Burnett v. MacKworth G Rees, Inc

311 N.W.2d 417, 109 Mich. App. 547
CourtMichigan Court of Appeals
DecidedSeptember 21, 1981
DocketDocket 46351
StatusPublished
Cited by23 cases

This text of 311 N.W.2d 417 (Burnett v. MacKworth G Rees, Inc) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnett v. MacKworth G Rees, Inc, 311 N.W.2d 417, 109 Mich. App. 547 (Mich. Ct. App. 1981).

Opinions

N. J. Kaufman, J.

Defendant Cutler-Hammer appeals from the Oakland County Circuit Court’s denial on July 6, 1979, of its motions for judgment notwithstanding the verdict, new trial and remittitur. The motions were brought after a jury trial at which the jury returned a verdict of 1.5 million dollars in favor of plaintiff and against defendants Cutler-Hammer and Verson Allsteel, apportioned 95% and 5% respectively. The verdict as to defendants Mackworth G. Rees, Inc., and Rees, Inc., was no cause of action. Defendant Cutler-Hammer brings this appeal as of right, pursuant to GCR 1963, 806.1.

On May 16, 1974, while working as a press operator at Flanders Industries in Fort Smith, Arkansas, plaintiff lost four fingers on her left hand when a press malfunctioned, crushing her [550]*550hand. At the time of the accident, plaintiff was 19 years old and had a life expectancy of 51 years.

There was considerable testimony as to the effect of the injury on plaintiffs lifestyle. In addition to the severe limitations on plaintiffs simple manual activities, this testimony revealed that since the accident, plaintiff has progressively withdrawn from public life.

Plaintiff has been disqualified from enlistment in the U.S. Navy because of her handicap. She applied for a position at General Electric for which she was more than qualified. However, at her interview, the company told her "they didn’t want to talk to [her] anymore”.

Plaintiff is presently studying to be an electronics technician. However, a rehabilitation specialist who gave plaintiff a finger/hand dexterity test concluded that plaintiff has a severely diminished capacity to perform the work of her chosen field. This specialist further testified that it was his opinion that plaintiff will have substantial difficulty in obtaining a job as an electronics technician or in retaining such a job.

Verson Allsteel manufactured the press involved in the instant case. Various portions of the press were furnished by Cutler-Hammer. The palm buttons were furnished to Verson by Cutler-Hammer but were manufactured by Mackworth G. Rees, Inc.

The press was equipped with dual palm buttons. The press would not operate unless both buttons were depressed. The dual palm system was considered to be a safety feature because a worker’s hand could not be in the area being pressed, since both hands had to be on the palm buttons.

Cutler-Hammer had ordered the palm buttons from a Rees catalogue and Cutler-Hammer deter[551]*551mined their use. Cutler-Hammer designed the circuitry to be used in the palm button which would be incorporated in the press to be manufactured by Verson Allsteel. Verson Allsteel had no significant electrical design staff.

Plaintiff had been taught to operate the machine by picking up a piece of metal with her right hand, placing it in the die area, pressing the palm buttons with both hands, waiting until the die had come down and gone up, then reaching in with her left hand to retrieve the piece. When the accident occurred, plaintiff was reaching with her right hand to get another piece when the right hand palm button fell off. The slide then came down on her left hand and crushed it. After plaintiff jerked her hand out, the press continued cycling up and down.

An officer of Mackworth Rees testified as to the construction and normal operation of the press. He testified that the mushroom portion of the palm button sits on a shaft. A cotter pin is on the shaft to keep the contact discs on the shaft. When this cotter pin is removed, the machine is subject to stress and may fracture. Removal of the cotter pin takes place when the palm button contacts are cleaned by the press owner. If the cotter pin has been removed or bent, the fatigue potential of the metal increases. If the cotter pin fails, it is possible that the circuits could run and be energized, causing the press to trip. The officer of Mackworth Rees testified that an isolated contact would be safer to use than the two contact discs because in the event of a failure, the contacts would still be separate.

A Verson Allsteel employee testified that, at the time the press involved in the instant case was manufactured and sold, Verson bought the con[552]*552trols from Cutler-Hammer and relied entirely on Cutler-Hammer’s expertise.

A retired Cutler-Hammer employee testified that good engineering practice did not dictate examining component parts which were standardized and purchased from other manufacturers.

Professor John Carey, Professor Emeritus of Electrical Engineering at the University of Michigan, testified on behalf of plaintiff. He testified that an electrical design engineer should have been aware of the need for isolated contacts. In his opinion, the malfunction of the press was a foreseeable situation for a design engineer to apprehend and guard against. Professor Carey testified that a failure mode analysis should have been made on the circuit before it was supplied to any users.

On appeal, defendant Cutler-Hammer raises three issues, only one of which merits extended discussion. Defendant argues that the trial court abused its discretion in denying defendant’s motion for a new trial or remittitur on the grounds of an excessive verdict of 1.5 million dollars for an injury involving the loss of four fingers.

In reviewing the decision of a trial judge to either grant or deny a remittitur or a new trial, this Court must determine whether or not there has been an abuse of discretion. Pippen v Denison Division of Abex Corp, 66 Mich App 664; 239 NW2d 704 (1976), lv den 399 Mich 823 (1977). Where there are no other errors in the trial, remittitur can be ordered only if the verdict is so excessive as to "shock the judicial conscience”. Id., 674.

A perusal of the cases discussing excessive verdicts discloses no mandatory approach for determining what amount in the context of a particular [553]*553set of facts will "shock the judicial conscience”. In Pippen, the plaintiff lost an arm in an accident very similar to that involved in the instant case. The jury returned a verdict of $1,250,000 for the plaintiff. This Court held that this amount was not excessive.

While the plaintiff in Pippen lost his entire arm, Mr. Pippen at the time of his injury was 67 years old, while the plaintiff in the instant case was only 19 when she lost her fingers. Mr. Pippen’s life expectancy was 14 years; plaintiff Burnett’s was 51 years.

In Tomei v Bloom Associates, Inc, 75 Mich App 661; 255 NW2d 727 (1977), the jury awarded $250,-000 to the plaintiff who, as a result of dental malpractice, was injured to the extent that an area of her lower lip, about the size of a quarter, was permanently numb. This Court, in ordering remittitur, emphasized the relative lack of seriousness of the injury. The Court noted that there was neither disfigurement nor loss of a part of the body. The only actual effect on plaintiff’s life as a result of the injury was a feeling of self-consciousness when eating and testimony that she felt differently about kissing her husband.

Defendant argues that a significant similarity between Tomei and the instant case is that the jury award greatly exceeded the ad damnum clauses in both cases. Defendant emphasizes the amount requested in plaintiff Burnett’s ad damnum

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Burnett v. MacKworth G Rees, Inc
311 N.W.2d 417 (Michigan Court of Appeals, 1981)

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Bluebook (online)
311 N.W.2d 417, 109 Mich. App. 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnett-v-mackworth-g-rees-inc-michctapp-1981.