Selmo v. Baratono

• Court: Court of Appeal of Michigan
• Writing for the Court: J. H. GILLIS; MICHAEL D. O'HARA
• Citation: Selmo v. Baratono, 28 Mich.App. 217, 184 N.W.2d 367 (Mich. App. 1970)
• Decision Date: 30 November 1970
• Docket Number: No. 3,3
• Parties: James SELMO and Carole Selmo, Plaintiffs-Appellees, v. Arthur BARATONO, Sr., and Arthur Baratono, Jr., Defendants-Appellees, and General Motors Corporation, Defendants-Appellants. Elsworth J. CURRAN, Leo E. Curran, donald J. Curran, co-partners d/b/a Curran Chevrolet Sales, Defendants and Third-Party Plaintiffs-Appellees, v. GENERAL MOTORS CORPORATION, Third-Party Defendants-Appellants. Docket No 7652

Page 367

184 N.W.2d 367

28 Mich.App. 217

James SELMO and Carole Selmo, Plaintiffs-Appellees, v. Arthur BARATONO, Sr., and Arthur Baratono, Jr., Defendants-Appellees, and General Motors Corporation, Defendants-Appellants.

Elsworth J. CURRAN, Leo E. Curran, donald J. Curran, co-partners d/b/a Curran Chevrolet Sales, Defendants and Third-Party Plaintiffs-Appellees, v. GENERAL MOTORS CORPORATION, Third-Party Defendants-Appellants.

Docket No 7652.

Court of Appeals of Michigan, Division No. 3.

Nov. 30, 1970.

Rehearing Denied Jan. 28, 1971.

Released for Publication March 4, 1971.

Leave to Appeal Denied April 22, 1971.

Plunkett, Cooney, Rutt & Peacock, Detroit, for General Motors Corp.; Ross L. Malone and Otis M. Smith, Detroit, of counsel.

Phillip E. Blecher, Chicago, Ill., Nicholas Chapekis, Chapekis & Chapekis, Escanaba, for James and Carole Selmo.

Buelle A. Doelle, Detroit, for Curran Chevrolet Sales.

Clair J. Hoehn, Escanaba, Andrew H. Wisti, Hancock, for Arthur Baratono, Sr. and Arthur Baratono, Jr.

Before FITZGERALD, P.J., and J. H. GILLIS and O'HARA ^*, JJ.

J. H. GILLIS, Judge.

This is a products liability case. Plaintiffs' complaint charged the defendant General Motors Corporation with negligence in the design and manufacture of a 1965 Corvair automobile. In particular, plaintiffs claimed that the towing components of the Corvair in question were defective and that, as a result of such defect, plaintiffs proximately suffered serious injuries.

The case was tried in Escanaba, Michigan, before Circuit Judge Bernard Davidson. On February 1, 1967, a jury returned a verdict against General Motors in the amount of $460,000. General Motors' motions for judgment notwithstanding the verdict and for new trial were denied by Judge Davidson on April 17, 1969. Judgment was thereafter entered on the verdict. General Motors appeals.

The first question presented is whether plaintiffs successfully established a Prima facie case of actionable negligence against the defendant manufacturer. General Motors contends that the trial court should have granted its motion for a directed verdict made at the close of plaintiffs' case in chief. We state the facts and reasonable inferences therefrom in the light most favorable to plaintiffs in order to 'accord plaintiffs that full measure of favorable view to which they were entitled upon submission of defendant's said motion.' Schedlbauer v. Chris-Craft Corporation (1968), 381 Mich. 217, 221, 160 N.W.2d 889, 891. So stated, they are set forth below.

On June 18, 1966, plaintiffs James and Carole Selmo were seriously injured as a result of a head-on automobile collision between their vehicle and a 1965 Corvair owned by Arthur E. Baratono. The Corvair was designed and manufactured by the defendant General Motors Corporation.

Sometime before the accident, the Corvair's transmission had failed, disabling the Baratono vehicle. Its driver called for the service assistance of Curran Chevrolet Sales and a wrecker was sent by Curran to the scene of the disabled Corvair. This wrecker was operated by Gerald Johnson, a Curran employee. Upon arrival at the scene, Johnson attached the Corvair to his wrecker by means of two tow chains. Each chain was permanently affixed to the wrecker's tow bar at one end; at the loose end of each chain there was a steel grabhook. Johnson inserted these grabhooks into the towing components of the Baratono vehicle. The towing components of a Corvair were located, according to Johnson's experience, in the front bumper brackets. The Corvair was then hoisted by means of this attachment and it was towed by Johnson for approximately 12 miles.

After 12 miles of successful towing, both bumper brackets failed, releasing the steel grabhooks and dropping the Corvair to the highway below. At the time, the wrecker was traveling at approximately 45 miles per hour. Immediately thereafter, the Baratono Corvair crossed the center line of the highway and collided head-on with the Selmos' vehicle.

