Gregory v. Cincinnati Inc.

v Cincinnati v GREGORY CINCINNATIINCORPORATED 8). (Calendar Argued

Docket No. 98284. March No. Decided 15, 1995. August Rehearing post, denied 1212. Gregory brought products liability Wayne Michael in the a action against Incorporated Addy- Circuit Court and Cincinnati Machinery Company, seeking damages injuries for Morand operating press designed sustained while brake and a manufac- by by Addy-Morand. or tured and sold distributed plaintiff alleged negligently designed The that Cincinnati continuing duty repair brake in 1964 it and that had a to product installing safety guards, by or recall the various and Addy-Morand implied warranty selling had breached an defectively court, designed press Phillip a brake. The J. Jóur- dan, J., preclude denied the defendants’ motion in. limine to any duty continuing subsequently of evidence and denied Cin- Thereafter, judgment cinnati’s motion for a directed verdict. against jury was entered on a verdict both C.J., Appeals, Doctoroff, defendants. The Court of and J., dissenting), Sawyer, (Murphy, reversed and re- manded, finding Michigan impose law does not manu- duty repair product facturers or recall a its release after commerce, into the stream of and that while a manufacturer defect, has the to warn of a latent not have a does 135587). (Docket repair plaintiff appeals. the defect No. The opinion joined by In an Riley, Chief Justice Justice Boyle Supreme Brickley, Weaver, Justices Court held: continuing duty repair product. There is no recall inquiry design requires in a case defect the trier fact to utility assess risks and the time manufacture. Evidence of conduct after the date manufac- improperly premanufacturing focus ture shifts the from deci- potential any finding liability. Any has the taint sions and appropriately or recall left to administrative Legislature. continuing duty or the In this References 2d, 362, 365, Liability Am Jur Products 377. § Liability. See ALR Index under Products 450 Mich requiring instruction was error reversal for both the manufac- turer and the seller. problem negligent 1. The central in a case in admit- ting postmanufacture imposing postmanufacture evidence or a duty repair possibility to jury or recall is the of taint or respect any finding negligence confusion with to of at the time Generally, of continuing manufacture. before there can be a warn, duty recall, repair, to there must be a defect or an problem actionable at the of manufacture. When such a clearly presented, potential distinction is not jury great, possibility holding confusion is as well as the of a postmanufacture improvements, manufacturer liable for con- trary Michigan to law. presentation 2. A claim of theory repair error in the of the to product prevent or recall a questions or in some manner an accident manufacturer, the conduct of the not the condition of product. posits It postmanufacturing duty a to cure after a product product leaves a manufacturer’s control. When a is originally proof advanced, continuing defective and of that is a duty repair theory nothing or recall serves but to cloud the finding negligence. initial product of When the is rendered light improved defective in technology, of the commensurate discourage improvements effect is to technology in if the im- provements liability. can later serve as a basis of Michigan law, 3. only postmanufacture Under duty im- posed on duty a manufacturer has been to warn when a point manufacture, defect existed at the of but was not discov- by erable at that time either the manufacturer or the con- Focusing postmanufacture sumer. on negligent conduct in a design improperly case point-of-manufac- shifts the focus from postmanufacture ture conduct and considers conduct and tech- nology accordingly potential has the jury’s to taint a regarding case, verdict liability premised a defect. In this with test, risk-utility on the continuing duty a instruction adds nothing plaintiff’s potential to the case but confusion. Generally, 4. a modify manufacturer is under no its product in accordance with safety current state of the art features incompatible because such a is with a rule requiring liability exclusively turn on whether the meets production. the state of Imposing the art at the time of update technology place would an unreasonable burden manufacturers, on discourage development and would of new designs might form the costly bases for suits or result in campaigns. and recall proof 5. In this negligent design some was offered of as v Cincinnati 1964; however, presentation continuing duty theory of of permissi- accompanying its evidence tainted otherwise finding. ble The evidence adduced after was irrelevant and prejudicial jury improperly because focus on invited postmanufacture technology assessing negligence, thereby clouding Moreover, finding liability. jury its of instructions finding inviting jury’s further confused and tainted the it to liability improvement technology post- basis find Accordingly, manufacture. entitled to a new trial principled finding because there is no these means errors liability against harmless. Because the both Cincinnati and defect, Addy-Morand required finding the deci- Appeals sion of the Court must be affirmed the case remanded for trial. a new

Affirmed. joined by dissenting, Cavanagh, Mallett, Justice Justice against stated that the verdict the seller should be reinstated respect no because error occurred with to the seller. seller trial, indepen- was never in the no mentioned substance relating it, solely dent evidence offered none of the it, postmanufacture jury evidence related to instructions relat- ing clearly sale, jury’s point to it restricted the focus to of the objected anything confusing and it never to in the instructions. evidentiary points respect The of error with the to verdict against unpreserved the manufacturer were either or harmless. failing clarify trial in court erred to in its instructions that jury product the first had to determine that the unreason- was ably dangerous time at the of sale before it consider could the postsale determining evidence in whether the manufacturer However, breached the standard care. the manufacturer by presenting postsale confused the issues the bulk of evidence jury strategic attempt and theories to the a shift blame to dangerous machine, for a machine to the owner of the the employer plaintiff. give The court also failed to proposed defendant’s instructions that would have limited the point determinative for a to the defect sale. The harmless, however, error because there was substantial press dangerous unreasonably evidence that brake was prevailing post- under the standards in 1964 and because the presented primarily by by sale evidence was the defendant or plaintiff objection. without Levin, dissenting part, product Justice stated that if a is faulty through time of defective sale—whether manufac- negligent design—the ture or manufacturer is liable for all proximately by finding harm caused the defect. No additional 450 Mich 1 impose liability. a breached is needed to It does not follow, however, postsale obligation that there can never be a product. cases, may to recall a In some a manufacturer have an obligation protect against dangers posed by products to that originally product may prove were defective when sold. A unreasonably dangerous having to be negligently without been designed. In such a a manufacturer who learns or should product-related danger learn of obliga- an unreasonable has an steps prevent tion to product take reasonable from causing harm. Recognizing postsale obligation only meaning a has when the product initially Any postsale obligation is not defective. should arising general duty be viewed as out of the to exercise reason- safety able care for the of others. Where an unreasonable danger product of a was unknown and unknowable at the time sale, danger a manufacturer who later learns of the is under obligation protect an against to exercise reasonable care to cases, many obligation require harm. In warnings. will In others, meeting may require the standard of reasonable care Warnings repairs properly recall. are viewed not as differ- obligations simply points ent but different on a continuum of postsale precautions. simply warning A buyers recall is a accompanied by making an offer to bear the cost of needed changes product. in the defective permit pursue It was error theory based postsale obligation danger posed or recall. The manufactured, brake was well known when it was widely recognized and had been for decades. This was not a danger case of an unreasonable that was unknown and un- manufacturer, knowable at the time of If manufacture. Cincinnati, liable, liability predicated such should be on a existing defect then. The instructional error and the error in the admission of requires evidence was not harmless and the verdict against However, against Cincinnati be reversed. the verdict seller, Addy-Morand Machinery Company should be af- regard firmed. The errors with to the introduction of evidence jury concerning instructions the manufacturer did not against taint the verdict the seller. In contrast to the instruc- regarding design against Cincinnati, tions the defect claim the warranty against instructions on the Addy- breach of claim unambiguously required jury Morand to consider the condi- of tion Addy-Morand’s brake at the time it left control. against Addy-Morand

The verdict necessarily did not derive v Cincinnati op the Court against proof verdict Cincinnati. some from the There was manufacture, negligent design as of the time of and offered Gregory presented defense counsel conceded that evidence that press brake at that defendant was defective time. Neither challenged evidence, sufficiency of the evidence. It Cincinnati, against supported and not the verdict a verdict against Addy-Morand. against warranty breach of claim Confusion between the Addy-Morand and the that Cincinnati had a con- instructions obligation emphasizing tinuing been could have avoided neglected between differences the claims. defendants strategy, a make distinction as matter of trial and it for therefore cannot form the basis a claim of error. (1993) App 474; 202 Mich 509 NW2d affirmed. Liability Design Duty — — Continuing Products Defects Repair — or Recall Postsale Conduct. continuing repair product; no There is or recall requires inquiry in a case defect an assessment of the manufacture; utility risks and at the time of improperly evidence of conduct date of after the manufacture premanufacturing shifts focus from and has the decisions potential any finding liability. to taint Eaton, Smorodin, T. T. Allen David and Jr., McIntosh, Ernest W. Kathleen Wilson for plaintiff. Harvey, Kruse, Milan, & Westen P.C. (by Borden), Dennis M. Goebel and Maurice A. for the defendants.

Amici Curiae: Cooney, Mary & Plunkett P.C. Massaron (by Ross), Counsel, Michigan for Defense Trial Inc. Jeffrey Meyers, Granzotto, Mark T. E. Richard Shaw Michigan Lawyers Trial Association. At issu3 in this case is the propriety

Riley, continuing theory or recall 1Mich Opinion of the Court products liability negligent design in a case. The inquiry Michigan recognizes is whether law a continuing duty repair and, not, or recall if facts, these theory whether it was error to introduce this accompanying

and its evidence. We hold continuing duty repair that there is no or recall product. inquiry a The in a defect case requires the trier of fact to assess the risks and utility of the at the time of manufacture. Evidence of conduct after the date of manufacture improperly turing premanufac- shifts the focus from the potential any decision and has the to taint finding liability. persuaded Moreover, we are any duty appropriately or recall is agencies Legislature, left to or the administrative who can better determine under what circum- imposed. stances a should be In this we continuing duty hold that error instruction was requiring reversal for both the manufacturer Hence, and the seller. we affirm the decision of the Appeals. Court of

i May plaintiff Gregory, 16, 1986, On Michael a injured sheet operating metal worker was while press by employer brake owned his Sheet Metal press designed Industries manufactured brake was and (smi). Incorporated Cincinnati in 1964 by Addy-Morand and sold or distributed Machin- ery year. in the same press A brake is an industrial machine used to shape and form sheet metal. While there are types press general purpose several brakes, press brake is at issue in this case. This operator shape types brake allowed the all operator activate, sizes of metal. To would depress pedal causing a foot the "ram” to descend v op the Court thereby forming shape metal, onto the needed. whatever day using accident, On the general purpose press piece this metal floor. He bent brake when a

popped out of the machine and fell on the pick up placed

down to his press "point operation,” left hand on the brake’s actually performs i.e., the area where the machine bending shaping. testimony the that and indicated doing stepped

in so he either on the foot pedal, causing cycle, already the machine to or pedal depressed had his foot on the and it even bending causing down, further when cycle. Consequently, plaintiff’s thus it to severely

thumb was requiring amputation.1 crushed, later brought against Plaintiff suit Cincinnati and Addy-Morand. gently alleged negli- He that Cincinnati

designed press brake because it lacked adequate guarding operation at the and pedal. plaintiff alleged Moreover, the foot continuing duty Cincinnati had a recall product by installing safety various guards. Against Addy-Morand, plaintiff the seller alleged defectively implied warranty selling breach of in designed plain- However, brake. any independent negli- tiff did not assert claims of gence deriving or other conduct2 aside from that from Cincinnati. court,

In the trial defendants filed a motion in preclude any continuing limine to evidence of duty. Although appears unclear, it the trial judge tentatively motion, denied the but stated he objections they would consider further if when and Although objections arose. opening there were no to the closing arguments, defendants ob- subsequent surgery, plaintiff big In a had his toe removed and attached to his hand. example, For failure to warn. 450 Mich Opinion of the Court jected postmanufacture evidence on relevancy grounds. In each the objection was overruled. Thus, when called Cincinnati’s repre- sentative witness, Dennis Cloutier as an adverse plaintiff’s counsel permitted was to introduce evi- dence of promulgated standards osha which require employers to install guardings on press brakes. This led to the presentation of Cin- cinnati’s two postmanufacture service calls and evidence plaintiff’s later, employer, years requested and price quotes received update machine to conform with the osha provisions.3 Plaintiff also elicited evidence of sensing electronic devices developed for use the United States after 19644 and permitted question Mr. Cloutier about Cincinnati’s failure to recall machine.

