*1 340 340 MELITTA, INCORPORATED FERDIG 19, 1981, August at Detroit. Decided Submitted No. 51256. Docket 21, April 1982. against Wayne Ferdig brought Circuit Court suit in Madelin damages Company Melitta, Incorporated, for J. L. Hudson and implied warranty of negligence, of and breach breach based on injuries express warranty. plaintiff from the had suffered using legs spilling a coffee her while she was of hot water on filtering apparatus Melitta and sold manufactured Martin, J., court, granted George plaintiff by T. Hudson’s. The negligence of and verdict in Hudson’s a directed favor Subsequently, express warranty allegations. found (1) negligence negligent was such was and that that: Melitta (2) injuries; plaintiffs proximate was cause proximate negligence negligent was a cause her and that her each, (3) damages; the relative and negligent; negligent Melitta was 85% 15% (4) express warranty that was a an Melitta breached plaintiffs injuries. proximate further cause liable .a Melitta nor Hudson’s were found that neither [2] [3, [4] [1] [7] [9] [6, [5] Am Jur 63 Am Modern Contribution or Comparative negligence 4] 63 Am Jur Am 8] 57 Am 74 Am Jur Contributory negligence for persons in involved. 8 ALR3d 722. applicability alleged relative fault. Am Jur Jur personal injury, Am Am Jur Jur 2d development 2d New breach Jur Jur 2d, New 2d, 2d, 2d, 2d, References 2d, 2d, Products Products Products Negligence Torts §§ 53 ALR3d 184. Topic indemnity Topic Negligence Products implicit warranty. Service, Comparative Negligence Service, death, Liability 61, 71. Liability 32. Liability rule where misconduct comparative for Points §§ Liability between assumption of risk as defense to action actions §§ 1, Comparative Negligence 42.§ 288, 66-69. §§ property § 1.§ 32, generally. 27.§ 303. joint 4 ALR3d 501. 99. Headnotes damage resulting tortfeasors on basis of 78 ALR3d 339. of three or doctrine §§ 1, 41. having more Ferdig v Melitta implied warranty theory. breach of judg- The court entered a plaintiff reducing ment for to reflect 85% jury’s (1) appeals alleging determination. The that: *2 judge the regarding committed three errors the admission proofs (2) of design filter; on the issue of defective of the coffee reducing damages the trial by court erred in the because 85% jury liability upon the express warranty found based an in finding upon negligence addition to its of based and no (3) made; reduction should have been and the trial court erred directing in negli- the verdict in favor of Hudson’s as to the gence count. Held: prohibiting plaintiff 1. The trial court did not err in the from introducing other, jury exhibits of safer until it had been established that those exhibits were manufactured prior ruling proposed to the accident or in that the exhibit of Melitta, by another coffeefilter device manufactured which the plaintiff argues design purchased a safer and which was of shortly accident, plaintiff’s after the was inadmissible. The trial judge carefully by plaintiff considered the evidence offered the inadequate prove determined that the evidence was to that products predated Furthermore, the safer during the accident. expert Melitta, the by cross-examination of an witness called the above filter devices were admitted into evidence. The trial striking court testimony erred in from the record of one of the plaintiff’s expert clamping witnesses that there was no locking purchased by device on the coffee filter the prevented that slipping However, would have it from off center. cursory this error inspection was harmless because even a of clamping the filter locking reveals that it has no devices. It against logic would be jury to reason hold that the was not aware of the absence of such devices. 2. reducing The trial court erred in the amount of by jury expressly because the 85% found tht Melitta had filtering warranted that its coffee device could be with used the type pot pictured package. of Legislature coffee did expand concept not intend contributory negligence to the when it comparative negligence enacted the statute on in products liability Comparative negligence cases. was intended simply as contributory a substitute in those cases in which negligence could have been raised as a defense to enact- ment of the statute. Appeals 3. The Court of declines to address the issue of granting whether the trial court erred in a directed verdict for Hudson’s on the count because the is enti- judgment any tled to collect whole defendant without degree fault between defendants regard to the relative liability. joint Melitta and several according to the doctrine from