Scott v. Illinois Tool Works, Inc.

• Decision Date: 31 May 1996
• Docket Number: Docket No. 170249
• Citation: 217 Mich.App. 35,550 N.W.2d 809
• Parties: , 30 UCC Rep.Serv.2d 473, Prod.Liab.Rep. (CCH) P 14,818 Dick SCOTT and Vada Scott, Plaintiffs-Appellees/Cross-Appellants, and Motor Wheel Corporation, Intervening Plaintiff-Appellee, v. ILLINOIS TOOL WORKS, INC. and Signode Supply Corporation, Defendants-Appellants/Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 809

550 N.W.2d 809

217 Mich.App. 35, 30 UCC Rep.Serv.2d 473,

Prod.Liab.Rep. (CCH) P 14,818

Dick SCOTT and Vada Scott, Plaintiffs-Appellees/Cross-Appellants and Motor Wheel Corporation, Intervening Plaintiff-Appellee, v. ILLINOIS TOOL WORKS, INC. and Signode Supply Corporation Defendants-Appellants/Cross-Appellees.

Docket No. 170249.

Court of Appeals of Michigan.

Submitted Dec. 20, 1995, at Lansing.

Decided May 31, 1996, at 9:15 a.m.

Released for Publication July 29, 1996.

Logeman & Associates, P.C. by Robert E. Logeman, Ypsilanti, for plaintiffs.

Conlin, McKenney & Philbrick, P.C. by Allen J. Philbrick, Ann Arbor, and Mayer, Brown & Platt by Lawrence S. Robbins and Donald M. Falk, Washington, D.C., for defendants.

Before O'CONNELL, P.J., and SAAD and GIOVAN, ^* JJ.

SAAD, Judge.

Defendants appeal the $1,016,732.92 judgment entered in favor of plaintiff, Dick Scott ¹ following a jury verdict. Plaintiff cross appeals from the court's calculation of the present value of the portion of the judgment representing future damages. We affirm the jury verdict in favor of plaintiff and remand for the limited purpose of correcting a clerical error in judgment.

Plaintiff, a quality control inspector for intervening plaintiff Motor Wheel Corporation, was injured when a polyester strap manufactured and sold by defendants broke while he was tightening it around a palletized load of parts. Plaintiff alleged negligence, as well as breach of both express warranty and implied warranty. After a seven-day trial, the jury, on the general verdict form, returned a verdict for plaintiff. The court reduced the jury's award of future damages to present value, using a compound discount method. Following entry of the judgment, defendants moved alternatively for a judgment notwithstanding the verdict (JNOV), a new trial, or remittitur. The lower court denied defendants' motions, and this appeal followed.

I

Defendants first assert that the trial court erred in permitting this case to go to the jury because, according to defendants, there was insufficient evidence of a causal relationship between the initial injury and the eventual wrist fusion (which resulted in permanent disability). Defendants contend that plaintiff's case should not have been submitted to the jury because the law requires more than mere speculation or conjecture regarding causation. Here, defendants insist that the best evidence plaintiff could produce concerning causation was, indeed, mere conjecture and speculation. In support of this argument, defendants rely heavily upon plaintiff's own treating physician, who was, at best, equivocal in his testimony de bene esse about what caused the wrist condition that ultimately required the wrist fusion. In particular, although Dr. Raymond C. Noellert testified that the accident caused an initial fracture of plaintiff's wrist, he admitted being "less certain" that the subsequent two problems with plaintiff's wrist (the Kienbock's disease and the ligament rupture) were caused by the accident.

However, according to Dr. Noellert, after plaintiff's fracture should have healed, plaintiff continued to experience pain:

[A]fter that point, we started treating him certainly eventually for all three of these, whether he in fact sustained a scaphoid fracture alone, or in combination with the ligament rupture or a bone alone, or in combination with some future damage that occurred to an area of the lunate that may or may not have been present at that time is speculation, as far as I'm concerned, on everybody's part. No one is ever going to have a definite answer on those questions.

I guess I would also think that if he did have a scaphoid fracture, and if that indeed were the only thing that was the result of the injury, that once it was healed, he should have returned to his original condition. And he did not. So that leads me to believe that somehow the ligament rupture was present in part [on the date of the accident], and was completely ripped, or that somehow his Kienbock's disease may have been present in part, and may have been aggravated by the accident; but that somehow that traumatic event was significant, you know, in causing or worsening those conditions such that he did not get better after treatment from the scaphoid fracture. Does anyone really know for sure? No.