Plaintiff’s only expert opined that if Cincinnati discovered after 1964 that the press brake was defective for not having adequate guarding, it "had a duty to correct that defect in the machine” that, had, if the accident would not have Furthermore, occurred. over objection, defendants’ plaintiff admitted a photograph of a foot pedal guard despite the inability to identify any manu- facturer having such a device in 1964.

At evidence, conclusion of the Cincinnati moved for a directed verdict on the continuing instruction, contending that there is no basis in Michigan law for such instruction. judge The denied the motion presented the question to the jury._ approximately Since thirty mailings Cincinnati sent to smi regarding updates machine, including safety available for the recom mendations. The record introduced in primarily indicates that this information was response continuing duty theory. to the 4However, there was evidence that these devices were available in Nonetheless, Scotland explained before 1964. Dennis Cloutier

they developed perfected were not fully or until 1970. When devel oped, Cincinnati forwarded this information to smi. v Opinion op the Court Cincinnati,

Against was jury instructed on a standard negligent design However, theory. it was further instructed that a manufacturer has a duty to incorporate new advances in technology and that "a manufacturer who learns of de- fect after product has been sold has a take reasonable actions to correct the defect. It is you to determine what constitutes reasonable form, actions.” the verdict On the jury was further instructed to answer "neg- whether Cincinnati was ligent in one or more the ways claimed plaintiff.” These "ways” negligence find were negligent design either or some form of continuing i.e., negligence, repair or Against recall. the seller Addy-Morand, jury instructed accor- dance with the implied warranty theory only. The jury found both defendants liable and returned a plaintiff verdict for in the amount of million.5 $1 The Court Appeals remanded, reversed and finding Michigan law does not impose on manufacturers a duty repair recall a after its release into the stream of commerce. (1993). App 474; Mich 509 NW2d 809 Reviewing Comstock v General Corp, Motors 163; Mich (1959), 99 NW2d 627 the Court held that a manu- facturer has defect, to warn of a latent but does not have a duty a latent defect. The Court found that admission of this theory liability and its accompanying evidence resulted in requiring error reversal because the jury may have found Cincinnati liable on the basis of their failure to take affirma- steps tive injury to alleviate the risk of after the sold, machine notwithstanding possi- had been

bility product may not have been "defec- jury but, actually awarded $1.5 million because of his contributory negligence, reduced $1 the award to million. Mich op the Court designed tive” when the machine was and sold according to those standards extant in 1964. [202 App Mich 484-485.]

With regard to the distributor Addy-Morand, Court found that the same erroneous instruction tainted evidence of a point-of-manufacture defect because the warranty against claim Addy-Morand defect, i.e., was derivative of there was independent no evidence negligence or breach of warranty by Addy-Morand. Judge dis- Murphy sented, finding no error the instruction or the- ory products liability. granted plaintiff’s We application for appeal.6 leave to

ii The central problem in a negligent design case in admitting postmanufacture evidence or impos- ing postmanufacture or recall is the possibility of taint or jury confusion with respect to any finding of negligence at the time of manufacture. Generally, before there can be any continuing duty—whether warn, it be to repair, or recall—there must be a defect or an actionable problem at the of manufacture. If there is no defect or problem actionable point, then there can be no continuing warn, repair, Hence, recall. when that distinction is not clearly presented, the potential for jury confusion great, is as well as the possibility holding a manufac- turer liable for postmanufacture improvements, which, below, as explained contrary Michigan law.

Moreover, in the usual case which an issue of latency presented, is not point- existence of a of-manufacture defect or problem other actionable (1994). 447 Mich 980 11 v Cincinnati Opinion of the Court proven

entitles full if a plaintiff recovery a to Hence, preponderance of the evidence. the need for a presenting continuing with ac- duty theory its nil, is companying evidence this situation while possibility high. the for or jury taint confusion is In order to a fully principles, understand these design review of the various of negligent theories is necessary. Michigan,

In there are two theories that will support finding a negligent design.7 of The first theory is theory based on a failure warn. This product renders design the even if the defective chosen does not render product defective. See Co, Gerkin v Brown & Sehler 57-58; 177 Mich Comstock, 143 supra; American (1913); NW 48 3d, 32:2, of Law Products Liability, pp 17-19. This § warning includes the warn dangers about regarding intended uses the product, of as well v as foreseeable misuses. Antcliff State Employees Union, Credit 624, 637-638; 414 Mich 327 NW2d (1982). If, however, the manufacturer of aware until defect after manufacture sale, it has a upon warn learning of the defect; if point-of-manufacture there exists a warn, postmanufacture duty to warn necessar- ily continues upon of the defect. Com- learning stock, supra; 32:79, supra Liability, Products at p § 130. other, more proving traditional means of

negligent design questions design whether cho- defective, i.e., sen product renders whether a risk-utility analysis favored al- an available safer Mfg Co, ternative. Prentis v Yale 670; 421 Mich (1984). 365 NW2d 176 In complaint, such a of any duty begins focus product with whether 7Although defect, design anot at one least other defect is recognized Michigan. A manufacturer will held be liable manufacturing existing defects the time manufacture and sale. Mich Court it left the manufacturer’s con- was defective when (On Corp v General Motors Rehear- Holloway trol. (1978). 614, 621; ing), 403 Mich 271 NW2d Cincinnati, alleged that Against in the defectively designed brake was tradi negli warranty tional sense under a breach allege negligent Plaintiff did not gence theory. theory. Generally, under failure warn are warranty negligence separate breach Sons, Squibb theories. Smith v E R & and distinct (1979). 79, 89-91; 405 273 476 A Mich NW2d breach of claim tests the of the warranty fitness product requires "prove and that the a the defect attributable manufacturer and causal connection that defect and or injury between the Piercefield v Rem damage of complains.” which he Co, ington Arms 85, 98-99; 375 Mich 133 NW2d (1965). 129 Customarily, this defect can be found "regardless the by of the amount of care utilized Squibb, supra at 89. the manufacturer.” On other hand, negligence a claim tests the defendant’s product conduct instead of the to determine whether the reasonable under circumstances. 8 Id. times, merge

At these two distinct theories into i.e., one, dispositive the is one in inquiry the Prentis, supra, In same.9 this Court held that a 8 negligence theory generally focuses on the defendant’s [T]he conduct, unreasonable, requiring showing a that it was while warranty generally irrespective upon product, focuses the fitness of the [Prentis, supra of the defendant’s conduct. at 692.] 9 Squibb, supra In this Court discussed the effect of a breach negligence against warranty of claim a manufacturer for inade- quate warnings. We held that both claims "involve identical evidence elements,” i.e., require proof exactly and under the circumstances.” Id. at 90. "This is true because the focus is upon of the same “reasonable care warnings, regardless adequacy theory the of the of added). (emphasis product- liability.” Id. It is "not the itself is whether . . . .” defective Id. at 89. v Court design requires negligence traditional defect case a analysis alleges separate even if the count claim a cases, warranty. product Unlike other the dis- conduct, positive is on focus the manufacturer’s just product. Id. at 688. A conscious deci product design sion a certain manner necessitates the focus be on conduct rather Hence, product.10 than the the trier of fact must employ balancing risk-utility test considers designs alternative safer accompanying pared risk against the risk and utility of design chosen "to . . determine whether . manufacturer exercised care in making reasonable choices it made.” Id. Such an inquiry requires plaintiff prove "that the manufacturer pro knew should have known the design’s Madden, pensity for harm.” Products Liability (2d ed), 8.1, context, p 290. In this the manufac § turer’s conduct then tested for reasonableness. Id. at 291. defects, however, Manufacturing are different because it necessi tates examination er’s conduct. the "[i]n itself rather than the manufactur Hence, defect,’ 'manufacturing of a case

product may standards, against production be evaluated the manufacturer’s own products.” as manifested other manufacturer’s like Prentis, supra at 683. alleged devices, safety In this defect is the lack of specifically, guarding point operation pedal. at the of and on the foot Inc, Appeals explained Cincinnati, As our Court of 176 Reeves v 181, 187-188; App (1989), Mich 439 326 NW2d prima premised upon a sion of foreseeable facie case of a defect the omis- safety requires showing magnitude of a device first a of the risks, including of likelihood occurrence of type precipitating safety of accident the need device severity injuries and the of sustainable from such an accident. secondly requires showing safety It of alternative devices whether those devices would have been able latter design as effective a reason- minimizing danger. means of the foreseeable risk This of showing may entail an evaluation the alternative of utility safety in terms of its additional as a measure against product. its trade-offs the costs and effective of the use 1 14 450 Mich Opinion op the Court III allege case, error with In this defendants do negligence regard or breach of to the standard against warranty either the manufacturer theories they Instead, maintain a claim of or the seller. error on the presentation theory repair, prevent manner, recall, or, in some the accident. the conduct of the questions clearly Such a focus than the condition of the manufacturer product duty rather postmanufacture Moreover, it itself. is a product to cure after the leaves its control. any duty imposed public policy Because and the law.12 is one of depends on the facts of the individual question imposing of such a is one of

A postmanu- Commentators and courts have found continuing variety facture or duties to in a arise depending type danger on the circumstances posed, knowledge, the manufacturer’s and the time knew, in which the manufacturer should have possible problem.13 actually known, learned of a Generally, however, these factors must exist while product the For is in the control of the manufacturer.

example, danger point must exist at manufacture and the manufacturer either must have known or should have known of the

problem appropri- while still in its control.14This is most ately postmanufacture stemming deemed a from a defect at the of manufacture._ 12 (On Glittenberg Doughboy v Recreational Industries Rehear See Antcliff, ing), 379, supra 386; (1992); 631. Mich NW2d 13See, Allee, obligations generally, Post-sale manufactur ers, (1984). 12 Fordham Urb L J 630-638 post-sale they comment, Manufacturers’ duties in Texas—Do See exist?, (1986). they 965, 967, Mary’s or should 17 St L J 15 v Cincinnati Opinion of the Court years, postmanufacture however, Over these the. beyond underlying

duties premise been have extended point-of-manufacture aof defect situa- legally tions which the was not defec- release, tive at the time of because but "defective” improvements technology, imposing of manufacturer a on the purchasers products already notify or incor- porate improvements into problem In the market. nected the this such a is uncon- a defect that of existed under state Accordingly, art at the time of manufacture.15 duty logically continuing a cannot be deemed nothing to if because there would be continue product left the nondefective condition.16 the manufacturer’s control in a appeal, plaintiff In this insists the issue only former, i.e., before this Court concerns the a continuing duty stemming existing from defect point at the of manufacture. Defendants its clear, amici curiae contend that the issue not so with evidence in the record that both theories presented, and, error, were ingly, require both were accord- any they

reversal because tainted finding negligence under traditional theories products liability. analysis,

