Williams v. Detroit Edison Co., Docket No. 19452

• Citation: 63 Mich.App. 559,234 N.W.2d 702
• Decision Date: 25 August 1975
• Docket Number: Docket No. 19452
• Parties: Rosalind WILLIAMS, Individually and as Administratrix of the Estate of Rolyn Duane Williams, Deceased, Plaintiff-Appellant, v. The DETROIT EDISON COMPANY, a Mchigan Corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 702

234 N.W.2d 702

63 Mich.App. 559

Rosalind WILLIAMS, Individually and as Administratrix of the Estate of Rolyn Duane Williams, Deceased Plaintiff-Appellant, v. The DETROIT EDISON COMPANY, a Mchigan Corporation, Defendant-Appellee.

Docket No. 19452.

Court of Appeals of Michigan.

Aug. 25, 1975.

Released for Publication Nov. 10, 1975.

Leave to Appeal Denied Dec. 2, 1975.

Levine & Benjamin, P.C. by Alvin L. Levine, Detroit, for plaintiff-appellant.

Fischer, Franklin & Ford by William C. Potter, Jr., Detroit, for defendant-appellee.

Before ALLEN, P.J., and BRONSON and KAUFMAN, JJ.

ALLEN, Judge.

On December 12, 1973, the jury in a five-to-one decision returned a verdict of no cause of action in favor of defendant in this wrongful death action in which plaintiff sought damages to compensate for the loss of her husband who was killed when defendant's power line was knocked down and fell on decedent. Previous to trial, the trial court granted defendant's motion for partial summary judgment on the grounds that plaintiff's counts sounding in breach of warranty and strict liability failed to state claims upon which relief could be granted. GCR 1963, 117.2(1). Subsequently to trial, plaintiff's motion for a new trial was denied on January 25, 1974, and plaintiff has appealed.

Rolyn Duane Williams, the deceased, was an employee of the F. J. Siller Company, which on June 14, 1971, was constructing a water line on Joy Road near Haggerty Road. Defendant's overhead electrical power lines ran along the north side of Joy Road, and the incident out of which the case arises occurred at a point five poles east of Haggerty Road. There, the 7600-volt power line crossed Joy to a pole on the south side of the street, and ran from a transformer on that pole to a small home. The testimony reveals that the Siller Company often worked near or under power lines, and John R. Siller, the company's vice-president, testified that between 45 to 55 per cent of the company's projects occurred near power lines.

At about 5:45 p.m., on the day in question, the deceased, foreman of the construction crew, was working on a water pump on the north side of the recently excavated ditch. A back hoe was used to dig the hole, and it then swung around and deposited the soil into a truck. In the course of doing so, the machine's 'boom' struck the power line, which then fell onto a generator located near deceased and a fellow worker. The wire 'jumped' off the generator, struck the deceased and electrocuted him.

The first part of this opinion deals with that portion of plaintiff's claim taken from the jury by the trial court, Viz.: defendant's liability in tort under the doctrines of strict liability or implied warranty. The second portion of the opinion concerns the negligence portion of the case, namely, the various jury instructions pertaining to defendant's standard of care regarding insulation, duty to warn, and safety of design.

I.

Pursuant to an examination of Buckeye Union Fire Insurance Co. v. Detroit Edison Co., 38 Mich.App. 325, 196 N.W.2d 316 (1972), plaintiff filed an amended complaint on September 20, 1973, and alleged that defendant had breached its implied warranty of fitness and merchantability that the electricity would be despersed and serviced in a merchnantable quality and that it would be located in a proper and safe fashion. Further, plaintiff alleged that there was an implied warranty that the service of electricity would be rendered in a proper manner and that defendant had breached this warranty. Further, plaintiff alleged that the electricity was an unreasonably dangerous product or service, and that it presented an unreasonable danger to plaintiff's decedent and that therefore defendant was strictly liable for the damages caused thereby. After argument November 15, 1973, at which time defendant argued that plaintiff failed to state a cause of action on the above two grounds becuase there had not been a sale of the electricity, the trial court agreed and granted the motion for partial summary judgment. The trial court stated that there was no sale of electricity until it had passed through the transformer and household meter, and rejected plaintiff's argument that a sale was unnecessary.

On appeal, plaintiff argues that plaintiff was deprived of two-thirds of her claim when the trial court allowed the jury to only consider the issue of negligence; that a sale was not necessary to create the imposition of liability based upon breach of warranty or strict liability, and that the concept of privity is irrelevant in a tort action. On the other hand, defendant relies upn M.C.L.A. § 440.2314; M.S.A. § 12.2314, for the proposition that there must be a sale or transfer of the product before liability based upon breach of warranty could be imposed. Defendant argues that the electricity never left defendant's control and that there would be a sale of the power only after it had reached the household meter located across the street from where plaintiff's decedent met his death.

