Robertson v. Swindell-Dressler Co.

• Decision Date: 04 April 1978
• Docket Number: 77-1730,Docket Nos. 77-1729,SWINDELL-DRESSLER
• Citation: 82 Mich.App. 382,267 N.W.2d 131
• Parties: Melvin A. ROBERTSON, Plaintiff-Appellee, v.COMPANY, a division of Pullman, Inc., a Delaware Corporation, Defendant, and J. B. Webb Company, a Michigan Corporation, Defendant-Appellant. Melvin A. ROBERTSON, Plaintiff-Appellee, v.COMPANY, a division of Pullman, Inc., a Delaware Corporation, Defendant-Appellant, and J. B. Webb Company, a Michigan Corporation, Defendant. 82 Mich.App. 382, 267 N.W.2d 131
• Court: Court of Appeal of Michigan — District of US

Page 131

267 N.W.2d 131

Melvin A. ROBERTSON, Plaintiff-Appellee, v. SWINDELL-DRESSLER COMPANY, a division of Pullman, Inc., a

Delaware Corporation, Defendant,

and

J. B. Webb Company, a Michigan Corporation,

Defendant-Appellant.

Melvin A. ROBERTSON, Plaintiff-Appellee, v. SWINDELL-DRESSLER COMPANY, a division of Pullman, Inc., a

Delaware Corporation, Defendant-Appellant,

and

J. B. Webb Company, a Michigan Corporation, Defendant.

Docket Nos. 77-1729, 77-1730.

82 Mich.App. 382, 267 N.W.2d 131

Court of Appeals of Michigan.

April 4, 1978.

Released for Publication June 27, 1978.

[82 MICHAPP 386] Vandeveer, Garzia, Tonkin, Kerr & Heaphy by Richard J. Tonkin, Detroit, for Swindell-Dressler.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by B. I. Stanczyk, John P. Jacobs, Dennis M. Powers, Detroit, for J. B. Webb Co.

Lawrence A. Bohall, Detroit, for plaintiff-appellee.

Before T. M. BURNS, P. J., and CAVANAGH and RILEY, JJ.

RILEY, Judge.

The present action involves a products liability suit arising from an injury suffered by plaintiff which occurred within the course of his employment with Ford Motor Company. Following a lengthy trial, the jury found both defendants negligent and awarded plaintiff $931,000. Both defendants have appealed, and the matters have been consolidated within this opinion. ¹

On April 26, 1972, plaintiff was employed by Ford at its Flat Rock Casting Plant. His job involved assisting rough-cast engine blocks in moving along a system of conveyors. Plaintiff worked with two other men at the conveyor system, and would rotate job positions at half-hour intervals. While in the process of rotating jobs plaintiff attempted to step across the moving conveyor, but slipped or lost his balance, causing his legs to become entrapped within the conveyor's machinery. As a result of this accident he incurred serious injuries, including ultimately the amputation of a leg.

[82 MICHAPP 387] Defendant Swindell-Dressler Co. (Swindell) had contracted with Ford for development of the casting plant. Swindell in turn had contracted with J. B. Webb Co. (Webb) for manufacture and installation of the conveyor system in question.

Plaintiff brought the present suit alleging negligence and breach of implied warranties of fitness against both defendants. The primary claims of liability concerned (1) the use of straight rather than tapered rollers in a 90-degree turn of the conveyor; ² (2) the design of "popout" rollers at the point of the conveyor where plaintiff was injured; ³ and (3) the absence of a crossover or stile at plaintiff's job location.

Defendant Swindell's first claim on appeal is that it could not have been held liable on a theory of negligence where, as general contractor, it subcontracted the design manufacturer, and installation of the conveyor to defendant Webb and where the conveyor was built to Ford's specifications, was accepted by Ford, and subsequent to that acceptance Ford had altered the methods and procedures for use of the conveyor, which alterations led to plaintiff's accident.

We do not find any of these arguments persuasive. Swindell was not sued under a doctrine of respondeat superior based upon the alleged negligence of Webb, but rather was claimed to be a joint active tortfeasor with Webb. Although Swindell[82 MICHAPP 388] claims only limited design responsibility for this conveyor system, the record is replete with testimony, including that of employees of Swindell, that both defendants were actively involved in negotiations with Ford concerning the design of the conveyor. Swindell cannot shift its potential liability onto the shoulders of Webb by reference to a theory of vicarious liability that did not exist at trial.