At this in our we deem it neces- sary clarify postmanufac- whether the instant premised point-of-manufacture ture on postmanufacture improvement defect or a in tech- nology product dangerous that now makes the Reviewing testimony, jury defective. instruc- sold L R Ins 440-441; Freedman and ucts: Should United See, ^[15] Lynch 16 Co, products 166 NJ Aircraft (1989). generally, 548 A2d 1276 v McStome they conform to state of the art Biggs, Super Corp, have a note, JJ.). 448, 464-466, & Lincoln (1988); Manufacturers continuing duty F2d Jackson New Plaza and n 242-244 Associates, v 3; inherently safety to make their 400 A2d (CA 1964) Jersey 3, features?, 378 Pa dangerous prod Manufacturers (1979); (opinions Super previously 92 W Va Noel v 430, Mich 1 the of Court tions, for directed ruling on the motion and verdict, theories were persuaded that both we are instructions on this issue presented. The relevant implied proper explanation came after negli- the seller and the warranty against claim gent design against Immediately claim Cincinnati. negligent of following instruction design Cincinnati, trial indicated: against judge duty deep A manufacturer has a further [sic] developments in abreast of and be informed of the design safety, the field of reasonably and manufacture and to incorporate safety in new advances design technology into the and manufacturer [sic] obligation part product. of is no on the of its There provide every possible the manufacturer new might possibly device which or invented. have been conceived Further, a manufacturer who learns of a has a defect after the to has been sold to correct the defect. It take reasonable actions you is for to determine what constitutes reason- actions. able emphasize

These instructions did not that design defect must have existed 1964 or initially . . . [k]eep the "further abreast developments” was confined to time manufac- Moreover, a further in- ture and not thereafter. presented struction and on the verdict form orally jury directed to answer whether claimed "negligent ways was one or more of the plaintiff.” Likewise, trial judge is not clear theory applicable merely deemed this basis He denied of a defect at the time of manufacture. on this defendants’ motion for a directed verdict point was introduced to theory because "[e]vidence v Cincinnati Court safety out that were changed by standards law at some after the machine left the manufac- turer and before the in this accident involved might one of that’s the factors that lead a trier reasonable of fact determine there continuing sort.”17 some Considering all instructions the trial court’s ruling, believe we both theories logically were presented required and thus discussion of both is to determine their effect on verdict.

B date, In Michigan to postmanufacture the only duty imposed on a manufacturer has been the duty to warn when the defect existed at the manufacture, but for some reason was undiscov- by erable both manufacturer18 and con- 17He further stated: submitted, mostly by There has also be evidence [sic]

defendant, apparently that would that the indicate defendant duty felt to some inform of its owners machines that laws had changed to offer a all of technology changed prepared and had and that it was price procedure making changes. and a those And things up enough present I those believe add to to that question of to the fact trier of fact. Cavanagh’s opinion error, theory Justice admits that this was but relevancy respect dismisses its with to the error in this case because judge’s statement, obviously the verdict, as it in would a motion for directed presence jury.” was made "out of the Post at 47. Interesting meaningless pled ruling be, may as observation of the trial court’s it is cou- considering plaintiff’s proofs argument when and given jury. with the actual instructions to the 18 emphasize presented We that we are not with do not decide products continuing whether warn the duty manufacturers of distinct have a dangers or consumers learned intermediaries of discovered after See, e.g., Agnes Hosp, enters market. Baker v St 70 (1979) (a 400; drug keep AD2d abreast of other means knowledge NYS2d 81 manufacturer must knowledge products gained through of its research and reasonably bring necessary steps must take profession). to the attention of the medical Mich op the Court Comstock, However, supra. time. sumer19 at manufacturer has a we have never held that a in this repair recall postmanufacture context, postmanu- that any and have never held subsequently can arise from discov- facture duties to a at knowledge ered unattributable defect time of manufacture. Comstock held

In the seminal this Court postmanufacture that a manufacturer has a the manufacturer to warn of latent defects once There, defect problem. discovers the while the was or the apparent either to the manufacturer sale, consumer at the time of a defect nonetheless post existed and manifested itself manufacture. defendant, discovered, the defect was When Motors, acknowledged by General its existence offering charge.20 the defect free of manufac- unique

In the context which the a latent man- acknowledged the turer existence of ufacturing defect, as evidenced numerous fail- a repair, imposed ures and the offer to the Court duty to warn. Id. apparent 175-176. It Gerkin, supra. relies on At issue in Gerkin was the Plaintiff also point-of-manufacture or notice failure to warn consumers with a that a people. this case. We sale hidden, dangerous might adversely condition affect certain holding in law and is not at issue in Such a is well established imposed dangerous a to warn of a condition superior knowledge dangerous of a because manufacturer has present knowledge apparent at the time of sale. If the is not condition to consumers, a manufacturer will be held liable for failure attach warning point-of-manufacture product. Id. at 57. Accord to the 1956). Noel, Co, (Fla, v 88 So 2d 299 See also Matthews Lawnlite Manufacturer’s product, negligence of a of or directions use (1962). 816, However, LJ 820-822 this no means is a 71 Yale postmanufacture duty. 20 Comstock, plaintiff injured In when a co-worker at tempted to move a car that had lost all brake function. This brake manufacturing defect in a sealer that failure was attributed to a allowed of or its numerous failures attributed to defective sealers and thus dealers to escape, thereby causing At the time fluid to brake loss. brake manufacture, allegedly General Motors did not know of defect sale, however, possible Shortly it learned of failure. after directed its to the the brakes at no cost consumer. 19 v Inc Opinion of the Court knowledge in- subsequently discovered required crease of the risk serious injury of some attempt prevent to Reasoning accident. danger such of at duty to warn a known exists "[i]f sale, ... a duty give prompt like latent defect which makes a warning exists when product hazardous to life becomes known shortly after the manufacturer has on the market.” Id. at put been (emphasis 177-178 added). Comstock,

Since one federal district court Michigan extending has a rejected warn duty a defect to include repair or recall. v Eschenburg Navistar Int'l Transportation Corp, 1993). (ED 210, F Supp Mich, 829 214-215 More over, another district court rejected contention that a manufacturer has a to notify consum postmanufacture ers of safety advances when allegation proof existing there no of a defect Mfg manufacture. Zettle Handy v time Co, (ED 222, Mich, 1992), 837 Supp F aff’d on 1993).21 (CA 6, grounds other 998 F2d 358 Relying case, Court of Appeals decision in this panel another of the Court of Appeals recently argument rejected update purchasers similar regarding in technology advances the prod when Cincinnati, uct itself was not defective. Reeves v (After Remand), App 561; Mich (1995). NW2d

c In this allege does point-of-manufac- brake should have had a warning it, ture attached to nor he does contend plaintiff in Zettle conceded no that "manufacturers have products safety to retrofit their with devices that become avail able after the 224. date manufacture.” Id. at 450 Mich op the Court that Cincinnati breached duty to warn of a latent defect in accordance with Comstock. In- stead, he maintains that Cincinnati had a duty to fix, repair, or product, that, recall reasoning if Comstock, warn exists under a duty to repair also must exist. disagree. We

We find Comstock substantially different from this case because Comstock premised post- manufacture duty to warn on the basis of latency. bar, In the allege did not case at defect was latent,22 but instead contended that knew or should have known of the dangerous condition of this absent certain safety persuaded devices. We are that resolution of (knew known) this risk-utility test or should have forecloses consideration of a latent defect discov post ered manufacture. If the manufacturer should have problem, known of the liability attaches at point, post manufacture.23 support latency, plaintiff usually To a claim of must make showing acquired "an initial knowledge that the manufacturer of a present defect point but unknown and unforeseeable at of sale and failed to take reasonable action to warn of the defect.” See Co, Mfg 741, 761; Patton v Hutchinson Wil-Rich 253 Kan 861 P2d (1993); Comstock,supra. see also interesting testimony We only find it that the revealed one state- regarding latency, ment reality with no factual connection to the expert, Youngdahl, the situation. Plaintiff’s Dr. stated: my opinion In if Cincinnati had not discovered the hazard 1964, injury provide and risk of any and thus didn’t operation protection and then discovered that hazard and risk time, my opinion they at some later had a to correct in,the

that defect machine. "present visible, The term latent apparent, is defined as but not actualized; existing potential as . . . .” Random House Webster’s CollegeDictionary, p 1086. 23Although plaintiff’s expert opined that if Cincinnati discovered post manufacture, problem; the defect it had a proofs, theories, safety machine for sale to finding. and defenses belie such a Cincinnati knew of dual-palm features such as buttons and offered a similar simply utility smi. It determined that this risk general purpose press brake favored a machine with these v Cincinnati Opinion op the Court Prentis, In we held that defect cases Id. require a risk-utility balancing test. 691. With the focus on conduct than rather simply a product, proof of defect the risk-utility test of any resolves issue latency because the result of finding the test is a the manufacturer either knew or have danger should known of the at the point of manufacture. design Accordingly, defect cannot, practically speaking, be deemed undiscov- words, erable at of the In manufacture. other knowledge imputed constructive to the manufac- turer under state the at the art time of design renders the concept latency of at issue in Comstock moot in a design defect case.24 There guardings. Essentially, additional of metal of obstruct the often contended defendants that the size being shaped prevents the any point in the instant machine operation part guarding guarding in because the itself would workpiece, workpiece but also size of because the the required operator this, light to hold it with one hand. In premise case; Comstock, inapposite is Comstock in this unlike latency. there is no issue of design catego One commentator has subdivided defects into two (1) opposite errors, spectrum: design at ries and ends of the inadvertent (2) Henderson, design conscious choices. Judicial review of manu design adjudication, facturers’ conscious choices: limits of (1973). 1531, 1547-1550 Colum LR spectrum originate At one end of the are risks of harm which engineer design appreciate in the inadvertent failure adequately design, implications of the various elements of his employ commonly universally or to understood and accepted techniques engineering the ends achieve intended regard product. spectrum with to the At the other end of the originate are risks of harm which in the conscious decision of design engineer accept the intended associated with risks design exchange benefits or increased reduced designer justify acceptance costs which the believes conscious involving liability design the risks. In cases for inadvertent errors, employed the means to reach the intended ends are involving liability insufficient: in cases for conscious choices, prevailing step ends out of intended themselves are with policies. social [Id. 1548.] law, Michigan regard In the context of we Professor Henderson’s things characterization of "should have known” at the time of inadvertent errors as manufacturer manufacture, 1550, see id. at 1 Mich Opinion op the Court being no issue of latency, question' becomes postmanufacture whether any is imposed.25

D prima Because a facie case is established once the risk-utility proven, test persuaded we are is unnecessary impose and unwise to introduce an additional duty to retrofit or recall a product. Patton v Co, Hutchinson Mfg Wil-Rich (1993).26 763-764; Kan 861 P2d 1299 Focus ing on postmanufacture conduct negligent design case improperly shifts the point- focus from of-manufacture conduct and postmanu considers facture conduct and technology that accordingly potential have the jury’s taint a regard verdict ing a defect.27

