Dooms v. Stewart Bolling & Co.

241 N.W.2d 738, 68 Mich. App. 5, 1976 Mich. App. LEXIS 672
CourtMichigan Court of Appeals
DecidedMarch 23, 1976
DocketDocket 19957, 22207
StatusPublished
Cited by47 cases

This text of 241 N.W.2d 738 (Dooms v. Stewart Bolling & Co.) 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
Dooms v. Stewart Bolling & Co., 241 N.W.2d 738, 68 Mich. App. 5, 1976 Mich. App. LEXIS 672 (Mich. Ct. App. 1976).

Opinions

Allen, J.

The Court is presented with relatively significant questions pertaining to the law of product liability in Michigan. The circumstances foreshadowing this appeal began when plaintiffs, Messrs. Dooms and Sanders, suffered severe hand injuries on a rubber milling machine during the course of their employment at Detroit Rubber Company on 3 June 1969.1 Each plaintiff commenced separate suits against Stewart Bolling and Company (the manufacturer of the machine) and Michigan Mutual Liability Insurance Company (the insurer of plaintiffs’ employer). The cases were subsequently consolidated. Plaintiffs claimed Stewart Bolling was liable on the grounds that the machine did not have adequate safety devices incorporated into the design, and that the safety trip cable on the machine was inaccessible to the operator at critical points. Plaintiffs claimed liability against Michigan Mutual on the theory that it had breached its contract of workmen’s compensation insurance in failing to warn of the unsafe condition of the machine after having undertaken an inspection. Proof was presented on both sides, and the jury returned verdicts against Stewart Bolling — $300,000 for Dooms and $50,000 for Sanders. It rendered a verdict of no cause of action in [10]*10favor of Michigan Mutual. Stewart Bolling moved for a new trial which was denied. Plaintiff Sanders filed motions for additur and new trial. The trial judge ordered defendant Stewart Bolling to stipulate to an additur of $150,000 as to Sanders or proceed to a new trial on the issue of damages. This appeal followed.

I.

Was it reversible error for the trial court in a product liability suit to instruct on strict liability?

Stewart Bolling claims error occurred when the trial judge instructed the jury on three possible theories of recovery: negligence, implied warranty, and strict liability. It argues that our Supreme Court has never suggested that one could recover for personal injury by asserting a claim of strict liability against a manufacturer, and maintains that the instruction on strict liability amounted to directing verdicts for plaintiffs.

Plaintiffs refer the Court to the substance of the instruction. They argue essentially that it isn’t prejudicial error for a trial judge to put a strict liability label on an otherwise recognized cause of action.

It is undisputed that in Michigan a plaintiff may proceed under at least two tortious theories of recovery in product liability: negligence and implied warranty. Spence v Three Rivers Builders & Masonry Supply, Inc, 353 Mich 120, 135; 90 NW2d 873 (1958), Manzoni v Detroit Coca-Cola Bottling Co, 363 Mich 235, 241; 109 NW2d 918 (1961), Kupkowski v Avis Ford, Inc, 395 Mich 155; 235 NW2d 324 (1975). However, the debate continues with respect to whether the product liability theory styled strict liability in tort exists in this state. [11]*11In Baker v Rosemurgy, 4 Mich App 195, 200; 144 NW2d 660 (1966), the Court seems to have recognized the theory:

"Plaintiff’s theory of strict liability in tort falls also. Even if the test set forth in 2 Restatement of the Law of Torts, 2d § 402a, for this special form of liability were applied to a rifle, plaintiff’s own conduct again defeats a cause of action.”

Moreover, a Federal court and legal commentators refer to Michigan as a strict liability jurisdiction.2 On the other hand, a recent panel of this Court in Rutherford v Chrysler Motors Corp, 60 Mich App 392, 394 fn 1; 231 NW2d 413 (1975), noted that the doctrine of strict liability in tort is nonexistent in Michigan. In Cova v Harley Davidson Motor Co, 26 Mich App 602, 612; 182 NW2d 800 (1970), the Court appeared willing to assent to its de facto existence but disapproved of the label "strict liability”. Throughout the opinion in Williams v Detroit Edison Co, 63 Mich App 559; 234 NW2d 702 (1975), this Court used the terms implied warranty in law synonymously with strict liability in tort, noting that which of the two labels ought to be used need not be decided to resolve the case. Finally, we mention in passing that the Michigan Supreme Court has not directly endorsed any tortious theories of recovery in product liability beyond that of negligence and implied warranty.

We believe that sound reasons militate against adding another theory to the law of product liability in this state. Therefore, we refuse to sanction an instruction on strict liability in tort in a product liability case. First and foremost, we believe [12]*12such a theory is unnecessary. As will be shown, it appears inconceivable that a plaintiff might fail to recover under our tort warranty of fitness theory, yet recover under a strict liability in tort theory. Secondly, as emphasized in Cova, supra, and Chestnut v Ford Motor Co, 445 F2d 967 (CA 4, 1971), adding more labels most likely enhances the chance of causing confusion. It would seem that the law of product liability is plagued by semantical pitfalls, and the Court does not desire to contribute to this legal quagmire.3

The question remains whether the giving of an instruction on strict liability in the instant case requires that we reverse. We begin with the instruction involved:

"We come now to the third theory upon which the plaintiffs bring this suit * * * [t]hat has to do with this matter of strict liability of a seller of a product for physical harm to the user or consumer. It’s the law that anyone who sells any product in a defective, unreasonably dangerous condition to the user, or consumer is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to the property: first, the seller is engaged in the business of selling such a product; and, secondly, that it’s specifically expected to, or does reach the user or consumer without substantial change of the condition it’s sold. The rules which I have just given you apply, although first, the seller has exercised all possible care in the preparation and sale of his product; and secondly, that the user or consumer has not bought the product from, or entered into any contractual relations with the seller. Now, in your [13]*13consideration of the foregoing, you should apply the instructions heretofore given in connection with the burden of proof and proximate cause. In negligence cases, with regard to the claim of product defect, it is the law of our state that the plaintiff must show you that there was, in fact, a defect in the product at the time it left the possession and control of the defendant. Therefore, if plaintiff has not proven to your satisfaction that there was a defect in existence at the time it left the possession and control of the defendant, or that any such defect was not a proximate cause of the accident, you should find in favor of the defendant in connection with this theory of the plaintiff. If there has been a modification of the machine from the time it left the possession and control of the defendant Bolling, and that modification was the sole cause of the accident and injury in these cases, or in either case, you should return a verdict in favor of the defendant, accordingly.” (Emphasis added.)

The first part of the instruction parallels the language in Restatement Torts 2d, § 402A.

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Bluebook (online)
241 N.W.2d 738, 68 Mich. App. 5, 1976 Mich. App. LEXIS 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dooms-v-stewart-bolling-co-michctapp-1976.