Warner v. General Motors Corp.

• Decision Date: 09 November 1984
• Docket Number: Docket No. 64108
• Parties: Tim P. WARNER and Nancy K. Warner, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION and Jim Vetter Chevrolet, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 689

357 N.W.2d 689

137 Mich.App. 340

Tim P. WARNER and Nancy K. Warner, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION and Jim Vetter Chevrolet,

Defendants-Appellees.

Docket No. 64108.

Court of Appeals of Michigan.

Submitted Feb. 8, 1984.

Decided July 10, 1984.

Released for Publication Nov. 9, 1984.

Philo, Atkinson, Steinberg, Walker & White by Richard L. Steinberg, Detroit, for plaintiffs-appellants.

Dykema, Gossett, Spencer, Goodnow & Trigg, by Donald E. Shely and Daniel F. Stella, Detroit, and Horace W. Adams, and John P. Raleigh, Detroit, of counsel, for General Motors Corp.

Before CYNAR, P.J., and J.H. GILLIS, ANDERSON ^*, JJ.

PER CURIAM.

Plaintiffs appeal as of right from a June 26, 1981, jury verdict of no cause of action in favor of both defendants. While the jury found General Motors Corporation (GM) to be negligent, it determined that its negligence was not a proximate cause of plaintiff Tim Warner's (plaintiff's) injury. The jury also found that Jim Vetter Chevrolet (Vetter), did not breach any implied warranty.

Plaintiffs purchased a new 1972 Chevrolet Vega from Vetter during May, 1972. GM had marketed the Vega as being designed for the consumer who cared to do his or her own routine maintenance. The Vega came equipped with a "do-it-yourself" service manual. On June 18, 1974, plaintiff changed the oil in the Vega and left the car running while he cleaned up. The car stopped running and he could not restart it. He referred to the do-it-yourself manual but could not ascertain the problem. Plaintiff attempted to "prime" the car by pouring gasoline into the carburetor but still could not get it started.

On June 27, 1974, the car was towed to plaintiff's father-in-law's home to facilitate repair. At one point, plaintiff again "primed the car" by pouring gasoline from a quart jar into the carburetor. The carburetor evidently backfired, spitting flame which followed the gas back into the jar. Gas spilled on plaintiff's shirt, and it ignited. When plaintiff could not remove his burning shirt, he ran down to a lake behind his father-in-law's house, and dove into the water. The water was very shallow and his face hit the bottom of the lake, breaking his neck. Plaintiff was not burned as a result of the accident but was rendered quadriplegic.

It was subsequently determined that plaintiff had tripped an oil pressure switch while changing the oil in the car. The oil pressure switch was a safety device intended to stop the flow of gasoline from the fuel pump to the engine when the engine oil pressure became too low. This information about the switch was apparently not included in the do-it-yourself manual.

Due to the design of the carburetor, operation of the car without the air filter posed a significant fire hazard. This fact was contained in the 1971 owner's manual and the first and third editions of the 1972 owner's manual. The second edition published in 1972, however, did not contain this warning and was the one supplied with plaintiffs' Vega. Plaintiff conceded that the manual referred him to a dealer when the car would not start and that priming the carburetor was his own idea.

On appeal, plaintiffs challenge various aspects of the court's jury instruction and its refusal to admit five of their proposed exhibits while permitting defendants to argue and present evidence on their theory that plaintiff was careless and would have disregarded any warning. Also, plaintiffs allege that defendant GM made numerous attempts to prejudice the jury throughout the trial.

Plaintiffs' first allegation of error is premised upon the trial court's refusal to give their requested instructions concerning proximate causation. ¹ The trial court's instruction on proximate causation was drawn directly from SJI2d 15.01 and 15.02. After deliberating for a short period of time, the jury sent a note to the court stating: "We would like the exact definition of proximate cause." The trial court responded by rereading SJI2d 15.01. Both 15.01 and 15.02 have been recognized as being a correct and proper statement of the law in Michigan. Stephens v. Spiwak, 61 Mich.App. 647, 651, 233 N.W.2d 124 (1975); Thornton v. City of Flint, 39 Mich.App. 260, 269, 197 N.W.2d 485 (1972). Cf. Zeni v. Anderson, 397 Mich. 117, 127, 243 N.W.2d 270 (1976); Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441, 480, 208 N.W.2d 469 (1973).