Moreover, we believe the duty to repair or recall is more properly a consideration for admin- agencies28 istrative and Legislature who "are better weigh able to the benefits and costs in- volved in locating, recalling, and retrofitting products,” as well as other economic factors affect- ing businesses and Patton, consumers.29 supra at design whereas the turer danger conscious choice is a the manufac- knew, utility but that the risk favored the chosen. Id. at 1553. 25 latency case, Because premise is not at recog issue in this imposing nized in duty Comstock for lacking. Therefore, a to warn is consider, we need not day, and save for another whether Comstock duty should be extended to include a to or recall in other product suits. 26 Dorsey Southeast, Inc, See also Wallace v Trailers 849 F2d 341 (CA 1988). 8, 27 note, duty See notify The subsequent safety manufacturer’s improvements, 1087, (1981). 33 L Stan R n 2 28 Co, See also Smith 129, v Firestone Tire & Rubber 755 F2d 135 (CA 8,1985). Patton, plaintiff Torts, Like the in relies on Restatement 2d, 321, p § 132: act, If the actor subsequently does an realizes or should v Cincinnati Opinion of the Court 764.30Courts have traditionally been suited to consider the economic effect of such repair or recall In campaigns. with liability premised on test, the risk-utility continuing a duty instruction nothing plaintiff’s adds potential case but con. fusion.31 event, i.e.,

In any when appropriate, when the protection of vital interests was deemed necessary, policymakers have explicitly delegated such au- causing

realize that physical reasonable care to it has created an unreasonable risk of another, harm to he is under a exercise prevent taking the risk from effect. any Michigan adopted Plaintiff has not cited case a wherein court has provision this intended to has revealed change administrative and has not demonstrated that such a apply products liability (independent actions research none). However, found, as the Patton court this does not appropriately our belief that a to recall is left to agencies Legislature. and the impose post-sale obligation remedy [C]ourts replace products already marketplace arrogate in the to them power equivalent requiring product selves a Product trative recall recognized, sources to make to that of recall. recalls, however, properly province are of adminis agencies, expressly delegate as the federal statutes that authority agencies suggest. Congress to various As has agencies administrative have the institutional re fully marginal informed assessments of the recalling specific product. benefits of Because the cost of locating, recalling, replacing products mass-marketed can likely passed be enormous and will be on to should not be exercised in consumers higher prices, power form of the recall Courts, impact. without extensive consideration of its economic however, inquiries cases, are constituted to define individual and their particular arguments are confined to the facts and expand the cases before them. Decisions to a manufacturer’s post-sale duty beyond making prod reasonable efforts to warn newly dangers uct users about administrative discovered should be left to agencies, weigh which are better able to [Schwartz, post-sale duty costs and benefits of such action. to warn: Two unfortunate forks the road to a reasonable doctrine, (1983).] L R NYU 31Perhaps proof necessary of such conduct would be relevant and if punitive damages Michigan, were in available but that is not the case. (SD Co, Ind, 1988), Supp See Reed v Ford Motor 679 F 873 in which approved theory prove the court a recall in order to recklessness for purposes punitive damages only. 24 450 Mich 1 Opinion op the Court agencies.32 to did thority administrative Plaintiff no rely imposing and cites statute such a duty repair provide to or so as recall to a basis had, legal duty negligence a in a If action. he and case, in appropriate to recall failure follow a order agency might pro- mandated statute and vide the basis for in duty negligence a recall a action. imposed duty

Cases have a recall have few been and have been primarily cases,33 i.e., reserved for extraordinary airplane in safety,34 potential danger which the is severe 32 Act, (Consumer Safety See Consumer Product 15 USC 2064 Commission); Safety Product Safety National Traffic and Vehicle Motor Act, (now repealed) (Secretary Transportation); 15 USC 1414 Food, Drug, Act, (Secretary and 21 36011 Cosmetic USC of Health Services); (Secretary and Human Services). 21 360h USC of Health Human 33 (D Co, Supp 1517, Minn, In Kociemba v G D Searle & 707 F 1989), suggested product may the court that a recall in be available "special "knowledge cases” which had manufacturer of a problem uct, product, advertising prod with the continued sale or pre-existing duty dangers to warn Piad] associated with product.” product the an Unlike the instant Kociemba contraceptive allegedly plain intrauterine device that caused the context, tiff to become infertile. In that in which the manufacturer product, knew of the defect but continued to sell the the court found necessary "special imposition postmanufac the ture circumstance” for of a to warn or recall. Corp, supra holding (arguably See Noel v United Aircraft n 16 crash, improve in context of an airline there is a issue). product of of safety Following when human is at the central theme Noel, Noel, explicitly refusing adopt but the United States Court Appeals Airways, for the Circuit Third in Braniff Inc v Curtiss- (CA Wright Corp, 451, 2, 1969), 411 F2d held without citation: clear It is such after has been sold and

dangerous defects in have to the come manufacturer’s attention, or, remedy the manufacturer has a either these users complete remedy feasible, give if is not at least to adequate warnings concerning and instructions methods for minimizing danger. (Tex Helicopter Bradshaw, See Bell App, also vCo 594 SW2d 519 Civ 1979)(discussed below);Downing Corp, v Door Overhead P2d 1027 (Colo 1985); (CA App, Co, Romero Int’l v Harvester F2d 1444 1992). v 25 Opinion op the Court and widespread. We elect not to follow such prece- Indeed, dent in the instant case. other courts have unwilling been to impose such an onerous duty except where an assumption there is of the duty special, controlling some relationship between the manufacturer and the owner of the machine.

E Plaintiff maintains that Cincinnati assumed such a continuing duty to act and reasonably modify on the postmanu- basis its facture relationship with plaintiff’s employer. He bases this on two service repair calls to the ma- However, chine. if recognized even we this theory of liability, we do not discern this necessary as- sumption or controlling relationship.

In Noel v United Corp, Aircraft 232, 342 F2d (CA 3, 1964), 241 the court found a duty or recall on the basis of a continuing relationship between the defendant operator agreement aircraft.35 The parties between the re quired the defendant to examine the aircraft "as it now stands” to determine whether a catastrophic possible. result was relationship, This the court held, indicated that the manufacturer assumed postmanufacture obligation and accordingly could be negligent found for breach of it.36 Smith, 406, 411; In W M Bashlin Co v 277 Ark 643 SW2d 526 (1983), Supreme Arkansas Court intimated that such a may "body recall a exist in other contexts such as a belt” used to secure person working power high ground. on lines located above 35 arguably We note that the court held that such a existed because a posed defect existed at the time of manufacture significant ship. However, regardless any controlling risk to human life relation opinion rehearing on demonstrated dissatisfaction ground explicitly with that continuing alone and thus relied on this relationship. note, liability—Post-sale duty dangerous See Products to cure defect, (1966); Co, Boeing 40 Tulane L R 440-441 O’Keefe v 335 F (SD 1971). 1104, 1130 NY, Supp Mich Opinion op the Court Noel, jurisdictions Since other adopted have continuing similar unique the basis of a postmanufacture relationship between the manu- facturer and the the product.37 owner of For exam- Bradshaw, ple, in Bell Helicopter Co v 594 SW2d (Tex App, 1979), Civ the défendant manufac- a helicopter tured with art state tail rotor In 1968, however, blades 1961. the defendant to update decided to improve blades An safety. accident occurred in 1975 because of the failure of these originally Realizing manufactured blades. product the must have been it defective when left the of the hands manufacturer the 1961, was not defective the court based finding postmanufacture its negligence on relationship between the defendant and its author- held, ized service station. The court as a- matter of law, the service station had control helicopter after the sale and after development improved and, the tail system, rotor accordingly, assumed duty to remedy product:38 reflects, case, the record as in this [W]here an apparent assumption a duty such a manufac- turer, wholly is not improper for tous measure against its plaintiff’s allegations duty respect conduct such with post-manufacture negli-

gence. Here, duty assumed the [the defendant] improve upon safety helicopter by of its replac- ing the system with 117 system. Once the assumed, duty was obliga- had an [the defendant] complete tion to means remedy by using reasonable to it replacement available to cause of 102 systems systems. with 117 [Id. 532.] In this persuaded arewe not that plaintiff note, prevention continuing obligation: Efficient accident as a See products, 103, (1989). to recall defective 42 Stan L R 110-111 38Id. at 531-532. v Cincinnati Opinion op the Court proved a continuing relationship sufficient to im pose such a duty.39 postmanu There were two only calls, facture service one in 1967 and one in 1973. These calls were technicians, effected by service not safety representatives or salespersons; Cincin nati was simply repair machine, asked to this provide a safety Shapiro evaluation. v Reming 1958). Co, (CA ton 7, Arms 259 F2d Moreover, Cincinnati never voluntarily assumed a as manufacturers did Noel and Brad shaw and certainly regain did not control of the Although machine.40 Cincinnati forwarded nearly thirty mailings documenting safety op various tions, this does not create unique such a or con trolling relationship as to justify product. recall mailings These presumably were sent out regularly to all Cincinnati custom ers. When by plaintiff’s asked employer provide quotations updates in accordance with the 1970 law, provided information. osha event, any judge premise In ruling any the trial did not his ongoing relationship plaintiff’s employer. between Cincinnati and Instead, judge premised continuing duty on the basis that "[ejvidence changed by safety was introduced to out that standards were law at some after the machine left the manufac turer and before the accident involved in this the factors that and that’s one of might lead a reasonable trier of fact to determine continuing duty that there was of some sort.” agree Appeals analysis We further with the Court of of the trial ruling: court’s response court’s to [T]he defendants’ motion for a directed regard continuing-duty theory respon- in

verdict to the was not sive to the concern raised a directed verdict the motion. Defendants moved for arguing theory continuing duty that the of legally ground imposition liability. a sufficient for of Thus, responded by concluding when the trial court that there presented jury was sufficient evidence that defendants breached that to the allow to conclude duty, overlooking the court was possibility theory recognized law, the that the was not one regardless evidentiary support may amount that have App existed on the record. Mich [202 483.] 40 1991). Co, (Tex 302, App, See Dion v Ford Motor 804 SW2d 310 1 450 Mich Court however, again, Once did nothing to a create controlling relationship. facts,

Accordingly, on these there was insuffi- cient proof a duty assumed to or recall brake because some special, controlling relationship with In. smi. twenty years that smi used press, only two service were performed, calls there several were regular mailings, request and there was one for price quotations. any unique This does not create controlling relationship so provide as to impetus a continuing duty instruction. Accord Int’l, 1984). Syrie v Knoll (CA 304, 5, 748 F2d

IV We turn next to consideration duty of a to repair or recall when postmanufacture advances product render as originally released obsolete or unreasonably dangerous under technol- today’s ogy.