Defendant fares no better by arguing that Ford accepted the conveyor system without complaint or modification. The "accepted work" doctrine has been abolished in Michigan as a defense to an action based on the negligence of a contractor. Wilhelm v. The Detroit Edison Co., 56 Mich.App. 116, 224 N.W.2d 289 (1974), Kapalczynski v. Globe Construction Co., 19 Mich.App. 396, 172 N.W.2d 852 (1969).

Swindell's strongest argument in regard to its own liability is that Ford changed the manner in which the conveyor system was operated after the manufacture and installation had been completed. It was not disputed at trial that the original grid plans for this part of the factory, which designated where workers would be positioned, did not have a work station at the location where plaintiff was injured. Swindell contends, on appeal as at trial, that the safety precautions built into the conveyor system could not be expected to fully protect a worker whose location was unknown during the periods of design and installation.

Implicit in this argument defendant raises the threshold question of the lawsuit; i. e., whether the danger of plaintiff's accident was reasonably foreseeable to defendants during the design phase of the construction process. In Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977), the Michigan [82 MICHAPP 389] Supreme Court discussed at length the elements of a negligence claim in relation to products liability actions:

"The elements of an action for negligence are (i) duty, (ii) general standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage.

" 'Duty' comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct; it does not include where there is an obligation the nature of the obligation: the general standard of care and the specific standard of care.

"While the court decides questions of duty, general standard of care and proximate cause, the jury decides whether there is cause in fact and the specific standard of care: whether defendants' conduct in the particular case is below the general standard of care, including unless the court is of the opinion that all reasonable persons would agree or there is an overriding legislatively or judicially declared public policy whether in the particular case the risk of harm created by the defendants' conduct is or is not reasonable.

"Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person. Proximate cause encompasses a number of distinct problems including the limits of liability for foreseeable consequences. In the Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928)) case, the New York Court of Appeals, combining the questions of duty and proximate cause, concluded that no duty is owed to an unforeseeable plaintiff.

"The questions of duty and proximate cause are interrelated because the question whether there is the requisite relationship, giving rise to a duty, and the question whether the cause is so significant and important to be regarded a proximate cause both depend in part on foreseeability whether it is foreseeable that the actor's conduct may create a risk of harm to the [82 MICHAPP 390] victim, and whether the result of that conduct and intervening causes were foreseeable.

"It is well established that placing a product on the market creates the requisite relationship between a manufacturer, wholesaler and retailer and persons affected by use of the product giving rise to a legal obligation or duty to the persons so affected. A manufacturer owes the consumer an obligation to avoid negligent conduct. The obligation extends to persons within the foreseeable scope of the risk." (Footnotes omitted.) 400 Mich. at 437, 438-439, 254 N.W.2d at 764.

The controversy between the parties as to whether plaintiff was within the foreseeable scope of risk from the conveyor system falls under the Moning Court's definition of "duty". If plaintiff was foreseeable, a sufficient relationship was created, giving rise to the "legal obligation on the actor's part for the benefit of the injured person".

As the Moning Court further points out, the question of duty is generally decided by the trial court as a matter of law. ⁴ However, where the facts presented at trial are a matter of dispute, the jury has a function in the decision on whether a duty exists:

[82 MICHAPP 391] "In any case where there might be reasonable difference of opinion as to the foreseeability of a particular risk, the reasonableness of the defendant's conduct with respect to it, or the normal character of an intervening cause, the question is for the jury, subject of course to suitable instructions from the court as to the legal conclusion to be drawn as the issue is determined either way." (Footnote omitted. Emphasis added.) Prosser, Torts (4th Ed.), § 45, p. 290.

See also Farwell v. Keaton, 396 Mich. 281, 240 N.W.2d 217 (1976), Holloway v. Martin Oil Service, Inc., 79 Mich.App. 475, 262 N.W.2d 858 (1977).

Applying these standards to the case at bar, we find that the court correctly denied the motion for directed verdict. Plaintiff presented evidence from an expert witness that the change made in the conveyor system from tapered to straight rollers should have caused defendants to foresee that a worker would eventually have to be stationed at the curve to assist the engine blocks in negotiating the turn. Other evidence was presented that preliminary grid drawings are often incomplete or subject to revision upon implementation of the final plans. This evidence directly placed the issue of foreseeability in dispute. Since the claim of negligence was properly placed before the jury, their decision on the factual issues is beyond the scope of our review.

Defendant Swindell's second contention is that plaintiff was contributorily negligent as a matter of law. It was admitted at trial that plaintiff voluntarily attempted to step over the conveyor, knowing it to be operating. Swindell claims that this act, in the face of a clear danger, precluded any recovery on the basis of a...