Snider v. Bob Thibodeau Ford, Inc.

• Decision Date: 26 September 1972
• Docket Number: Docket No. 11067,No. 1,1
• Citation: 202 N.W.2d 727,42 Mich.App. 708
• Parties: Walter SNIDER et al., Plaintiff-Appellants, v. BOB THIBODEAU FORD, INC., a Michigan corporation, and Ford Motor Company, a Delaware corporation, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 727

202 N.W.2d 727

42 Mich.App. 708

Walter SNIDER et al., Plaintiff-Appellants, v.BOB THIBODEAU FORD, INC., a Michigan corporation, and Ford Motor Company, a Delaware corporation, jointly and severally, Defendants-Appellees.

Docket No. 11067.

Court of Appeals of Michigan, Division No. 1.

Sept. 26, 1972.

Released for Publication Dec. 14, 1972.

Leave to Appeal Denied Dec. 7, 1972.

Leonard E. Bellinson, Bellinson & Doctoroff, Detroit, for snider.

George Hubbard, Detroit, for Mich. Mutual.

Plunkett, Cooney, Rutt & Peacock, Detroit, for Thibodeau.

Alexander, Buchanan & Conklin, Detroit, for Ford.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

LEVIN, Presiding Judge.

PlaintiffWalter Snider purchased from defendantBob Thibodeau Ford, Inc. a new truck manufactured by defendantFord Motor Company.The truck was purchased for use in Snider's business of delivering advertising circulars to boys, who in turn made local deliveries.

Snider testified that on the day of the accident, while proceeding north on Mound Road in Detroit, he applied the brakes, discovered that the brake pedal slipped to the floor without meeting any resistence, and, in order to avoid striking other vehicles, he swerved onto the median and struck a tree.

Snider brought this action against Ford and Thibodeau seeking to recover damages.The complaint alleged counts in warranty and negligence but falls into the general area of products liability.¹

The trial judge directed a verdict in favor of defendant Ford at the close of Snider's case, and the jury returned a verdict of no cause of action in favor of defendant Thibodeau.

I

Snider first claims that the judge erred in directing a verdict in favor of Ford.The question in such cases is whether the evidence, viewed in the light most favorable to the plaintiff, establishes a Prima facie case against the defendant.²

We begin our consideration with a preconception which is best stated at the outset.When a jury is impaneled, the jury, not the court, is vested with the authority of the trier of fact.³The device of directed verdicts was not intended to disturb this allocation of function, that is certain.A verdict is properly directed only when there is no question for a trier of fact--where all reasonable men must agree that there has been an essential failure of proof.⁴

In products liability cases, the plaintiff is obliged to produce evidence reasonably leading to the conclusion that the defendant has supplied a product which is defective and that this defect has caused injury to the plaintiff.Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 96, 98, 133 N.W.2d 129(1965).In this case Ford contends that Snider's proofs are deficient because he failed to offer any evidence of a particular malfunction in the braking system.

The relatively new and rapidly developing genre of products liability law rests on a policy giving the consumer a legally-enforceable right, as against the manufacturer, to proceed on the assumption that the product will serve in normal use without causing injury.Generally speaking, a product is defective if it does not fulfill this assumption.

This does not mean that the concept of fault has been abolished so that manufacturers become insurers; the term 'defect' marks off the zone of the manufacturer's responsibility.Piercefield v. Remington Arms Co., Inc., Supra, p. 98, 133 N.W.2d 129.

A demonstrable malfunction is generally clear evidence of a defect, but the legal conclusion that a product is defective may follow from circumstantial evidence without the need physically to exhibit the loose bolt or structural weakness.

In Bronson v. J. L. Hudson Co., 376 Mich. 98, 102, 135 N.W.2d 388(1965), the Michigan Supreme Court reversed a directed verdict for the defendant where the plaintiff's only proof that a lady's slip purchased from defendant caused her severe dermatitis was negative, aimed at eliminating other factors.The Court did not require a showing of a particular defect in the slip.Mr. Justice Otis M. Smith, writing for four members of the Court, said that, 'a legitimate inference from plaintiffs' proofs was that an irritant was present in the cloth, which irritant caused' the injury.Similarly, in Schedlbauer v. Chris-Craft Corp., 381 Mich. 217, 160 N.W.2d 889(1968), the plaintiff was unable to show the defect directly by introducing the fuel pump diaphragm into evidence and was allowed to prove by expert testimony and inference that an explosion aboard his boat was caused by the diaphragm's failure.