Generally, manufacturer is under no to duty product modify its accordance with the current The manu- Note, state of the art safety features. duty facturer’s notify subsequent im- safety provements, (1981); Reeves, 1087, Stan L n R supra 561.41 at This is because duty modify "[a] is incompatible with a rule making liability turn exclusively whether meets the state of the art at the production.” time of 33 Stan L R 311-312; supra Shapiro, Syrie, supra. See also But see Ellis v 1960) Finke, Inc, (CA 6, law, (applying H S 278 F2d 54 Tennessee suggested modify court in dicta would there be a product); Noel, ("It negligence, supra Manufacturer’s n 19 at 826 safety easily would seem where a device can be attached and will remedy danger, steps a real there should be a to take reasonable safety supply product already to has been (La device even to those whom the sold”); Corp, Lanclos v Int’l Rockwell 470 So 2d 930-931 1985) App, ("continuing provide safety they as devices available”). become v Cincinnati Opinion op the Court making n 2. This Court previously declined turn on the state of the art at the time of liability Prentis, supra. trial We Dean rejected Keeton’s approach, which would weigh utility the risk and trial, product of the at time favor of position, imposed Professor Wade’s which the risk- utility balancing at the time of manufacture or Prentis, supra sale. 699-700. however,

More importantly, imposing duty to update place would an technology unreasonable burden discourage manufacturers. It would manufacturers developing designs from new if this could form the bases for suits or result in costly repair and recall campaigns.42 light

In of the traditional focus of Michigan products liability law and the onerous effect on manufacturers, recognize we decline to such a duty.

v light In foregoing, we review whether error in requires this case reversal. We note at the outset proof there was some offered negli- gent design as of 1964. only question The whether, contend, as defendants continuing Lynch, supra See n 16 at 440-441. imposition post-sale obligations The tort law that include products remedy replace already

the place ufacturers liability in the market- significant implications. Attorneys has man- who counsel obligations about how fulfill their and avoid by developing must inform them that new and safer products they may an older exposed liability be for harm caused improvements safety made and sold before the developed. may discourage very were This advice conduct society penalized by attaching marketplace Progress seeks to foster. and innovation should not be go to them a out into the [Schwartz, products. post- to find and fix old warn, supra sale n 30 at 900-901.] Mich the Court of and accompanying its tainted theory evidence this permissible finding negligence. otherwise of We it hold that did.43 Cavanagh postmanufacture 43 Justice the contends that evidence invited, "unpreserved part was or harmless” and a of the defense 37, strategy.” disingenuous "trial Post at 39. This characterization is Cavanagh’s opinion.

belied the record and Justice own pretrial limine, objected made a motion in to introduced evidence trial, ground. and for a moved directed on this verdict These facts are Moreover, not invited, in his indications invitation or waiver. if the claim was following counsel defense would not have made the remarks opening postmanufacture regarding statement evidence: things may I am sure on some come into this case. things Mr. Eaton referred to some that be recalls that [sic] perhaps the defendant after 1964 should have or recalled done something exactly further. I am not sure what evidence will does, come into the case but if it there is a little different bit presently you going focus. As the case is framed to are be asked judge to whether it’s whether the machine was defective in that is unreasonably dangerous, operate. was it safe to ’64, get post case, If into we this if turns out to the be up ’86, that’s then no dangerous actions of Cincinnati were until the date of the accident which I said was longer is the focus on the machine and it whether was safe, or whether it but was now the will be focus the Incorporated and whether their actions not; negligent completely get different focus. if we So area, ’86, proposition into you this ’64 to our to and our suggestion prudently. didn’t are you reasonably to will be we acted and we acted injury Gregory The risk of to someone like Mr. change '86, from ’84 it remained same. [sic] the We say going nothing that other manufacturers did different manufacturers, any than our were the nor did we refer to codes that fact, you find, may to. In referred what if it comes into is between those two dates is Cincinnati offered this palm company dual buttons. We believe—I am if not sure my you will come in or not so [sic] words will have to check at the end of this case whether comes in this or not—in about 1978 company update they asked about an asked asked [sic] paul company, us about dual And [sic] buttons. this this man’s eight employer, quotation; accident, gave months before we them a quotation palm dual included buttons take operation pedal this machine from the of their foot now to the operation they declined, though they two buttons and chose buy originally apparently. from us reaching proofs trial, stage When in objected defense counsel instances, many consistently but was overruled. Defendant then reasonably post shifted focus to show that it acted manufacture. Cavanagh’s opinion simply disregards Justice record. portion Indeed, his selective citation from defense witness Donald v Cincinnati Opinion op the Court statement, In the opening plaintiff’s counsel emphasized that Cincinnati to fix "had machine,” part in relying on osha standards in 1971 requiring employers to install guardings. Counsel then introduced this evidence the cross- (called examination of Cincinnati’s representative witness). as an adverse Plaintiff also elicited testi- mony about use of sensing electronic devices (at developed States; after least in the United they apparently were used in Scotland before 1964), postmanufacture and Cincinnati’s service Wandling disregards nearly thirty pages testimony recorded explains why why he which plaintiff’s proof to proper opening created brake not defective misleading applied was a defect and inaccurate as Cavanagh’s particular citation, given this machine. Justice when context, supports might what defense said counsel occur in statement, respond plaintiff’s newly in a shift focus to to theory. liability Cavanagh’s Contrary suggestion, to Justice the osha evidence was specific support presented objection by plaintiff, admitted over defendant’s and defendant, alleged duty repair not in to order the to or recall. through Cloutier, Plaintiff did this its second witness Dennis who plaintiff called as an adverse witness. Plaintiff then used the osha negligence through standards to demonstrate its witnesses as well as commentary closing arguments. opening with counsel’s on it in and (Plaintiff’s opening key point. to the statement: "Then we come After government ’70’s, required early this in the made this a matter ’70’s, early government duty placed respect in law the with to employers, go Cincinnati Machine did not in itself back at this which, point and offer to fix the machines knew it or should have [Emphasis known were in fact were defective.” Plaintiff’s added.] closing questionable, government statement: it had "After been after mandated, had after the MERK News had came out with new making mandatory, again, they standards Cincinnati do it? did What did they go say help you pay Did machines do? out and we will No.”) manufacturing inescapable for premise cost of these machines? testimony of these and that statements is the osha standards provided repair duty created or basis for a to or recall the contending during machine. This is far different from Cincinnati its presentation Metal that it not breach did its in but that Sheet law, duty imposed by its Industries breached and thus Indeed, proximate plaintiff’s injuries. sole cause of the fact that postmanufacture defendant later used these standards to shift the and, believed, surprising blame Sheet Metal Industries is not if to event, Michigan any specific consistent with objections eventually law. In defendant made ground, right appeal waive and did not its as Cavanagh’s opinion deeming by Justice when conceded "preserved.” error at 44. Post 450 Mich Opinion op the Court calls resulting quotations ’s employer update the machine to comply with the 1971 law.44 During questioning, defense counsel’s osha objection on grounds relevancy was overruled. Plaintiff questions then elicited about Cincinnati’s failure to recall the machine.

Furthermore, plaintiff’s only expert opined that if Cincinnati discovered after 1964 brake was defective having adequate guarding, it "had a correct defect machine,” that, had, if it the accident would not addition, have In occurred. over defen- dants’ objection, plaintiff admitted a photograph of a foot pedal guarding despite the inability to iden- tify any manufacturer having such a device in 1964.

In closing argument, plaintiff’s empha- counsel sized that Cincinnati had twenty-two years to fix the press brake and never did so. Plaintiff also contended that Cincinnati failed to act even after the 1971 osha law. Counsel concluded the continu- ing argument by noting that did nothing because it did not want to pay for it.

Hence, the evidence argument of counsel indicates repair and recall were primary is sues for jury Indeed, consideration. the record logically contains contentions that Cincinnati had a duty or recall on the basis of the 1971 law rather negligent than conduct at osha time of manufacture. The evidence adduced after 1964 was irrelevant and prejudicial because invited the jury to improperly postmanu focus on facture technology in assessing Hence, negligence. despite the evidence of a design defect based on 44Plaintiff contends that defendants introduced this evidence. We disagree. plaintiff’s The record indicates that counsel elicited this on cross-examination of Dennis Cloutier who was called as an adverse witness. v Opinion of the Court evidence,

pre-1964 post-1964 evidence adduced of continuing because duty theory clouded the jury’s finding of liability. There is no indication in the record that defendants would have defended grounds on of reasonable conduct post manufac ture plaintiff’s absent continuing assertion of a duty.45 It merely would have attacked the risk of utility its choice on the merits offered the negligence defense of part of plaintiff and smi as the only legal causes accident.

Moreover, we find that the jury instructions further confused and tainted the jury’s finding of liability.46 After providing proper instruction re- garding negligent design, the judge explained trial the manufacturer has a further duty to incor- porate new in technology advances prod- into the 45We do not address whether a manufacturer can relieve itself of liability by taking prevent reasonable measures to an accident independent intervening party. event of a third See Ford Motor Wagoner, 392; (1946); Co v Improved 183 Tenn 192 SW2d 840 Balido v Inc, Machinery, App 633, 649; Rptr (1972); 29 Cal 3d 105 Cal Noel, negligence, supra 870; Harper, Manufacturer’s n 19 at James (2d Gray, ed), note, however, & questions Torts 28.7. We § that these would be Balido, jury. 649; supra Comstock, of fact for supra at question 179-180. duty, an attack Such would not a but causation. theory simply This not offered in this case. Cavanagh agree We proposed with Justice jury that defendant’s possibly instructions respect would have made the error with Nevertheless, earlier, Cincinnati harmless. introduction of the instant as stated we deem the postmanufacture evidence and its accom panying duty weighing to be error. This entails a of various interests, or design plaintiff appropriately Legislature all of which are more left to the agencies. emphasize proof administrative We further of a manufacture, believed, defect at the if entitles a recovery. postmanufacture duty nothing to full A serves but finding negligence. to confuse or taint this Cavanagh’s postmanufacture Justice contention that evidence re- misguided. Prentis, lates to the standard of care is only Under inquiry point-of-manufacture conduct, relevant concerns the not the conduct after the Only leaves the manufacturer’s control. if a postmanufacture duty existed would this conduct be relevant to an postmanufacture issue in this case. We find that there is no and, hence, this case no need for consideration the standard of care Cavanagh to which Justice alludes. Mich Opinion of the Court uct without any frame, i.e., limitation or time during the design phase. This was followed by an instruction that "a manufacturer who learns of a design defect after product has been sold has a duty to take reasonable actions to correct defect.” Again, no time frame was provided, thereby inviting the jury to find liability basis of improvement in technology post manufac- ture. Further oral instructions and the verdict form asking jury to determine whether Cincin- nati "negligent in one or more of the ways i.e., claimed the plaintiff,” recall, or confirm this possibility. Accordingly, Cincinnati is entitled to a new trial. There is no simply princi- pled means to find these errors harmless.

VI Against a seller who is not also the manufac- turer, the claim is usually premised implied on an Prentis, warranty supra theory. See 693; Elsas- ser v American Corp, Motors 81 Mich App (1978). 384; 265 NW2d 339 This theory requires the plaintiff prove that a defect existed at the sale, time of which is normally framed in terms of whether was "reasonably fit for its intended, anticipated reasonably foreseeable use.”47 Id. However, like a claim against the manu- facturer, a design defect still must exist at point of sale.

Although plaintiff’s claim in this case was one in warranty, we persuaded are the extensive postmanufacture evidence tainted and influenced the jury’s finding of liability, regardless of instruction that restricted the jury’s consideration to the time when left Addy-Morand’s many jurisdictions regard While liability theory, this as a strict Madden, supra, 8.8, 317, p § this Court has not ruled on the issue. In express opinion we no on this issue. v Cincinnati Opinion op the Court against

control.48 Liability prem- a manufacturer ised on a that a theory defect existed at hand, manufacture. On the other liability against hinges a seller on a defect existing at the point sale, point which is a later than the time case, manufacture.49 On the facts of this where there proof is no or mention of negligence against seller, the only proof the jury could possibly review in order to find liability against the seller is the However, against evidence offered the manufacturer. above,

as noted the postmanu- extensive facture evidence tainted finding of a defect against a facts, manufacturer. On we find no these reason to believe that postmanufac- extensive turing evidence did not also taint the seller’s verdict, even assuming that against evidence the manufacturer could establish liability against the seller. Contrary to the suggestions, dissents’ unique proofs and theories in this case ob- struct our ability accurately decipher50 the jury’s finding against the seller on the basis of a time-frame limitation regarding a defendant whose only reference at trial was it sold the product.51 Instead, we can safely conclude that postmanufacture evidence likely tainted the deter- minative inquiry for both defendants—negligent design as of 1964.__ persuaded by plaintiff’s 48We are not Addy-Morand contention that objection liability. Addy-Morand’s

waived its case, design requiring ily questioned. liability, to its in this substantially liability was similar to Cincinnati’s because a Hence, defect had to exist at the of sale. if it was error Cincinnati, Addy-Morand’sliability reversal for is necessar 49This is true when the manufacturer and the seller are different entities. say jury comprehend forget We cannot that would not or postmanufacture throughout extensive support evidence offered this case postmanufacture of these duties. 51 closing argument, argued jury In defense counsel to the that no negligence presented against Addy-Morand. evidence of On rebut tal, plaintiff’s respond any theory counsel did not with other or evidence of a breach. 450 Mich 1 Dissenting Opinion by Cavanagh,

VII At issue in negligent design case is the important question whether a manufacturer has a postmanufacture repair recall a product either found originally defective or defective in light of improved In technology. either ab- sent some assumption of a duty or some control- ling relationship, we elect not to impose such an onerous duty on manufacturers. The economic effect of such a duty is left appropriately agencies administrative Legislature. When a product is originally defective and proof of that advanced, a continuing duty or recall theory serves nothing but finding of negligence. When to cloud the initial is ren- dered defective in light of improved technology, the commensurate effect is to discourage improve- ments if technology improvements the can later serve as a basis of liability.