GCR 1963, 516.6(2) requires that an applicable standard jury instruction be given when the instruction is properly requested and an evidentiary basis for the request can be found in the record. Javis v. Ypsilanti Bd. of Ed., 393 Mich. 689, 697-698, 227 N.W.2d 543 (1975); Johnson v. Corbet, 127 Mich.App. 804, 807-808, 339 N.W.2d 648 (1983). Deviation from an applicable and accurate standard jury instruction gives rise to the presumption of prejudicial error provided that the instruction was properly requested at trial. Javis, supra, 393 Mich. 702, 227 N.W.2d 543. However, a trial judge must still use discretion to determine whether an instruction is factually appropriate and accurately states the law. Socha v. Passino, 405 Mich. 458, 467, 275 N.W.2d 243 (1979). A trial court's refusal to give a certain requested instruction is not error where the instruction given clearly states the applicable law. Basic Food Industries, Inc. v. Grant, 107 Mich.App. 685, 696, 310 N.W.2d 26 (1981).

While the trial court in the present case refused to include plaintiffs' requested instruction in its charge to the jury, the instruction which was given regarding proximate cause accurately stated the applicable law. No error resulted from the trial court's denial of plaintiffs' request.

Plaintiffs also argue that the trial court improperly charged that plaintiffs were required to prove that any defect in the product was known to, or readily ascertainable by, defendant Vetter before they could recover for breach of implied warranty against Vetter. The court instructed as follows:

"I charge you members of the jury, as the seller of the 1972 Chevrolet Vega, which is the subject of this lawsuit, the defendant, Jim Vetter Chevrolet, owed a duty to plaintiffs to protect and/or warn for any known or visible defects that were readily ascertainable; or, stated in a different way, owed no duty for any defects that were hidden or unknown to the seller."

The instruction given states the generally accepted rule regarding a manufacturer's or seller's duty to warn. Bradbury v. Ford Motor Co., 123 Mich.App. 179, 186, 333 N.W.2d 214 (1983); see also, Camden Fire Ins. Co. v. Peterman, 278 Mich. 615, 618-619, 270 N.W. 807 (1937); Losinski v. Ford Motor Co., 43 Mich.App. 114, 121-122, 204 N.W.2d 49 (1972). The instruction accurately stated Vetter's duty to warn.

Plaintiffs' remaining challenges to the court's charge merit little discussion. The record does not disclose that plaintiffs requested the trial court to instruct the jury that assumption of risk is not recognized as the law of Michigan. While they did complain during defense counsel's opening statement, they did not pursue their request for an appropriate jury instruction. Therefore, they have waived the right to complain on appeal that the instruction should have been given by the trial court. Perry v. Hazel Park Harness Raceway, 123 Mich.App. 542, 332 N.W.2d 601 (1983); GCR 1963, 516.1.

The trial court also properly refused plaintiffs' request to charge the jury regarding expert witness evidence. Wilson v. Stilwill, 411 Mich. 587, 603-605, 309 N.W.2d 898 (1981); Wolak v. Walczak, 125 Mich.App. 271, 275, 335 N.W.2d 908 (1983). As in those cases, defense counsel's reference to one of plaintiffs' experts as a "professional witness" was brief and singular. Further, counsel was immediately interrupted by plaintiffs' counsel, and the trial court immediately reminded the jury that defense counsel was only giving an opinion. There was no harassment or belittlement of plaintiffs' expert on the part of defense counsel. Wolak, supra, 125 Mich.App. 275, 335 N.W.2d 908.

Plaintiffs next challenge a number of the trial court's evidentiary rulings. Plaintiffs' case was premised upon defendants' duty to warn Tim Warner against the danger of operating the Vega without the air filter being in place. Defendants sought to counter with evidence that plaintiff habitually ignored warnings and was careless while handling gasoline. As part of its case, GM's counsel was permitted to cross-examine Mrs. Warner about whether her husband drank or smoked cigarettes in the evening, stored gasoline in the shed, and how he handled gasoline generally. Plaintiff was also cross-examined, over objection, concerning whether he poured gasoline into a heated power mower or smoked while filling the gas tank of his car. Plaintiff was questioned about his smoking habits on the evening of the incident and in general. Defense counsel also asked questions concerning the method used to syphon gas from the tank of the Vega in preparation for changing the fuel pump. Questions were also asked relating to other warnings contained within the owner's manual. These included questioning plaintiff about whether he used a seatbelt or removed the battery cables from the battery before jacking up the front end of the car.

In order to recover on a failure to warn theory, a plaintiff must prove each of the four elements of negligence: (1) that defendant owed a duty to plaintiff; (2) that defendant violated that duty; (3) that defendant's breach of duty was a proximate cause of the damages suffered by plaintiff; and (4) that plaintiff suffered damages. Falkner v. John E. Fetzer, Inc., 113 Mich.App. 500, 503, 317 N.W.2d 337 (1982); Beals v. Walker, 98 Mich.App. 214, 224, 296 N.W.2d 828 (1980). In Falkner, this Court found a defendant was entitled to a directed verdict because the plaintiff failed to present any evidence to show that, if a proper warning had been given, she would have taken precautions to...