Plaintiffs' claim against General Motors was based on legal principle first enunciated by Mr. Justice Cardozo in the now famous MacPherson case (MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.W. 1050). The rule of manufacturer's liability stated in MacPherson has been adopted in Michigan. See Comstock v. General Motors Corporation (1959), 358 Mich. 163, 99 N.W.2d 627. It was plaintiffs' claim that the front bumper brackets of the Baratono Corvair were 'things of danger' within the MacPherson rule, i.e., that the brackets in question were reasonably certain to place life and limb in danger if negligently made.

A modern statement of the theory on which plaintiffs relied is found in 2 Restatement Torts, 2d, § 395, p. 325 as follows:

'A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and to those whom he should expect to be endangered by its probable use, is subject to liability for physical harm caused to them by its lawful use in a manner and for a purpose for which it is supplied.'

General Motors contends that the facts adduced at trial do not warrant application of the MacPherson rule or its modern restatement. In its brief General Motors argues:

'Bumper brackets are not, by nature, that type of part or material which, if negligently designed or manufactured, are such to make it reasonably certain that life and limb would be endangered.'

We disagree. On the evidence presented at trial the jury could have concluded that the brackets in question were intended to be utilized as towing components. Moreover, whether a defective towing component would, to a reasonable certainty, place life and limb in danger was a question of fact for the jury. Cf. Goullon v. Ford Motor Co. (CA 6, 1930), 44 F.2d 310.

At trial, there was evidence that General Motors intended the front bumper brackets of the Corvair in question to be used as towing points. Gerald Johnson testified that he first learned of such intended use from General Motors' own literature. Corvair owners' guides for the years 1962--1964 contained the following notation:

'Attaching points for lifting and towing are located in the front and rear bumper brackets.'

And, although the 1965 owner's guide contained no such recommendation, Johnson testified that the brackets on the front of the Baratono vehicle appeared similar to those of earlier years and that, as a result, he utilized the front brackets for towing. From this evidence, the jury could find that General Motors should have anticipated the use of the front bumper brackets of the Baratono vehicle as towing points. Under these circumstances, General Motors was obligated to use reasonable care in employing designs, selecting materials, and making assemblies of such brackets to the end that the brackets were reasonably safe for use as towing points. Davlin v. Henry Ford & Son, Inc. (CA 6, 1927), 20 F.2d 317; Larsen v. General Motors Corporation (CA 8, 1968), 391 F.2d 495; 76 A.L.R.2d 91, Annotation; 1 Frumer, Products Liability, § 7.01(1), p. 104; 1 Hursh, American Law of Products Liability, § 2.59, p. 240.

We are also satisfied that whether General Motors should have foreseen the manner in which Johnson utilized the towing brackets was a question of fact for the jury. We decline to rule as a matter of law that Johnson's attachment was clearly beyond what a prudent manufacturer would foresee as something to guard against. See generally, 2 Harper & James, Torts, § 28.6, p. 1546. Accordingly, we pass to the question of whether there was evidence of negligence in the design and manufacture of the brackets in question.

Dr. Thomas Despres, plaintiffs' expert witness, conducted various tests on the brackets, including tests designed to reveal the relative strength of the brackets for towing purposes. Dr. Despres testified that visual inspection of the ruptured brackets disclosed the presence of 'forming cracks,' flaws resulting from a miscarriage in the manufacturing process. These cracks reduced the strength of the brackets. Dr. Despres also testified that the brackets were defectively designed; that they were 'notched' as a result of improper design; and that 'this notch is a factor in a design which would tend to reduce the overall strength of the part.' When asked whether the brackets were suitable for towing purposes, Dr. Despres testified:

'A. The actual design in conjunction with the manufacturing defect, the design defect, the manufacturing defects, are, would render the bracket insufficiently strong to be expected to handle the loads of towing.

'Q. Any loads of towing?

'A. Well * * * in most manners of towing, I would expect that it would not be able to withstand it.

'Q. That includes the manner in which it was hooked up in this accident?

'A. In particular with reference to this accident, I would say, yes.'

On the basis of Dr. Despres' expert testimony alone, there was ample evidence from which the jury could find General Motors negligent. Cf. Goullon v. Ford Motor Co., Supra; Kanatser v. Chrysler Corporation (CA 10, 1952), 199 F.2d 610; Butler v. General Motors Corporation (CA 2, 1957), 240 F.2d 92; Sitta v. American Steel & Wire Division of United States Steel Corporation (CA 6, 1958), 254 F.2d 12. If believed, the Despres testimony established that General Motors failed to produce a bracket reasonably fit for its intended use or for what the jury might reasonably have found to be a foreseeable use--specifically, towing with the Johnson attachment.

That there exists in this case upon favorable-to-plaintiff view Prima facie evidence of negligent design and manufacture distinguishes this case from Gossett v. Chrysler Corporation (CA 6, 1966), 359 F.2d 84, on which defendant General Motors relies. In Gossett, there was no...