Because evidence at presented trial theories of repair and recall stemming from both initial de- sign decisions and subsequently enacted standards rendering the product dangerous, we reverse the judgments against both Cincinnati and Addy- Morand. Postmanufacture evidence was irrelevant and served to taint any finding of negligence at of manufacture. Because liability in this against case both Cincinnati and Addy-Morand required the finding defect, reversal mandated for both defendants. Accordingly, we affirm the decision of the Court of Appeals and remand for a new trial. Boyle

Brickley, C.J., Weaver, and JJ., Riley, concurred with J.

Cavanagh, J. I I respectfully dissent. believe v Cincinnati Dissenting Opinion Cavanagh, seller, against Addy-Morand that the verdict I' should be reinstated because believe that no error with respect Addy-Morand. occurred Addi- evidentiary points I believe that tionally, respect error against with to the verdict the manu- facturer, Incorporated, were either un- preserved harmless.

i majority states that in an action properly against seller, a nonmanufacturer must "prove that a defect existed at the time of ante Riley, J., Yet, sale . . . .” 34. the majority "regardless reverses instruction that re- jury’s stricted the consideration to the time when control.” Id. at 34-35. Addy-Morand’s left The majority postmanufacture reasons evi- dence tainted the jury’s verdict.

However, Addy-Morand was never mentioned in the substance of It the trial. was only mentioned during instructions, voir dire and in the jury there no independent relating evidence solely to Addy-Morand. More none of importantly, postmanufacture evidence related Addy- Further, Morand. the jury relating instructions Addy-Morand clearly restricted the focus to jury’s moment the point-of-sale. Additionally, Addy-Morand never objected to anything may have confusing been in the jury instructions. I would respect hold no error occurred with against Addy-Morand. Consequently, verdict I would Appeals reverse the Court of and reinstate the verdict.

ii respect I will now turn to the verdict with to the 450 Mich 1 by Dissenting Opinion Cavanagh, manufacturer, Incorporated. In this case, negligent-design products postsale liability evidence in safety about advancements technology about the manufacturer’s was pre- conduct sented to jury part continuing as of a However, I theory. do not that the postsale believe support evidence was theory used that have been made safer product should technol- were, ogy post discovered sale. If that then clearly the "continuing” duty theory would However, have been improperly presented.1 after a thorough transcript, review the trial I believe that this was not using rationale postsale evidence. plaintiff

The sought to show that as as early 1890s, the industry knew that unguarded controls could cause injuries. plaintiff serious The also introduced, great deal of concerning evidence technology that was available the 1950s. All of which, course, presale. was pre- The sented substantial evidence this brake defective, is, was was unreasonably danger- ous, at sale. plaintiff’s theory was that Comstock v General Corp, Motors 358. Mich 163; 99 (1959), recognized a continuing NW2d 627 duty to an risk that rectify unreasonable present at the date of sale. The postsale evidence therefore was relevant with regard the standard of care. I would conclude theory was not erroneous.2 curiae, As the amicus Michigan Trial Co, (CA 1444, 10, See Romero v Int’l Harvester F2d 1992): notify previous purchasers manufacturer has no [A] products devices, later-developed safety its about or to ret- products products

rofit those when the were non-defective existing under standards at the time of manufacture. Co, This Court stated in Gerkin v Brown & Sehler 177 Mich v Cincinnati Opinion by Dissenting Cavanagh, J. suggests, Lawyers Association, there is possiblepost-sale a continuum of duties which the might impose,ranging duty law from to warn a repair to issue a recall to an affirmative are, addition, a defect. There in numerous facts would other which have to be assessed an case-by-case determining individual, basis in the appropriate scope post-sale of a manufacturer’s price product, duty—the original num- of the the knowledge sold, of present ber units the manufacturer’s of product, of the defect discovered haps danger users the the of the nature per- and, after the of date sale magnitude important all, most of the of the exposed which has been since the sale date. jury product the Once unreasonably determines that the was dangerous sale, at the of it would then have to the determine standard care and whether the defendant’s reason- actions were light dangerousness. able, in of that unreasonable In this the trial court erred it because did clarify jury jury not instructions first had to determine that the unrea- was sonably dangerous sale, at the time of before postsale could consider evidence determin- ing whether Cincinnati breached the standard of partly However, care. is also at fault confusing presenting postsale by the issues jury. evidence and theories to the I find postsale presented by bulk of the evidence was theory try defense. defense’s was to to shift dangerous the blame for a machine onto owner employer machine, of the plaintiff. who was the strategy. This trial Much pertained Michigan require- evidence osha apply ments, which of course did dants, but instead the defen- applied to Sheet Metal Indus- 60; (1913), 143 NW 48 there is a to warn concealed of protection dangers precaution "to exercise a reasonable for the peril others commensurate with involved.” 450 Mich Dissenting Opinion Cavanagh, tries, the owner of the machine and the employer plaintiff.

hi A review of the highlights of the trial where the postsale references occurred is instructive.

During limine, motions in the defendant3 ob- jected any theory of continuing duty. The trial court stated: The Court has instructed defendant in that re-

spect, to objections make his any at time that such evidence or comment is offered even if it is unfor- tunately at a in which he must interrupt an opening statement. Therefore, obligation was on the defense to object particular to the evidence or comment in preserve order to its objection.

During plaintiff’s opening statement, coun- sel asserted: unguarded contend that the pedal [W]e foot . . . unguarded point and operation design were defects and that . . . Cincinnati . . . knew or should have known that such flaws could type cause the injury that Mr. suffered prior

both selling to Sheet Metal Industries from 1964 and at all times from 1964 until day that Michael Gregory injured. was [Emphasis added.] There was no objection. later,

Continuing plaintiff’s counsel stated: Then we key point. come to the gov- After the required ernment ’70’s, in early this made this Addy-Morand represented Cincinnati and during were the sub by single attorney. stance of the trial a Gregory v Cincinnati Cavanagh, Dissenting Opinion ’70’s, early government

a matter of law in the placed respect employers, a with to the Cin- go in cinnati Machine did not itself back this point and offer to fix the machines it which knew have known . . . should were fact defective. offered, price, Instead it ... to come guarded add two hand controls and foot switch prevented which would have this accident from . . . . . occurring. The evidence will . show conclu- sively dispute, that there real they is no that never offered once to recall the .... machine issue, Their case boils down to a sacred and the plaintiffs expect the evidence to show Cincinnati defendant Machine had a to fix the machine .... will evidence show between that fateful date in 1986 when lost Michael much of again hands that his learned time and unguarded pedal foot and that unguarded point ers’ operation smashing work- fingers nothing, and hands but did it stood guard path

back and denied its which it had created. the direct [Emphasis added.] no objection. There was the defense’s statement,

During opening counsel contended: presently going As the case is you framed are to judge

be to asked whether the was machine defec- unreasonably tive it’s whether dangerous, operate. was it safe to ’64, get post If into that’s we this if that turns out to case, up be the until the date of the accident ’86, longer which I said was the machine and whether then no is the focus on dangerous it or safe, it was whether but now the will be the focus Incorporated actions of Cincinnati and whether negligent not; their completely actions were area, get different focus. So if ’64 we into this to to ’86, proposition you suggestion our to and our you be we reasonably will acted and we acted 450 Mich Dissenting Cavanagh, prudently. The risk of injury to someone Mr. like Gregory mained the same. We are manufacturers did change ’86, didn’t from it re- ’[6]4 going say that other nothing different than our man- ufacturers, nor did we any refer to codes that were fact, find, referred to. In you may what if it comes into the is between those two dates is Cincin- nati offered to company palm this dual buttons. We believe—I am not sure if it will come in or not my you so words will have to check at the end of the case whether this comes in or not—in about company this asked update about an and they asked ... paul us about dual buttons. [sic] And months before the tion; company, this employer, eight man’s accident, gave quota- we them a quotation palm included dual buttons to take pedal they operation this machine from the of their foot operation now the though they of two buttons and declined, buy chose to from us originally apparently. [Emphasis added.] Therefore, the defense also indicated that it would counter postsale with evidence.

The called an as adverse witness defendant’s coordinator, services Dennis Cloutier. The plaintiff question asked a that was not fully responded to: you agree Do that a obliga- manufacturer has an

tion, informed dustry obligation has keep keep abreast a[n] developments within the in- with[] safety [the] brake[s]? responded witness that he guessed that reasonable designer Note, would. question pertained could have strictly presale obligations; moreover, there was objection. no

Later, the witness testified: Q. When did first [Cincinnati] manufacture[ ] two hand controls? Gregory v Cincinnati Dissenting Opinion by Cavanagh, A. up I it experi- believe first showed on some ’40’s, 1948,

mental in machines ’47. Q. did it presence When first use electronic devices, press brakes?

A. in country Those were first introduced this in they and that’s when were first used. Q. they When were first used in Cincinnati’s subsidiary Machine in Scotland. Mr. going Goebel I am [Defense Counsel]: object that’s not relevant to 1971 [sic 1964?]. I

The Court: will it. allow I Witness: believe there a few ma- were Kilbrite, Factory, chines in East Kilbrite East ’67, ’60’s, Scotland. Some of the machines middle ’68 photo Europe being had some devices from put[ on them over there. ] Sir,

Q. moving period forward to after did there ever come a time that the U[nited] Department of Labor made it a matter S[tates] law that pedal guards brakes have foot two-handed controls?

