformity with industry...