Swartz v. Dow Chemical Co.
| Decision Date | 05 February 1980 |
| Docket Number | Docket No. 78-4639 |
| Citation | 290 N.W.2d 135,95 Mich.App. 328 |
| Parties | William L. SWARTZ, Administrator of the Estate of Brian L. Swartz, Deceased, and William Swartz and Anna Swartz, Individually, Plaintiffs-Appellants, v. DOW CHEMICAL COMPANY and McKesson Chemical Company, Defendants-Appellees. 95 Mich.App. 328, 290 N.W.2d 135, 1980 O.S.H.D. (CCH) 24,357 |
| Court | Court of Appeal of Michigan — District of US |
Robert A. Kaminski, Saginaw, for plaintiffs-appellants.
Frank M. Quinn, James J. Kent, Patrick D. Neering, Bay City, for Dow Chemical Co.
John A. Picard, Saginaw, for McKesson Chemical Co.
Before DANHOF, C. J., and BEASLEY AND CYNAR, JJ.
[95 MICHAPP 330] Plaintiffs' decedent, Brian Swartz, a 19-year-old relatively new employee of Baker-Perkins Co., was killed in an industrial accident on April 25, 1974. His death apparently occurred from asphyxiation when he was cleaning a Gimbal box by applying Dowclene with an atomizer spray gun contrary to advice of his more experienced coemployee. Dowclene is manufactured by defendant Dow Chemical Co., and is distributed by defendant McKesson Chemical Co.
Plaintiffs claim defendants negligently failed to properly label the product and failed to adequately warn of its dangerous propensities. In denying liability, defendants claimed, among other things, that the sole proximate cause of the accident was the negligence of plaintiffs' decedent and of his employer Baker-Perkins Co.
After trial on the merits, the jury rendered a verdict of no cause of action in favor of defendants. [95 MICHAPP 331] Plaintiffs appeal as of right, raising four issues, three of which merit discussion.
First, plaintiffs claim that the trial court erred when it admitted evidence that decedent's employer violated certain Occupational Safety and Health Administration (O.S.H.A.) regulations. Defendant Dow's counsel questioned Basil Hibbard, safety director for Baker-Perkins Co., concerning an investigation into decedent's accident by the State Health Department and by O.S.H.A. Hibbard testified that both the State Health Department and O.S.H.A. issued a citation for violations found. This line of questioning, which was objected to by plaintiffs' counsel, was admitted in support of defendants' affirmative defense that decedent's employer and decedent were the parties responsible for the accident and not defendants.
Plaintiffs cite Wheelock v. Eyl 1 and Kirby v. Larson 2 in support of their claim of error. In Wheelock, the Michigan Supreme Court held "that a criminal conviction after trial, or plea, or payment of fine is not admissible as substantive evidence of conduct at issue in a civil case arising out of the same occurrence". 3 Kirby also was concerned with a civil action arising out of a traffic accident. In Kirby, the question addressed by the Court was whether the issuance of a traffic citation as opposed to a conviction could be admitted into evidence for purposes of proving negligence in a subsequent civil trial. The Court ruled that evidence of the issuance of a traffic ticket may not be admitted. The Kirby Court relied on the reasoning in Wheelock in making its determination that civil and criminal cases involve different considerations[95 MICHAPP 332] and satisfy different policies, and a violation under one does not necessarily mean liability under the other.
Defendants argue that Kirby and Wheelock are factually distinguishable from the instant case as the citations were given to a nonparty to the suit and were not issued by criminal enforcement agencies. We are not persuaded that, for purposes of admissibility in another civil case, a citation by a government agency such as O.S.H.A. is substantially different than a traffic ticket issued by the police. Both would be likely to carry a great deal of weight with a jury. We view both as enforcement agencies, and we reject defendants' argument that they are distinguishable.
Next, we address defendants' contention that since Baker-Perkins, decedent's employer, was not a party to this suit, the holdings in Kirby and Wheelock are inapposite. This argument finds support in Imperial Kosher Catering, Inc. v. Travelers Indemnity Co. 4 In Imperial Kosher Catering, the plaintiff corporation was suing the defendant insurance company for proceeds under a fire insurance policy. As an affirmative defense the defendant argued that the sole shareholders, who were also officers of the plaintiff corporation, had intentionally caused the fire. The trial court permitted the defendant to introduce evidence of a criminal conviction of arson against the two shareholders arising out of this same fire. The Court in Imperial Kosher Catering, while not expressly rejecting the Wheelock doctrine, did criticize the policy of law that would seem to allow convicted persons to profit from their crimes. 5 The Court also distinguished Wheelock on two grounds. The primary [95 MICHAPP 333] ground for distinguishing the holdings was that the arson convictions in Imperial Kosher Catering were not used affirmatively as proof of culpability in trial of a civil action brought against the person convicted in the criminal case. Rather, evidence of the criminal conviction was an operative fact advanced to bar recovery by the plaintiffs.
In the instant case, in answering plaintiffs' complaint, defendants denied any negligence on their parts and, by way of affirmative defenses, charged that plaintiffs' decedent was guilty of contributory negligence and that the negligence of decedent's employer was an intervening cause of decedent's death. The introduction of the employer's violations of O.S.H.A. regulations were admitted in order to bar plaintiffs' recovery. The facts here more closely resemble those set forth in Imperial Kosher Catering than those in Wheelock and Kirby where the liability of the very party against whom the evidence was introduced was the pivotal question for which the prior finding of guilt was to be admitted.
Further, we note that the jury was instructed that there could be more than one proximate cause and that the jury was free to find that even if decedent's employer had some responsibility for the accident, plaintiffs could still recover if defendants also contributed to the occurrence. Under the Court's rationale in Imperial Kosher Catering, we find the admission of O.S.H.A. violation citations to Baker-Perkins for purposes of barring plaintiffs' recovery was not error.
Plaintiffs' next claim of error relates to comments made by counsel for defendant Dow Chemical, which allegedly may have...
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Swartz v. Dow Chemical Co.
...federal standard, the federal standard controls. M.C.L. Sec. 408.1014(2); M.S.A. Sec. 17.50(14)(2).4 Swartz v. Dow Chemical Co., 95 Mich.App. 328, 290 N.W.2d 135 (1980).5 409 Mich. 898 (1980).6 MRE 801(c) provides:" 'Hearsay' is a statement, other than one made by the declarant while testif......