An example of a similar approach in other jurisdictions is Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 409--411; 161 A.2d 69, 98--99;75 A.L.R.2d 1(1960), a leading case in the area of products liability often cited by Michigan courts with approval.In that casethe plaintiff's evidence of a defect was a sharp noise and loss of steering control.The collision damage made it impossible to show a particular malfunction of the steering system.Nevertheless, the New Jersey Supreme Court held that the defect could be inferred from the behavior of the steering system.⁵

Vandermark v. Ford Motor Co., 61 Cal.2d 256; 37 Cal.Rptr. 896; 391 P.2d 168

(1964), also illustrates the difference between proving a particular malfunction and proving a defect.In this brake-failure case, the plaintiff offered several theories for the failure but was unable to prove the nature of the malfunction which had occurred.The California Supreme Court, nevertheless, ruled that it was for the jury to decide whether there was a defect.

Our Court has declared that a product is defectively designed if the product is not 'reasonably safe for the purposes for which it is intended.'⁶We see no reason why a design defect, like a defect in manufacture, may not be proved by circumstantial evidence.

Snider purchased his truck in January, 1966.In March of that year he and his truck began a long and rather frustrating course of dealing with defendant Thibodeau.On eight separate occasions Snider reported a variety of brake difficulties to Thibodeau and repairs were made.On the last visit, two days before the accident, Thibodeau's service manager was sufficiently concerned to seek advice from a Ford service representative.The Ford representative advised that heavy duty brakes were required for the use to which the truck was being put.Snider declined to have this new braking system installed.

Snider testified that the brakes failed completely on July 2, 1966.His testimony was corroborated by William Aull, who examined the truck shortly after the accident in his capacity as claims adjuster for Snider's automobile insurer and found that the brake pedal went to the floorboard without resistance.Their testimony was challenged by John Terrell, who also examined the truck and testified that his examination of the brake pedal indicated that it worked properly.Of course, it is a jury question whether a failure in fact occurred.

The evidence, including especially the testimony concerning the recommendation of Ford's service representative, tended to establish that the braking system supplied by Ford for plaintiff's truck was insufficient for the use to which the truck was being put.

On the question whether that use was a normal use, the defendants introduced evidence from which a jury could properly conclude that Snider had subjected the truck to excessive use.A manufacturer's liability does not extend to injuries caused by abuse of the product.⁷A manufacturer may at the time of sale expressly limit, within reason, a vehicle's normal use by establishing load and use limitations.⁸

In this case, however, it is not claimed that Snider violated such an express limitation.Therefore, the question of whether his use of the truck was excessive is to be judged by the traditional reasonableness test.The question of whether his use of the truck was a normal use, a use for which the truck was intended, could not properly be decided as a question of law, and was for the jury to decide.

Ford argues that only by conjecture could a jury find that there was a defect in the braking system or that any such defect was attributable to it rather than defendant Thibodeau or Snider.⁹

In many cases it will be necessary to show a particular defect.In Meli v. General Motors Corp., 37 Mich.App. 514, 195 N.W.2d 85(1972), the plaintiff could show only that the accelerator spring in his automobile had become disconnected, but could not show any manufacturing defect which could have caused the spring to become disconnected.Since there were any number of possible explanations for a disconnected spring, we held that a directed verdict in defendant's favor was proper.

In Meli, however, a case of 'brake mechanism' failure was expressly distinguished.More importantly, there is in this case circumstantial evidence in the truck's service history of an inherent defect in the braking system which was not present in Meli.The rule on conjectural cause does not preclude the establishment of a products liability claim with circumstantial evidence.¹⁰The numerous and continuing problems and the description by Ford's representative of the brake system as inadequate bespeak problems stemming from manufacture or design or--as Ford contends--misuse, rather than maintenance, factors not present in a sudden isolated failure such as occurred in Meli.Snider's theory here does have 'selective application' to a defective braking system as the cause of the accident.¹¹

Were a jury to decide that the wrong to Snider had been established, the question to which of two possible tortfeasors--Ford or Thibodeau--liability should be assigned does not pose an issue of conjectural cause.

True, the burden of proving which of two possible wrongdoers is responsible is generally assigned to the plaintiff.The courts have, however, shown a willingness to consider special circumstances when allocating the...