Stambaugh v. Chrysler Corp.

• Decision Date: 17 March 1980
• Docket Number: Docket No. 78-3376
• Citation: 96 Mich.App. 166,292 N.W.2d 510
• Parties: James S. STAMBAUGH and Muriel L. Stambaugh, his wife, Plaintiffs-Appellants and Cross-Appellees, v. CHRYSLER CORPORATION, Defendant-Appellee. MYR SHEETMETAL COMPANY, Defendant, Third Party Plaintiff-Appellee and Cross- Appellant, v. HOYT, BRUMM AND LINK and J. A. Fredman, Inc., Third Party Defendants and Cross-Appellees. 96 Mich.App. 166, 292 N.W.2d 510
• Court: Court of Appeal of Michigan — District of US

Page 510

292 N.W.2d 510

James S. STAMBAUGH and Muriel L. Stambaugh, his wife, Plaintiffs-Appellants and Cross-Appellees, v. CHRYSLER CORPORATION, Defendant-Appellee.

MYR SHEETMETAL COMPANY, Defendant, Third Party Plaintiff-Appellee and Cross- Appellant, v. HOYT, BRUMM AND LINK and J. A. Fredman, Inc., Third Party

Defendants and Cross-Appellees.

Docket No. 78-3376.

96 Mich.App. 166, 292 N.W.2d 510

Court of Appeals of Michigan.

March 17, 1980.

Released for Publication May 28, 1980.

[96 MICHAPP 168] Erick J. McCann, Bloomfield Hills, for plaintiffs-appellants and cross-appellees.

Jeremiah J. Kenney, Detroit, for defendant-appellee.

William J. Heaphy, Holland, for Myr Sheetmetal.

William G. Jamieson, Southfield, for Hoyt, Brumm & Link.

Sandra A. Prokopp, Birmingham, for J. A. Fredman, Inc.

Before KELLY, P. J., and BRONSON and RILEY, JJ.

KELLY, Presiding Judge.

Plaintiffs, James and Muriel Stambaugh, brought a negligence action against Chrysler Corporation and Myr Sheetmetal Company (Myr) claiming damages as a result of injuries sustained by plaintiff James Stambaugh (hereinafter plaintiff), a 59-year old pipefitter, when he fell from a catwalk at the Chrysler Dodge Truck Plant in Warren, Michigan on November 30, 1973. Myr was the general contractor hired by Chrysler [96 MICHAPP 169] for the installation of paint drying equipment. Based upon an indemnification agreement, Myr impleaded third-party defendant Hoyt, Brumm and Link, the subcontractor which employed James Stambaugh. Myr also impleaded J. A. Fredman, Inc., the subcontractor responsible for construction of the catwalk, claiming a right to contribution. In the principal action a jury verdict was returned in favor of plaintiffs and against Myr only in the amount of $8,000. The jury also returned a verdict of no cause of action against Myr and in favor of third-party defendants Hoyt, Brumm, and Link and J. A. Fredman, Inc. Plaintiff's motion for new trial was denied without opinion. Plaintiffs appeal as of right, and Myr has filed a cross-appeal.

Mr. Stambaugh was working as a pipefitter at the time the accident occurred. After removing a section of pipe from the pipe machine, he knelt and fell from the catwalk, which was not equipped with guardrails. Myr raised contributory negligence as a defense asserting that alternative, safer routes of transporting the pipe were available and known to plaintiff. Mr. Stambaugh's foreman, Cyril Kruger, testified that plaintiff had complained about the lack of guardrails and that, he, Kruger, had directed plaintiff where to work on the morning of the accident.

The depositions of three physicians were admitted into evidence and read to the jury. Dr. Stanco Stanisavljevic, an orthopedic surgeon, examined the plaintiff after the accident and diagnosed two fractured vertebrae, multiple broken teeth, and facial abrasions. Severe back pain necessitated two subsequent hospitalizations, and plaintiff has not returned to work since November 24, 1975. In Dr. Stanisavljevic's opinion, plaintiff will require future medical treatment. William F. Veling, M. D., an occupational medicine specialist, testified by [96 MICHAPP 170] deposition that all injuries sustained by Stambaugh could be the result of the fall. In his opinion, Stambaugh is completely and permanently disabled. Dr. William Salot testified by deposition that plaintiff's back problems may be partially attributed to a congenital swayback tendency and degenerative arthritis. Dr. Salot opined that any continuing disability is related to these conditions, whereas Dr. Stanisavljevic testified that plaintiff's continuing problems could have been aggravated by the accident and trauma to the spine. At trial, plaintiffs introduced evidence of medical expenses, including hospital and physician fees, oral surgery costs and orthopedic appliances, in the amount of $5,138. Plaintiffs further claimed $197,680 in lost wages. Defendants denied liability, damages and the characterization of plaintiff's disability as being total and permanent.

In its charge to the jury, the trial court gave the following instructions concerning negligence and the defense of contributory negligence:

"The law places ultimate responsibility for job safety in common work areas on the general contractor.

"If you find that the general contractor, Myr Sheet Metal Company, failed in its duty to implement the necessary precautions and provide the necessary safety equipment in the area where the Plaintiff was working, and if you find such to be a common work area, then Myr Sheet Metal Company is liable for all damages suffered by the Plaintiff proximately resulting from said failure, unless you find Plaintiff was contributorily negligent.

"In this case, it was the duty of Myr Sheet Metal Company to provide proper supervision and inspection as was necessary, and to stop work or order changes if it saw, through its agents or employees, an obviously dangerous situation to exist.

"It was the duty of Myr Sheet Metal Company to [96 MICHAPP 171] provide adequate safety precautions to protect the Plaintiff from harm.

"The scope of the general contractor's responsibility will often depend on the nature of the risk and of the precaution or safeguard claimed to have been needed.

"Designation of Myr Sheet Metal as general contractor is not alone determinative of the issue of control and responsibility.

"If you find that Plaintiff unnecessarily exposed himself to risks by choosing a hazardous work area over a safe work area you may find the Plaintiff guilty of contributory negligence.

"Your verdict as to the Plaintiff's claim, will be for the Plaintiff, if the Plaintiff, Mr. Stambaugh, was injured, the Defendant was negligent this will apply to each of the Defendants that the Defendant was negligent, and that the Defendant's negligence was a proximate cause of the Plaintiff's injuries and damages; unless Plaintiff, Mr. Stambaugh, himself, was negligent and such negligence proximately contributed to his injury and damages.

"Your verdict will be for the Defendants, this will apply to each of the Defendants, separately, if the Plaintiff was not injured, or damaged, or if that Defendant was not negligent, or if negligent, such negligence was not a proximate cause of the Plaintiff's injuries or damages, or if the Plaintiff, himself, was negligent and such negligence was a proximate contributing cause of his injuries and damages."

We agree with plaintiff that the trial court erred in instructing the jury that a finding of contributory negligence bars recovery. Contributory negligence is not an...