MyA. familiarity Occupational Safety with the and Health Act of specify type is that .... does safeguarding [Emphasis added.] Continuing later: Q. Now, Machine, did Cincinnati with the

knowledge of the hazards associated with use guarded point operation of a pedal, unguarded foot you provide did ever fact offer to particular [sic, manufacturer with two- owner] handed controls and an electric foot switch? Yes,

A. sir.

Q. guarding? As to Mr. objection Goebel Same as Counsel]: [Defense relevance, post 1964. it’s

The Court: I will allow it. A. I initially correspondence believe we sent subsequent Sheet Metal Industries 1976. And 450 Mich by Dissenting Opinion Cavanagh, 1978, update requested quotation they that in quoted again it and we and convert their machine [Emphasis in 1978. added.] particular point preserved by objection. This was regarding price Questioning continued whether in fact ever quoted Cincinnati and recalled the machine. defense counsel day, questioning by

The next continued: Cloutier, Q. may claim in this Mr. there be a after of sale of this machine but case that the date Mr. was hurt that Cincinnati

before something help prevent should have done accident? Yes,

A. I have heard that. about the na- questions The defense’s continued timing mailings ture and from 1970s, through require- Metal Sheet osha ments, development, photo- and a safety new 1970, out in electric device. This new device came and Cincinnati mailed to Sheet Metal information ques- it. counsel also extensively about Defense post-1964 tioned the witness about service calls. Youngdahl expert The called Paul as an testimony pre-1964 witness. Most of the concerned At technology knowledge and of risks. the conclu- examination, plaintiff sion of direct asked about a breach of duty. witness answered: my opinion In if A. Cincinnati had not discov- injury

ered the hazard and risk of provide operation protec- any thus didn’t tion and then that hazzard discovered [sic] time, my opinion they had a risk at some later I duty to correct that defect in the machine. am saying they not necessarily should have corrected it cost, they I should at zero but believe Gregory v Cincinnati Dissenting Opinion Cavanagh,-J. have corrected it minimal purchaser cost to the of the machine. Doctor, Q. you do opinion have an to a reason- degree engineering able certainty toas whether Cincinnati’s failure to correct the defects on [the] number nine ory brake which Greg- Michael injured, caused or contributed to Michael Gregory’s hand to be crushed?

A. opinion. I have an

Q. your opinion? What is A. my opinion, In if Cincinnati had corrected the hand defects in by putting this brake on two- controls, example, an any prior as time to the injury, the . accident . . hap- would not have pened. [Emphasis added.] There again no objection.

On by counsel, cross-examination defense plaintiff’s expert testified: Q. your opinion is, I assume since the buttons or operator protection

some other were not on in 1964 that the machine reasonably was not safe to operate?

A. Yes. Q. You’re critical Cincinnati ’64 between ’86 they because something didn’t do about that?

A. I am. Q. argument Let’s assume for the sake defective, machine is wrong. is Let’s that, argument, take this okay. assume Doesn’t somebody 22 buys who a machine in ’64 it and has years a responsibility update have that ma- chine?

A. I . . think . fact,

Q. [is], In that’s what the law isn’t it? A. I opin- don’t know my about law but it’s they ion should. You you? know about don’t

Q. osha, 450 Mich Dissenting Cavanagh, A. Yes. into effect

Q. You know that osha came 1971? approximately

A. I do. Well, Q. put way. Certainly it a different let’s requirement the Fed- 1986 the under well before bring upit regulations was for the eral use[r] agree You would with that? standard. dangerous agree they A. I if have a ma- would chine, [Emphasis put protection on it. osha said added.] later,

Continuing, again defense asked: Q. only you So not does that document you, have front of but osha says employer, person up who owns the machine and sets going parts responsibility is to make has a provide point-of-operation protection; that not true? Yes, jurisdiction A. osha has no over the manu- [Emphasis facturer. added.] strategy The defense’s was to shift the blame owner-employer, Sheet Metal. At plaintiff’s proofs, the close of the defense for a directed verdict on two counsel moved First, grounds. continuing theory that Second, go jury. proofs should not to the that in 1964. regarding failed a defect The denied court first, to the court grounds. both As trial stated: point safety Evidence introduced to out that changed by standards were law at some after the manufacturer and the machine left before . . . accident involved in this of the factors that and that’s one might of lead a reasonable trier continuing duty that there was fact to determine of some sort. v Dissenting Opinion by Cava.na.gh, submitted, mostly There has also evidence be[en] defendant,

by the that would indicate that apparently defendant felt to some inform of machines changed owners technology to offer a changes. to its that laws had and changed prepared had and that it was price procedure making and a for those things all up And of those I believe add enough present of question that fact to the [Emphasis of trier fact. added.] The trial court was in error a regarding arising because of changing safety standards. How- ever, this statement out presence occurred jury. Wandling, defense called Donald a consult- ing engineer. examination, On direct he testified: Q. Let you, me ask ’64 ’86 between there is mailings

in evidence Exhibit a number Cincinnati an nati you to Sheet Metal Do Industries. have opinion whether it was for reasonable Cincin- sent types mailings have those to this gentleman’s employer?

A. Yes.

Q. your, What your opinion? what’s A. It was reasonable do so. Q. Let hypothetical me question? . . . [m]ake unsafe,

Hypothetically this machine ’64 is it’s defective, something doesn’t have it should operation. going have work it’s not am safe I premise, from okay?

A. Yes. Q. assumption And I want to work also from an 1971 approximately govern- the Federal passed regulation ment regarding safety use and operation you brakes. I want to assume that also?

A. Yes. Q. you opinion Do have an whether the owner of machine responsibility bring the machine has the up safety to then current standards? 450 Mich 1 Dissenting Opinion Cavanagh, A. Yes.

Q. opinion? your What’s the, My opinion A. is the owner have does [Emphasis responsibility to do that .... added.] Again, strategy. this was the defense’s trial cross-examination, asked,

On the witness was objection, many injuries without how Cincinnati respect knew of with to this machine before 1986. He questioned mailings was also about from Cin- cinnati to Sheet Metal in the 1970s. by subpoena

The defense also called Charles Collier, Michigan Department employee Labor occupational safety inspector. who was an He was questioned regulations about in the 1970s and as existing in 1986. regarding

The conference discussion proposed jury closing argu- instructions occurred before objected ments. The defense to the court’s failure to include instructions that would have stated that the duty ends at the time of sale. The defendant particular objected following proposed to the in- structions the court give: did not

[Proposed] 7: Jury you Instruction No. When deliberate proves it is defective when it left the to determine whether the evidence any product, that there was defect with the your duty product if determine was possession of Cincinnati Incorporated Incorporated in 1964. Cincinnati art, judged by industry not to be the state of the practices, subsequent produced or evidence or made known product to the sale of the in 1964. plaintiff alleged 8: No. has prove brake was defective in 1964. In order claim, prove must that Cincinnati Incor- porated negligent or the was defective upon when it leñ Cincinnati based knowledge existing and standards in 1964. [Em- phasis added.] Gregory v Opinion by Cavanagh, J. Dissenting Michigan The court reasoned that the cases indi- continuing cated that there a I duty theory. was the failed erroneously give believe court these They instructions. would have clarified that the first jury had to find a 1964 before defect turning to the of of issue standard care after 1964.

During closing argument, plaintiff referred post-1964 to the as pointing evidence to the defen- dant’s failure to steps exercise reasonable cor- recting defect. The defense basically countered steps it took were reasonable. instructions, At the start of jury the trial court thanked the jurors gave them the usual instructions dence, about their examine the evi- evidence,

the use of circumstantial proper statements, use of inconsistent etc. The care, court then negligence, proxi- defined ordinary mate cause. The court continued: However, you proximate if decide the only was injury cause Industries, the conduct of Sheet Metal suit, not party which is a to this then

your verdict is for the defendant. employer The Sheet Metal Industries has stat- a utory duty place employment furnish of free recognized from causing likely hazards or to cause or bodily death injury. serious After explaining proof burden and com- parative negligence, the court continued: "implied I warranty” When use the words as to Add[y][-]Morand Company, I duty imposed mean a

by requires which law that the seller’s be reasonably or purposes fit for the and uses intended reasonably by the seller. will foreseeable We proof talk about the burden as this claim of implied warranty. breach proof burden on each of h[a]s following Add[y][-]Moran[d] as Company: Mich 1 by Dissenting Opinion Cavanagh, First, press reasonably that the was not fit brake purposes anticipated for the or uses [sic] reasonably by Add[y][-]Moran[d] foreseeable Ma- chinery Company in ways one or more of the plaintiif. claimed Second, reasonably that the brake was purposes anticipated fit for the uses or or reason- ably Company control. by Add[y][-]Moran[d] Machinery foreseeable Addjy][-]Moran[d]’s the time it left

Third, plaintiif injured. that the was Fourth, operator protection injuries that the lack of proximate plaintiif cause of the to the complained of. Incorporated duty had a to use rea- designed sonable care at the time it and manufac- press tured its brake so as to eliminate unreason- able ably against pated. injury risks harm or which were reason- duty guarding This foreseeable. includes misuse, reasonably when is antici- misu[s]e However, duty design the defendant had no to and reasonable risk of harm or its brake to eliminate manufacturen injury or risks that reasonably were not not The law does for[e]seeable. impose duty on a manufacturer to make an accident-proof machine. degree Reasonable care means that of care reasonably prudent which a manufacturer would you exercise under the circumstances existed in this case. It is for on the facturer stances. find which decide, you to based evidence, prudent reasonably what a manu- do not would do under those circum- A fulfill duty failure to to use reasonable negligence. care is [k]eep A manufacturer has a further to developments abreast of and be informed of the design safety, the held of to manufacture and incorporate reasonably safety advances in new technology design into the and manufacture of its Gregory v Cincinnati Dissenting Opinion by Cavanagh, obligation product. part There is no on the possible provide every manufacturer to which new device possibly might have or in- been conceived vented. Further, of a manufacturer who learns defect after has sold has a been take It reasonable actions to correct the defect. you determine what constitutes reason- [Emphasis able actions. added.]

I keep believe that develop- abreast of ments could clearly interpreted be as pertaining presale The obligations. latent defect instruction is straight arguably from the Comstock case. There- fore, I hold that would the instructions were incomplete. improper—just court trial continued with instructions on It

comparative negligence. gave then instructions damages on applicable were both Cincin- Addy-Morand. nati and It concluded with instruc- tions how the jury should deliberate and how to fill special out the verdict form.

Five of six jurors agreed that Addy-Morand liable, liable, that Cincinnati was million, total damages were $1.5 percent was thirty-three at fault. iv conclusion, In I preserved believe that error occurred because the trial court did not the clarify manufacturer, jury regard instructions with to the Incorporated. give The court failed to the proposed defense’s instructions that would point design have limited the determinative for a point Further, defect the of sale. the trial court give did an instruction that a manufacturer has a steps take reasonable after a defect discovered, i.e., is a latent defect. While this latter 450 Mich 1 by Levin, J. correct, point arguably confused the issue plaintiff’s because the was that the defect theory point existed at the of sale. The court should have clearly emphasized postsale more that conduct related to the standard of original care—not to the finding of defectiveness at the of sale.

However, I any believe that error was harmless because there was substantial evidence that the press unreasonably dangerous brake was under 1964,4 prevailing the standards and because the postsale presented evidence was primarily by the defense as trial strategy, presented by or was the plaintiff without objection. pre- The one or two error, served evidentiary points relating to post- were technology, arguably waived by statement, opening defense’s or were waived by the defense’s trial using postsale strategy safety standards to support its theory owner of brake, press Metal, Sheet had a duty update press postsale brake with this safety technol- ogy.

Therefore, I would reverse the decision Appeals Court of and reinstate the against verdicts both Cincinnati Incorporated and Addy-Morand.