Hudson’s to contribution have been entitled would liable on the found Hudson’s that event ruling appealed not the trial court’s theory, has Melitta but issue. part. part and reversed Affirmed J., judge He Burns, dissented. believes M.T. directing as to a verdict for Hudson’s erred question plaintiffs complaint in the because count reasonably prudent is seller one Hudson’s acted as a whether fact. Further- the trier of should have decided been joint more, question are and Melitta of whether Hudson’s fact for a to is a and several tortfeasors also of fact is able to determine that determine because if a finder and that another has has caused one harm one tortfeasor harm, respond only required is for each caused different injury been caused that has been determined have single permitted Although only to have is him. *3 sustained, injuries she that she is for each of the satisfaction injury whether caused to have a determine entitled to injury, fairly distinguished by if can be from her Melitta any, by to her Hudson’s. caused Opinion of the Court Liability — 1. Actions. Products any legal an action based on or A action means liability brought theory equitable or on account of death of for resulting person property by injury from or caused or to a manufacture, construction, formula, development design, standards, inspection, preparation, processing, assembly, test- instructing, marketing, listing, certifying, warning, ing, adver- component product tising, packaging, labeling of a or a a (MCL 27A.2945). product 600.2945;MSA Liability Comparative Negligence. — 2. Products expand concept Legislature did of contribu- not intend to comparative tory negligence it when enacted the statute negli- products liability cases; comparative gence simply a was intended as substitute those doctrine contributory have been raised cases which could (MCL to of the statute as a defense enactment 600.2949[1]; 27A.2949[1]). MSA Ferdig Melitta Negligence Negligence Contributory — Express — 3. Warran- ties.
Contributory negligence not is available as a defense in cases given. express are where warranties Negligence Buyer’s Negligence — — Warranty. 4. Breach of
Negligence part buyer of a operate should not as a defense warranty; if a breach the manufacturer chooses extend scope liability by certifying of his qualities certain existent, negligent buyer, bringing acts of a about the qualities exist, revelation do not should not defeat recovery by buyer. Negligence — Comparative Negligence — 5. Joint and Several Liability. adoption comparative Michigan has not joint resulted in the abandonment liability; and several plaintiff is entitled judgment to collect the any whole defendant regard found to be liable without to the relative degree of fault between the defendants. Burns, M.T. J.
Dissent Negligent — 6. Vendor and Purchaser Manufacture.
Generally, a product acquired vendor who distributes a in the open negligent market is not liable for its manufacture. Negligence Negligent — 7. Conduct.
Negligent conduct is conduct that involves an unreasonable risk of harm reasonableness, and it is the standard of not some rule, by party’s artificial which judged conduct must be in a
negligence action. — 8. Sales Defective Products.
A seller is liable for product caused a defect in a he sells if he knows or in the exercise of reasonable care should
have known of product. the existence of the defect Separate — 9. Torts Tortfeasors.
Each tortfeasor in an required respond action based tort to is only injury for the that has been determined have been caused him where a ñnder of fact is able determine that one tortfeasor has caused one harm and that another has
caused a different harm. Mich the Court (Gromek, Thomas, & Bendure A. Brescoll
James counsel), plaintiff. for Magnuson, Westcott, for & defen- Seavitt, Stowe dant. P.J., T. M. and and H. J. Gillis,
Before: Burns JJ. Kaufman, N. J. right appeals by Gillis, P.J. Plaintiff
J. H. for a new denial of her motion the trial court’s trial. brought for to recover Plaintiff suit spilled injuries water when hot she sustained filtering using legs a coffee her she was while apparatus Melitta and defendant manufactured plaintiff by L. Hudson defendant J. sold Company Hudson’s). (hereinafter theo- Plaintiff’s negligence, against defendants included ries both warranty express implied breach of breach of warranty. support re- that her
