Rector v. Michigan Sec. Systems, Inc.

• Decision Date: 22 May 1979
• Docket Number: Docket No. 78-581,MULTI-ELMAC
• Citation: 90 Mich.App. 291,282 N.W.2d 295
• Parties: Emily RECTOR, Plaintiff-Appellant, v. MICHIGAN SECURITY SYSTEMS, INC., a corporation, Defendant-Third Party Plaintiff-Appellee, v.COMPANY, a Michigan Corporation, Third Party Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 295

282 N.W.2d 295

90 Mich.App. 291

Emily RECTOR, Plaintiff-Appellant, v.MICHIGAN SECURITY SYSTEMS, INC., a corporation, Defendant-Third Party Plaintiff-Appellee, v.MULTI-ELMAC COMPANY, a Michigan Corporation, Third Party

Defendant-Appellee.

Docket No. 78-581.

Court of Appeals of Michigan.

May 22, 1979.

Released for Publication Aug. 22, 1979.

Lopatin, Miller, Bindes, Freedman & Bluestone, by Michael Gagleard, Detroit, for plaintiff-appellant.

Dice, Sweeney, Sullivan & Feikens, by Jon Feikens, Troy, for Michigan Sec. Systems.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P. C., by Joseph Walker, Detroit, for Multi-Elmac Co.

Before DANHOF, C. J., and RILEY and KAUFMAN, JJ.

DANHOF, Chief Judge.

PlaintiffEmily Rector appeals from a jury verdict of no cause of action in a products liability suit arising out of defendant's sale to plaintiff of a burglar alarm system.We find it unnecessary to address the issue she raises because we conclude that she presented insufficient evidence to support a reasonable inference that the product contained a defect attributable to defendant.The case should therefore not have been submitted to the jury for decision.

Plaintiff's proofs at trial were as follows.Plaintiff was a widow living alone in a neighborhood of Detroit which had recently been the scene of several burglaries and muggings.Since her job often caused her to return home later in the evenings, she became apprehensive about her safety.In February, 1971, plaintiff purchased a burglar alarm system for her home from defendantMichigan Security Systems, Inc.Having explained her concerns to Clem Campbell, defendant's sales representative, and relying upon his recommendation, she also purchased a remote control panic sender device.This consisted of a small, hand-held unit with a push button which, when pressed within a limited range of plaintiff's home, would transmit a radio signal activating a receiver in her attic.The receiver would then trigger a very loud siren and a flashing light on her roof.

Defendant installed the system in plaintiff's home in March, 1971.Both plaintiff and defendant tested the system, including the sender device, and found it in satisfactory working order.However, the alarm did go off, apparently without cause, on at least one occasion two or three months after its installation.One of defendant's installers checked the system the next day, but found nothing amiss.The installer surmised to plaintiff at the time that another object emitting stray radio frequency signals (E. g., a garage door opener, ham radio or a police car radio) might have triggered the alarm, but he otherwise deemed the system to be functioning properly.

Plaintiff experienced no further problems until November 18, 1971.She pulled into her driveway at 9:45 p. m., took the sender in hand, and then, upon opening her car door, sensed someone's presence.Plaintiff immediately pressed the button on the sender, but the alarm system failed to function.As she continued to futilely press the button, she was dragged from her car and thrown to the ground.Her two assailants escaped with her purse.Plaintiff also sustained a seriously fractured ankle, requiring surgery, and has since suffered numerous complications.One of plaintiff's neighbors verified that the alarm system had been turned on that day.

Joseph Matcher, a technician employed by Multi-Elmac Company, the manufacturer of plaintiff's sender and third party defendant in this case, testified that he had put his initials on a repair invoice indicating that plaintiff's sender had been repaired on December 2, 1971.Clem Campbell, defendant's sales representative, stated that both plaintiff's sender and receiver had been replaced after November 18, 1971, and that he did not know what happened to the replaced sender.He also testified that he had tested the sender in plaintiff's home after November 18, that it did not function at that time, and that Multi-Elmac had subsequently reported that the sender was "out of frequency".

Phil Latona, the installer of plaintiff's system, testified that he had never tested the sender in plaintiff's car.He also admitted that he was not very familiar with the internal mechanism of the sender.Although he could tell whether it was functioning or not, he could not fully test it after installation to determine whether potential or latent defects existed.Plaintiff rested her case.