When reviewing a trial court's failure to grant a defendant's motion for a JNOV, testimony and all legitimate inferences therefrom are examined in the light most favorable to the plaintiff. Thorin v. Bloomfield Hills Bd. of Ed., 203 Mich.App. 692, 696, 513 N.W.2d 230 (1994). On the other hand, as stated in Mulholland v. DEC Int'l Corp., 432 Mich. 395, 416-417, n. 18, 443 N.W.2d 340 (1989), quoting Prosser & Keeton, Torts (5th ed), § 41, p. 269:

"The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant."

More recently, our Supreme Court stated that it is insufficient to submit to the jury a causation theory that, while factually supported, is, at best, just as possible as another theory. Skinner v. Square D Co., 445 Mich. 153, 164, 516 N.W.2d 475 (1994). "Rather, the plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred." Id. at 164-165, 516 N.W.2d 475. However, as the Square D Court stated: " '[I]f there is evidence which points to any 1 theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.' " Id. at 164, 516 N.W.2d 475, quoting Kaminski v. Grand Trunk W.R. Co., 347 Mich. 417, 422, 79 N.W.2d 899 (1956).

Here, the evidence was very weak that the eventual wrist fusion was the result of a logical sequence of events which began with the accident. Yet, when viewed in the light most favorable to the plaintiff the evidence concerning such causation was marginally sufficient to permit the question of causation to go to the jury. Square D Co., supra at 164, 174, 516 N.W.2d 475; Schutte v. Celotex Corp., 196 Mich.App. 135, 138, 492 N.W.2d 773 (1992). Therefore, though a close question, the trial court did not err in permitting the case to go to a jury.

II

Defendants next argue that the trial court erred in denying their motion for a new trial, because the overwhelming weight of the evidence established that plaintiff's wrist could not have been injured in the manner in which he claimed. In reviewing a trial court's denial of a motion for a new trial, we must be mindful that the functions of the trial court and the appellate court are not identical. The trial court's function with respect to a motion for a new trial is to determine whether the overwhelming weight of the evidence favors the losing party. Arrington v. Detroit Osteopathic Hosp. Corp. (On Remand), 196 Mich.App. 544, 564, 493 N.W.2d 492 (1992). As an appellate court, our function is to determine whether the trial court abused its discretion in making such a finding. Id. Here, there was no such abuse of discretion. While the two orthopedic surgeons (Dr. Noellert and Dr. Waldomar Roeser) agreed concerning the typical cause of a scaphoid fracture, they disagreed with respect to whether such a fracture could have been caused by the accident that plaintiff described. However, nothing in the record indicates that Dr. Noellert lacked credibility to the extent that the trial court should have granted a new trial. This issue is without merit.

III

At trial, defendants moved for a directed verdict on the ground that there was insufficient evidence of breach of an express warranty to permit submission of the claim to the jury. The motion was denied. Defendants raise the same issue on appeal. When reviewing a claim that there was insufficient evidence presented in a civil case, this Court must view the evidence in a light most favorable to the plaintiff and give the plaintiff the benefit of every reasonable inference. Mull v. Equitable Life Assurance Society of the United States, 196 Mich.App. 411, 421, 493 N.W.2d 447 (1992). If, after viewing the evidence, reasonable people could differ, the question is properly left to the trier of fact. Id.

An express warranty is created by a seller by setting forth a promise or affirmation, description, or sample with the intent that the goods will conform. Guaranteed Construction Co. v. Gold Bond Products, 153 Mich.App. 385, 390, 395 N.W.2d 332 (1986). M.C.L. § 440.2313; M.S.A. § 19.2313 states in relevant part:

(1) Express warranties by the seller are created as follows:

(a) An affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(b) A description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

Plaintiff based his express warranty claim on a price quotation given by one of the defendants, that states in relevant part: "1822 TENAX Strapping (800# Break # 380 Strength--6,500' per coil)." The "# 380" portion of the quote is handwritten; the remainder of the quote is typewritten. The "# 380" refers to a specification that appears on a separate paper (created by plaintiff's employer, intervening plaintiff Motor Wheel Corp.) that stated that the "Tenax" polyester strapping is to have "AVE. BREAKING STRENGTH: 800 LBS." Neither the price...