In of her claim top, plastic in the coffee-filter sulted from a defect regis- testimony plaintiff presented a expert professional engineer. This testified tered top the filter that he had examined glass pamphlet along instruction with the pot purchased plaintiff. by the He noted that coffee the instructions glass pot, pictured similar coffee being purchased by plaintiff, with the used to that expert holder. The testified that Melitta filter filter holder the coffee accident occurred because did not sit flat on the coffee ridge pot because of disc-shaped periphery base around the opinion expert’s disc the filter. It was the slip sideways filter too and would small spill easily approximately its one inch and could bumped. The if it were contents hot water *5 Ferdig v Melitta Opinion of the Court expert warnings noted that there were no in the instructions that cautioned user about dan- this ger. Although expert also testified that by plaintiff clamping filter device used no had locking prevent slipping device to it from off testimony center, this was stricken a motion of ground counsel defense that the lack of present such devices was irrelevant to the case. plaintiff’s proofs, At the close of the trial court granted a directed verdict favor of Hudson’s on express warranty allegations. and remaining agreement parties The claims jury by special way were submitted to the of a 1) jury verdict form. The negligent found that: Melitta was proxi- and that such was a plaintiff’s injuries damages; mate cause of the 2) and plaintiff negligent negli- was and that her gence proximate was a cause her 3) damages; each, relative negligent plaintiff Melitta was and the was 15% 4) negligent; and Melitta’s breach of ex- 85% an press warranty proximate a cause of the plaintiff’s injuries. jury The further found that neither Melitta nor Hudson’s were liable on a implied warranty theory. breach as- $10,000. sessed at court’s order judgment damages by reduced the en- 85% judgment tered $1,500 in the amount of to reflect finding jury’s negligent. that was 85% argues judge Plaintiff first that commit- regarding proofs ted three errors the admission of design on the issue of defective of the coffee filter. argues First, she the lower court erred granting pro- defendants’ motion in limine which showing any hibited other, exhibits of until safer it was established that these exhibits were manufactured Mich the Court argues Next, accident. to her ruling proposed judge erred exhibit, This inadmissible. 21 was
exhibit number manufactured defen- device filter another coffee *6 plaintiff argues was of a safer which dant Melitta design, shortly plaintiff’s purchased after acci- was plaintiff safer that this device testified dent. The pictured aon box of coffee the one of items was purchased to her accident. that she filters judge Finally, plaintiff argues that the trial erred expert striking testimony of her that there the locking clamping devices on the coffee no or were plaintiff purchased by that would have the filter slipping slightly prevented off center. it from evidentiary regard to two of these With the first judge apparent rulings, that the trial was it is subsequent improper evidence concerned that in contraven- not be introduced remedial measures trial, of the the MRE 407. At the outset tion of plaintiff judge to the that she could made it clear safety any devices until not introduce evidence they predated the accident. that she had shown attempted unable to to show this but was Plaintiff judge the trial do so. record reflects that presented by carefully the considered evidence inadequate plaintiff determined that it was products prove predated that the acci- safer say us, we cannot dent. Based on the record before that the trial Gaydos judge abused his discretion. Corp, App 143; 220 NW2d Motor Mich White during Further, ex- of an cross-examination pert Melitta, witness offered defendant plaintiff’s into evidence. exhibits were admitted permitted Thus, to the was to show Any safer error that existed. plaintiff’s judge’s initial exclusion of exhibits Ferdig v Melitta Opinion of the Court from evidence was rendered harmless. The fact expert that not to recall chose her testimony upon the stand to elicit further based argument these undermines her exhibits that she deprived testimony expert of valuable of her of the witness on the state art. respect plaintiff’s
With third claim of judge improperly error, struck from expert’s testimony her the record there was clamping locking no purchased by device on the coffee filter pre- that would have slipping agree it from center, vented off we ruling complaint this alleges was erroneous. Plaintiff’s designed