While plaintiff has the burden of proof to establish a defect attributable to defendant, we will also take into account the testimony offered by third-party defendant Multi-Elmac which, in certain respects, plaintiff relied on to establish her prima facie case.Joseph Matcher, Multi-Elmac's repair technician, was recalled to testify regarding the repairs he had performed on plaintiff's sender.¹ Based on the notations he had made in his repair invoice, he stated that he had found no workmanship defect.He had done a slight tuning adjustment to bring the sender closer to the standard frequency specification.But again according to the invoice, he testified that the sender was probably within frequency specifications because he would normally have noted any need for major adjustment.Matcher then stated that he had marked a column on the invoice entitled "component failure", and that the notation might have referred to a defective battery in the sender.Matcher also testified that he had replaced the push button on the unit, but did not know whether the replacement was for esthetic reasons (E. g., worn or dirty appearance) or because it was defective.

Finally, Peter Wallen, an electronics engineer from Multi-Elmac, testified extensively as to various factors affecting the functional capacity of the sender and receiver.He stated that atmospheric changes, other objects emitting radio signals, the metal of a car dashboard, the tinted glass of a car windshield and abusive treatment of the sender could all result in or contribute to desensitizing the receiver or interfering with the transmitting capacity of the sender.In his opinion, the sender must have been functioning correctly when it left the manufacturer or it would not have worked properly for eight months thereafter.

Plaintiff submitted her case to the jury on the theories of defendant's negligence and of defendant's breach of an implied warranty of reasonable fitness for the purpose intended.Under either theory, plaintiff must initially prove a defect attributable to the defendant.Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 98-99, 133 N.W.2d 129(1965), Snider v. Bob Thibodeau Ford, Inc., 42 Mich.App. 708, 713, 202 N.W.2d 727(1972), Caldwell v. Fox, 394 Mich. 401, 410, 231 N.W.2d 46(1975).

Although the proofs suggest a number of possible causes for malfunction of the sender, plaintiff never sought to pinpoint the specific nature of the alleged defect.This is, however, not necessarily fatal to her case if one could reasonably infer from circumstantial evidence that a defect did exist.SeeKujawski v. Cohen, 56 Mich.App. 533, 224 N.W.2d 908(1974), Bronson v. J. L. Hudson Co., 376 Mich. 98, 135 N.W.2d 388(1965), Piper v. Tensor Corp., 71 Mich.App. 658, 248 N.W.2d 659(1976), Garmo v. General Motors Corp., 45 Mich.App. 703, 207 N.W.2d 146(1973).

We also preliminarily note that we must view the evidence in the light most favorable to the plaintiff.If there is any competent evidence sufficient to support a verdict for plaintiff, we may not interfere with the province of the trier of fact.SeeKujawski, supra, 56 Mich.App. at 535-538, 224 N.W.2d 908.The comparative probability or plausibility of competing theories is not for this Court or a trial court to decide.Holloway v. General Motors Corp. (On Rehearing), 403 Mich. 614, 271 N.W.2d 777(1978), Rev'g 399 Mich. 617, 250 N.W.2d 736(1977).

Plaintiff sufficiently established that the sender malfunctioned on the date of her injury, and that it was still nonfunctional when defendant's employees later checked the alarm system at her home.Proofs were also adduced that thereafter her alarm system only operated properly by remote control when the sender was replaced, that both the battery and the push button of plaintiff's sender were replaced, and that the sender required adjustment to frequency specifications after the initial date of malfunction.Although the nature of the specific defect is not clear, one may reasonably infer that either one cause alone, or a combination of causes, rendered the plaintiff's sender defective on November 18, 1971.

However, one cannot reasonably infer that any of the aforementioned possible defects is attributable to defendant.Plaintiff stated that the alarm system, including the sender, worked properly from the date of installation until the date of her injury, a period of some eight months.The one possible exception was a false alarm about two or three months after installation.But the only explanation offered was that a stray radio signal had activated the receiver.Plaintiff made no showing that the receiver was defective then or on November 18, 1971.If anything, the false alarm seems to attest to the sensitivity of the receiver.In addition, this incident cannot be linked to the operation or malfunction of the sender and is thus not probative of any existing defect in that unit.Compare, Snider, supra, Piper, supra, andGarmo, supra, in which a history of repairs to or of difficulties with the alleged defective part aided in establishing a link between defendant and the defect.

If the sender functioned appropriately for eight months without evidence of defect, one must then be able to reasonably infer that the defect or defects revealed by the later malfunction were latent in the product at the time the defendant sold it to plaintiff.SeeHolloway, supra.The mere fact of malfunction does not give rise to any necessary inference as to when the defect arose.

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