Mallett, J., Cavanagh, concurred with Levin, J. (dissenting part). agree I with the that, majority on the facts of this the trial court in permitting erred Greg- Michael ory present theory of recovery against defen- majority proof negli admits that "there was some offered of gent design Riley, J., ante at 29. At oral argument, as of 1964.” defense counsel also admitted that there was sufficient evidence that press importantly, jury brake was defective in 1964. More also press determined that brake was actionable as of as evi Addy-Morand implied denced ranty its verdict breached an war reasonably brake was fit for its intended uses at Addy-Morand’s the time it left control—in 1964. 53 v Cincinnati by Levin, J.

dant Incorporated postsale based on a obligation to the allegedly product. recall defective would, however, I against affirm the verdict seller, defendant Addy-Morand Com- Machinery I also pany. separately write clarify analysis for when such determining obligations might arise.

i The majority correctly imposing post- notes that obligations sale is product where a is unnecessary product defective at the time of sale. If a is defec- tive at the time sale—whether through faulty negligent manufacture design—the manufac- turer is liable for all harm proximately by caused the defect.1 finding No additional of a breached is impose needed to liability. follow, however,

It does not there can never postsale obligation be a product. recall In cases, some a manufacturer have an may obliga- tion to protect against dangers posed products by that were not defective originally when sold. A product may prove to be unreasonably dangerous having designed.2 without negligently Newly been developed are an drugs example. The manufac- turer may have used all care in design- reasonable ing drug. dangerous unreasonably Yet effects of the drug apparent become once may drug market. See Beshada v Johns-Manville Corp, 196-197; Products 90 NJ 447 A2d 539 1 Sons, 79, 89; Squibb Smith v E R & 405 273 Mich NW2d 476 (1979); (1984). Co, 670, 695; Mfg Prentis v Yale Mich 365 NW2d 176 postsale obligation unlikely There is to be a need for a in connec cases, manufacturing with tion caused the dards. defects. In such the harm is not Rather, danger an risk. unforeseeable arises because production from the manufacturer’s own stan deviates Prentis, p supra, 683. n 1 Mich Opinion by Levin, (1982), noting dangers asbestos were unknown decades.3

In such a a manufacturer who learns or should product-related learn of an unreasonable danger obligation has an to take reasonable steps prevent to the product causing from harm. De- scribing obligation relating as to a "product defect” confuses matters. Michigan prod- defines a in uct defect terms of the manufacturer’s knowl- choices at the time of manufac- edge ture and sale product.4 Recognizing a post- obligation sale only meaning product has when the is not initially defective.

Any postsale obligation should be viewed as arising out of general to duty exercise reason- able care for the safety of others. As one commen- explained: tator duty The manufacturer’s of due care extends

beyond product. the sale of a . . . The extent of duty depends many . . circumstances . dictating the person.[5] conduct of a reasonable proposition This represents great no in change tort law: 3 distinguished Such a situation should be from a case in which new technological should reasonably unknown original design advances render an obsolete. This Court recognize postsale obligation regard dangers a with to distinguished foreseeable at the time of sale as from safeguards dangers. to avoid known majority properly require The notes that this case does not that the postsale obligations involving Court after "dangers consider discovered product Ante, 17, p enters the market.” n 18. 4Prentis, supra, p supra, n 691. As mentioned in n 2 this would .1 manufacturing not include defects. 5 Lindahl, (rev ed), Liability Litigation Lee & Modem Tort Law & 27.17, p Operating 564. See Corp, § also Johnson v Colt Industries 776, (D Supp Kan, 1985), grounds F (CA 1986) aff’d on other 797 F2d 1530 10, ("[wjhether duty any a manufacturer has a recall

given incorporated concept case is applies into the of due care as it negligence generally”); Welding actions Jones v Bender & Machine Works, (CA 1978) 9, (imposing postsale 581 F2d obliga a fashion”). tion "to act a reasonable v Levin, [W]hy should to behave a manufacturer’s (and

reasonably negligently) thus not a toward product consumer end at the moment the is sold? traditionally impose Courts a on individuals remedy they recall hazards create. merely to be a extension of the seems reasonable products field liability. doctrine into the Once a hazard, it must take manufacturer has created a it.[6] precautions remedy all reasonable also [See Torts, 2d, 321, p 2 Restatement § 132.][7] danger Where an unreasonable sale, unknown and unknowable time of danger manufacturer later who learns an obligation under to exercise reasonable care to cases, protect against that harm.8 many In others, obligation warnings. will In require meet- ing the of require standard reasonable care may occur, might recall. This example, where there great danger, is a of risk or where the can readily be made safe.9_ 6Lamken, prevention continuing obligation: Efficient accident as a (1989). products, 103, The to recall defective 42 Stan L R 106 argument, summary

This statement was made as a of an not as a position. agreed statement the author’s The author that there is an obligation Id., p to recall in certain contexts. 153. 7 Restatement, provides “subsequently The an 321 actor who § realizes or should realize has created [his an unreasonable act] causing physical risk of harm to ... a another is under to prevent taking exercise reasonable care to the risk from effect.” This applies prior negligent. if the even act was not 8Id.; Airways, Curtiss-Wright Corp, Braniff Inc v 411 F2d 453 (CA 2, 1969), ruling threatening that when defects "human safety” product, to the come attention the manufacturer after the sale of a or, remedy "the has a to manufacturer either these if feasible, complete remedy give adequate is to not least users warnings concerning minimizing and instructions methods for danger.” 9 majority recognizes imposed postsale The that courts have duties Ante, pp repair modify (duty to recall where product owner under recall such circumstances. 24-25 severe), id., danger (obligation p is 25 identity product’s where manufacturer knows the postsale relationship). of a because 450 Mich Levin,

II distinguish majority The should between a postsale obligation obligation to warn an Warnings repairs prop- or recall. are erly obligations simply viewed not as different but points post-sale different precautions "a on continuum of simply warning

. . A . .”10 recall is buyers accompanied by an offer to bear the cost making, changes prod- needed in the defective uct. by recognizing This becomes clearer "duty something

term is warn” of a misnomer. Strictly speaking, negligence action, in a man- "duty” "produce ufacturer’s to a customer is to and market with articles reasonable under care meeting cases, In circumstances.”11 certain requires warnings. that standard of care But in may require others, the standard of care more simply notifying buyers than risk: of a "warning” provides While a convenient charac post-sale obliga terization the manufacturer’s tions, the responsibility range manufacturer’s may providing device, buyer from with a corrective simple sending Madden, to the ucts of a letter. Prod [1 (2d Liability ed), 10.13, p 456.][12] § turers warn of defects because the customer would fail to danger. "Latency” properly sive. it involved a latent manufacturer "knew or should have case, apparent added.) Latency, General Motors This 12 majority’s 10Lamken, The Lee & majority distinguishes argument misapprehends be defined to the user . . . .” Lindahl, n 6 Corp, supra, p describes effort to limit this Court’s decision in n 5 purposes 358 Mich terms of the seller’s supra, defect. 105. “a Madden, Comstock of an § potential 163; 27.12, It defines a latent defect as a flaw the obligation known of meaning p supra, NW2d 556. for knowledge. the basis injury § ” to warn 10.1, “latency.” (1959), unpersua the time of sale. that is not p that, 357. buyers, know Comstock unlike this (Emphasis Manufac- readily cannot of the v Gregory v Cincinnati by Levin,

hi case, the facts permit On of this it was error to pursue postsale based on a theory obligation danger posed or recall. The by press brake was well known in it when was manufactured. It had been widely recognized for decades. This was not a case of an unreason- danger able that was unknown unknowable in 1964. If Cincinnati is liable to Gregory, such liabil- ity predicated should be on a product defect exist- ing in 1964. I agree with the majority that instructional error and the error in the admission of evidence requires was not harmless and against verdict Cincinnati be reversed.

IV would, however, I against affirm the verdict seller, Addy-Morand Machinery Company. The er- regard rors with to the introduction of evidence and jury instructions concerning manufac- turer, Cincinnati Incorporated, did not taint seller, verdict against Addy-Morand. In con- trast to the regarding instructions de- against Cincinnati, fect claim the instructions the breach of warranty against claim Addy- Morand unambiguously required the to con- jury sider the condition brake at the time Addy-Morand’s left control: "implied I warranty” When use the words as to Company,

Addie Moran I mean a im- [sic] principle described Comstock should not be limited to latent defects. Comstock ruled that the manufacturer’s care continued after the sale of a of reasonable product. On the facts of that cases, required postsale warnings. care” "reasonable "reasonable care” But in other may steps. involve different or additional 450 Mich [Aug. Opinion by Levin, J. posed by requires prod- law which seller’s the reasonably purposes uct be fit the and uses by reasonably intended or We foreseeable seller. will proof talk about the burden of as to this implied warranty. claim of of breach proof The the burden of each of [has] following Company: toas Addie Moran Second, reasonably that the brake purposes fit for ably anticipated the uses or reason- by Machinery foreseeable Addie Moran Com- pany at it the time left Addie Moran’s control. Moreover, regarding continuing instructions manufacturer, applied specifically Cin- cinnati, only: A manufacturer has a further to [k]eep developments abreast of be informed safety, field design

the reasonably technology of its and manufacture and to incorporate new in safety advances design into and manufacturer [sic] product. obligation part There is no on the provide the manufacturer every possible new might possibly, device which have been conceived or invented. Further, a manufacturer who learns of a defect after the has been sold has a duty to take reasonable actions correct the defect. It you is for to determine what constitutes reason- [Emphasis able actions. added.] The majority nevertheless reverses the verdict against Addy-Morand and remands for a trial new on this count. The majority states because Gregory allege did not Addy-Morand breached implied warranty independently actions Cincinnati, any against error in the verdict manufacturer against infected the verdict Addy- Morand. I agree. do not v Cincinnati Levin, against verdict Addy-Morand did not neces- derive

sarily from the verdict against Cincinnati. notes, As the majority "there was some proof offered of negligent design as of 1964.”13 Defense counsel conceded at argument oral that Gregory presented evidence that the press brake was defec- tive in year was manufactured. Nei- ther challenged defendant has sufficiency this evidence. evidence,

It was this and not the against verdict Cincinnati, that supported a verdict against Addy- sure, Morand.14 To be "there was no other evidence of negligence or breach of warranty as far as Addy-Morand is concerned . . . .”15But that is not relevant because there was evidence that prod- uct was defective or not reasonably fit at the time it was manufactured.

My view of this case does not rest on the as- sumption that juries comprehend and remember every nuance of the instructions. The instructions are the background against which the parties present their summation of the evidence. A party relying on particular instruction may emphasize that instruction or ask the jury to pay particular attention to it. In this confusion between the breach of warranty against claim Addy-Morand and the instructions that Cincinnati had a contin- uing obligation could have been avoided by empha- sizing the differences between the claims. The neglected defendants to make the distinction as a 13Ante, p 29. products liability, [U]nder common law of in an action against upon alleged manufacturer of a based an design, implied defect in its gence warranty negli "breach of require proof involve exactly identical evidence and [Prentis, 692, supra, p Smith, the same n 1 quoting elements.” n 1 supra, p 88.] (1993). App 486; 202 Mich 509 NW2d 809 450 Mich 1 Levin,

matter of trial strategy, and it therefore cannot form the basis for a claim of error.16

Nor I would infer from the proper verdict against Addy-Morand that any instructional error respecting the against claim Cincinnati was harm- less. A different conclusion might be appropriate if the jury’s against verdict Addy-Morand followed a argument defense the jury could find in favor of Addy-Morand even if it found against Cincin- nati on the continuing duty theory, which event the verdict would necessarily reflect a determina- tion brake was defective at the time it was manufactured. present record, On the how- ever, it cannot be concluded with requisite degree of certainty that jury would have ren- dered the same verdict had it been in- properly structed on the claim against Cincinnati.

Accordingly, agree while I with the majority against verdict should be re- versed, I would reinstate the against verdict Addy- Morand._____ Addy-Morand 16 I also note that separate did not ask for a trial or

jury-

Case Details

Case Name: Gregory v. Cincinnati Inc.

Court Name: Michigan Supreme Court

Date Published: Aug 15, 1995

Citation: 538 N.W.2d 325

Docket Number: 98284, (Calendar No. 8)

Court Abbreviation: Mich.