that defendant Melitta either filtering marketed a coffee device in a manner that provided preventing slipping no means of it from sideways becoming Therefore, unstable. it is testimony plaintiff’s expert clear that was relevant. The then becomes whether *7 judge’s ruling erroneous was harmless. We believe that it was. purchased plaintiff
The coffee filter caused her was introduced into evidence jury’s inspection. at trial and was available for the cursory inspection Even a of the filter shows that clamping locking there is no or Thus, device on it. although plaintiff’s expert witness was not permitted testify to as to the absence of such clamps locking against logic or devices, it would be and reason for us to hold that was not aware of the absence of such devices. plaintiff challenges the trial court’s reduc- damages arguing
tion of $10,000 $1,500 to liability upon that because the found based an express warranty finding in addition to its liability upon negligence, based no reduction presume, should have been made. We as does the the Court reduction court’s plaintiff, of the statute application on judgment based products liability on comparative follows: cases, as reads which brought recover to liability actions products "In all injury person or resulting from or to death may have been fact property, recov- negligence shall not bar a contributory guilty of legal representa- plaintiffs or ery by tives, by the shall be damages sustained but proportion to the amount of diminished attributed 27A.2949(1). 600.2949(1); MSA plaintiff.” MCL this stat- us then is whether before an ex- upon is based applies ute where press warranty. in MCL is defined liability action”
"Products 600.2945; 27A.2945 as follows: MSA 5805, 2949 and section "As used in sections 2946 to any action’ an action based 'products liability means theory liability brought for or on legal equitable or injury person property or caused account of death or manufacture, construction, resulting or from the standards, design, formula, development preparation, testing, certify- inspection, listing, processing, assembly, instructing, marketing, advertising, pack- ing, warning, product component of a aging, labeling of a product.” is,
This it includes definition, being as broad upon express an liability actions based warranty.1_ (now Justice) respond Judge Levin’s The definition seems to *8 products liability cases: with the various used in
frustration labels "Indeed, might helpful use in it if the continued be we abandoned warranty misleading present terminology and of this context of our tort, liability representation, express implied, and and strict simply liability term neutral to the manufacturer’s refer 349 Ferdig Melitta v the Court together, Reading appear it statutes would these plaintiffs must be that a reduced negligence though own her or even amount his upon liability is based manufacturer’s breach warranty. express of an contributory statute,
Prior to enactment
applied only
negligence
those cases
which
upon negligence.
liability
injury
based
was
Where the
warranty,
was
result of a breach of
express
implied, any contributory neg
whether
ligence
recovery.
operate
would not
to bar
Co,
See Bahlman v Hudson Motor Car
warranty),
(1939) (express
683;
290 Mich
NW
Remington
Co, Inc,
cefield
v
Arms
Pier
Mich
Cohen,
(1965), Kujawski
85, 95;
only nonsafety-device negli- gence upon actions. Where was based an express warranty, implied warranty, safety de- negligence, concept applicable. vice was not warranty This was so cases because safety was irrelevant. In device cases policy rule was a matter of to foster work safety._ ” 'product liability.’ Harley Cova v Davidson Motor
602;
On retroactive to have the statute lature intended 709, 718; effect, App Mich 101 prospective well as (1980), applicable 301 46 and thus was NW2d out of which the accident though the action even to the effective arose occurred litigation date of the statute. application then addressed
The Court comparative on the statute statute. It noted the plaintiff’s the diminution negligence ties attributed to the "amount that since no It concluded to plaintiff”. device safety in a
can attributed be law, compara- the statute as a matter case apply.2 would not tive 723, following language quoted The Court at arriving at its case before Jersey a New from conclusion: " Act is Comparative Negligence hold 'We in which to those situations in strict
applicable
defense.
have been a
contributory negligence would
concept
However,
of contribu-
expanding
are not
we
negligence is immate-
comparative
tory negligence, and
either factu-
contributory negligence exists
no
rial when
2
Corrugated
Machinery
Box
v Universal
287
See also Timmerman
(1979),
680;
App
Vincent v Allen
Corp,
316
93 Mich
NW2d
(1980).