At the outset of our discussion, we note that the 'product' involved in this case is not a tangible item like an automobile, punch press or Coca-Cola bottle. Rather, it is a form of energy which in this case consisted of 7600 volts traveling in an uncovered line about 28 feet above the ground. Electricity is a service rather than a 'good,' but the doctrine of implied warranty has been held to apply to its sale. Buckeye Union Fire Insurance Co. v. Detroit Edison Co., 38 Mich.App. 325, 329, 196 N.W.2d 316 (1972). Our Court has noted that Buckeye did not definitively limit the application of implied warranty, and has applied this concept to the manner in which some electrical wiring and its attendant hardware were installed. Insurance Co. of North America v. Radiant Electric Co., 55 Mich.App. 410, 412, 222 N.W.2d 323, 325 (1974), Lv. den., 393 Mich. 763 (1974). Thus, the doctrine of implied warranty in tort is applicable to the installation and delivery of electrical services, and it is our task to determine whether it is applicable to the instant situation.

The Uniform Commercial Code, which defendant relied upon, is inapplicable to a tort action alleging a breach of implied warranty. INA v. Radiant Electric Co., supra, 55 Mich.App. at 412, 222 N.W.2d at 324--325 (1974); Cova v. Harley Davidson Motor Co., 26 Mich.App. 602, 613, 182 N.W.2d 800 (1970). Plaintiff's suit is grounded in tort, rather than contract, and the warranty is implied in fact or in law rather than pursuant to a contract. 2 Frumer and Friedman, Products Liability (1975 ed.), § 16.01(1) pp. 3--4 and 3--7. Comment, Products Liability in Michigan: Implied Warranty, Strict Tort, or Both? 15 Wayne L.Rev. 1558, 1564, 1571 (1969). Privity of contract is an irrelevant consideration in a case based upon a tortious breach of warranty or strict liability in tort. Hill v. Harbor Steel & Supply Corp., 374 Mich. 194, 202, 132 N.W.2d 54 (1965), and Piercefield v. Remington Arms Co., 375 Mich. 85, 98, 133 N.W.2d 129 (1965). See also Gutowski v. M & R Plastics & Coating, Inc., 60 Mich.App. 499, 506--507, fn. 3, 231 N.W.2d 456 (1975). Piercefield allowed recovery for breach of warranty in which a bystander was injured when defendant's product exploded. Clearly, there was no sale to that bystander. Also, Hill allowed an employee to recover where there was no sale of a good to the employee.

Having determined that the doctrine of implied warranty in tort applies to a 'products' liability case involving electricity, and that the UCC and other contractual concepts to not apply to such a case, we must now determine the elements of this cause of action. Generally, plaintiff must prove that there was a defect in the electricity 'at the time it left the manufacturer', and that this defect was a proximate cause of plaintiff's damages. Buckeye Union, supra, 38 Mich.App. at 330, 196 N.W.2d at 318. The manufacturer's standard of care, while a relevant factor in a negligence suit, is inapplicable to a warranty action, and Buckeye's recital of the elements of such a suit comports with the general rule in this area of the law. See 2 Frumer and Friedman, Products Liability, § 16.03(4), p. 3--53; Snider v. Bob Thibodeau Ford, Inc., 42 Mich.App. 708, 713, 202 N.W.2d 727 (1972) (relying upon Piercefield, supra).

We have seen that plaintiff alleged that defendant was also liable under the doctrine of strict liability. A contractual defense such as lack of privity is inapplicable to such a suit, and a non-purchasing bystander generally is allowed to recover under this theory. 2 Frumer and Friedman, Products Liability, § 16A(5), p. 3--345, and Anno: Products Liability: Extension of strict liability in tort to permit recovery by a third person who is neither a purchaser nor user of product, 33 A.L.R.3d 415, § 3, p. 419. ¹

In a strict liability in tort case, plaintiff must prove the presence of a defect and that this defect caused plaintiff's injury. Defendant's negligence is irrelevant. 2 Frumer and Friedman, Products Liability, § 16A(4)(e), p. 3--304. Generally, the defective condition of the product must render that product unreasonably dangerous to plaintiff. 63 Am.Jur.2d, Products Liability, § 132, p. 138. Further, the doctrine of strict liability generally only applies if the defect 'was present when the product left the hands of the seller or manufacturer * * *'. Anno: Products liability: Proof, under strict tort liability doctrine, that defect was present when products left hands of defendant, 54 A.L.R.3d 1079, § 1, p. 1082. Although the latter failed to include in its discussion cases dealing with implied warranty, it noted that the application of the doctrine of implied warranty may have the same or substantially the same results as applying the doctrine of strict tort liability. 54 A.L.R.3d at 1083.

Regardless of whether the tortious conduct is labeled a breach of warranty or whether the claim is...