safety
Co,
426;
App
Both were
Bradley
NW2d 66
95 Mich
addressing
specifically
decided the issue without
device cases. Vincent
MCL
27A.2945 was
600.2945;
27A.2949,
600.2949;
although
MSA
MCL
MSA
squarely
but
decided the issue
Rees Division of
noted. Timmerman
without,
Avis
in Tulkku v Mackworth
as noted
(1980),
(On
709;
Industries,
Remand),
Contributory negligence has never been an involving express in available defense cases war- The case of Bahlman ranties. Co, v Hudson Motor Car supra, the demonstrates reason for this rule. Bahlman, In the manufacturer of 1936 Hudson represented sedans that the car which the bought a had seamless roof. This was touted as a safety fact, feature. As a new matter of the roof was not seamless. This was revealed when the was involved an accident in which the impact exposed jagged car overturned. The the edges injuring plaintiff’s seam, of the the head. In plaintiff’s against the suit the manufacturer the attempted car, the defendant to raise the defense contributory negligence. Supreme The Court rejected doubtedly finding although this, it "un- was [plaintiff]
true that the of the caused the car to overturn” such readily reasonably foreseeable the manu- facturer. case Hansen v Firestone Tire & Rubber (CA 1960), explained 6, F2d further plaintiff purchased Hansen, In
the rule. four part tubeless tires which utilized the rim as of the plaintiff given chamber. The air brochure op Court fit had been made to tires new proclaimed that represented tire was rim. any standard and as blow out features safety contain various alia, "greater power, corner more having, inter However, when the control, safety”. more curve, the car went out of sharp around drove accident, after examined control. When and not contact tires were deflated right two rim. the outside with reinstating verdict favor of the
In Bahlman, Court, stated at applying plaintiff, 258: buyer would not
"Negligence part warranty. If the operate as a defense to the breach scope of his liabil- manufacturer chooses to extend existent, qualities negli- ity by certifying certain bringing gent buyer, about the revelation acts of exist, qualities that the do not would not defeat recov- ” ery, (Emphasis supplied.) at is similar. The The situation the case bar expressly found that Melitta had warranted *11 filtering coffee device could be used with that its on pot pictured package. the of coffee the type purchased just pot. such coffee The fact the plaintiff’s negligence that the revealed that not, pictured pot expressly coffee as war- ranted, for use with Melitta’s filter appropriate trial recovery. should not defeat the Accordingly, erred in the amount the judge reducing judg- $10,000 $10,000 $1,500. The judg- ment from hereby ment is reinstated.
Plaintiff also
the trial court’s
assigns
error
of a directed verdict
favor of defendant
grant
Hudson’s as to the
count
in the plain-
issue,
complaint.
deciding
Without
the
we fail
tiff’s
prejudiced
has been
in this
to see how
Ferdig v Melitta
Burns,
Dissent
T. M.
J.
regard.
adoption of comparative negligence Michigan has not resulted in the abandonment
joint and several
liability. Caldwell v Cleveland-
Cliffs Iron
721;
111 Mich App
The only party standing with to complain of the directed verdict is Melitta. Melitta would have been entitled to contribution Hudson’s event found Hudson’s liable on the Yet theory. Melitta has not appealed the trial court’s ruling on the issue and there is no other indication that Melitta unwilling is to pay the judgment. Therefore, we decline to address the issue.
Affirmed in part and reversed in part. Pursuant 1963, 820.1(7), to GCR $10,000 verdict of is reinstated without reduction. No costs. Kaufman, J.,
N. J. concurred. Burns, T. M. J. (dissenting). I Respectfully, dis- sent from the majority’s failure to find that judge erred in directing a verdict in favor of defendant J. L. Hudson Company negli- gence count plaintiff’s complaint. The basis of the trial judge’s ruling was that a retailer has no duty inspect goods in package. a sealed *12 Co, v Shirley Brackett
In
Products
App
26 Mich
App
354
340
115 Mich
by
Burns,
J.
T. M.
Dissent
(1970),
stated,
644,
this Court
648;
726
182 NW2d
general rule,
who distributes a
a vendor
"As a
open
product acquired
market
is not
in the
liable
negligent manufacture”. See also Camden
for its
Peterman,
615;
278 Mich
Fire
Co v
NW
Ins
(1937).
argue
Defendants
that the statement
recognizes
implicitly
pack-
Shirley
the sealed
Michigan.
age doctrine exists in
However, even if
once
this doctrine
was estab
Michigan,
viability
lished
it is of doubtful
at
existing controlling legal principles
this time. The
governing
matters of
are not artificial
package
ones such as the sealed
doctrine or the
"stop,
now discredited
look and listen doctrine”
once
used
automobile-railroad collision cases.
Supreme
by
Rather, as was stated
Court in
Moning Alfono,
425;
400 Mich
standard to retailers rules of law, such as the one asserted the defendants here. Inasmuch as the of whether defen- reasonably prudent dant Hudson’s acted as a seller is one that should have been decided trier judge directing fact, erred a verdict plaintiffs as to the count of the com- plaint. majority erroneously that Melitta decides *13 Ferdig 355 Melitta M.T. J. Burns, Dissent joint Hudson’s are several tortfeasors. fact for a
This is a
to
determine.
Ass’n,
See Oakwood Homeowners
Inc v Marathon
Oil
App 689, 692;
With the exception foregoing, I concur the remainder of the majority’s resolution of the issues raised this appeal.