PARSONSON v. CONSTRUCTION EQUIPMENT COMPANY
No. 52,572
Supreme Court of Michigan
November 9, 1971
386 Mich 61 | 191 N.W.2d 465
Submitted May 6, 1971. (No. 25 April Term 1971). 18 Mich App 87 affirmed.
OPINION OF THE COURT
1. PRODUCTS LIABILITY-SELLER-MANUFACTURER-WARRANTY-NEGLIGENCE-GASOLINE-LATENT DEFECT-PATENT DANGER.
Evidentiary facts disclosed defeated recovery as a matter of law where defendants, a seller and a manufacturer, were guilty of no breach of warranty or actionable negligence as charged and there was no latent or concealed defect of design in an asphalt manufacturing plant as the danger of fire or explosion by the careless use of gasoline was visible and patent rather than concealed or latent where a plaintiff was injured when he removed a cap from a gasoline tank on a running engine, which was a part of the plant, and a shower of gasoline and gasoline vapors emerged which then ignited.
2. NEGLIGENCE-GASOLINE-ENGINES.
Every adult person having a reasonable measure of intelligence knows better than to open a partly-filled gasoline tank for checking or filling when there is some or any nearby source of ignition and assuredly this is true when the opening is within inches of an already heated and continuously-running gasoline engine.
3. AUTOMOBILES-GASOLINE-FLAMMABLE LIQUIDS REGULATIONS.
Filling or pouring gasoline into the gas tank of a motor vehicle when its motor is running has been outlawed (1955 AACS, R 28.702).
REFERENCES FOR POINTS IN HEADNOTES
[1] 46 Am Jur, Sales § 799 et seq.
[2] 57 Am Jur, Negligence § 288 et seq.
[3] 57 Am Jur, Negligence § 293.
[4] 46 Am Jur, Sales § 804.
[5, 6, 8] 30 Am Jur 2d, Evidence § 1081.
[6-8] 30 Am Jur 2d, Evidence § 1081.
57 Am Jur 2d, Negligence § 139 et seq.
[7] 57 Am Jur 2d, Negligence § 139 et seq.
[9] 57 Am Jur 2d, Negligence § 428.
Manufacturers do not have to design their products so as to warrant freedom from injury or damage to and for the foolhardy, the careless, or the habitual chance-taker, when the dangers of improper use of such products are well known to all users thereof.
5. WORDS AND PHRASES-CONJECTURE-THEORY OF CAUSATION-INFERENCE.
A conjecture, as a theory of causation, is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference.
6. NEGLIGENCE-PROXIMATE CAUSE-CONJECTURE.
There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only.
7. NEGLIGENCE-PROXIMATE CAUSE-THEORY OF CAUSATION.
Evidence pointing to one theory of causation, indicating a logical sequence of cause and effect, presents a judicial basis for determining causation, notwithstanding the existence of other plausible theories with or without support in the evidence.
8. NEGLIGENCE-PRODUCTS LIABILITY-THEORY OF CAUSATION-CONJECTURE.
A submissible case of causation was not made out in a product liability case charging that the manufacturer‘s design created a concealed or hidden danger where the plaintiffs’ burden-bearing theory of causation was comparatively improbable and no more than possible and thus was a conjecture only.
OPINION IN AFFIRMANCE
BLACK and ADAMS, JJ.
9. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-COMPARATIVE NEGLIGENCE-LEGISLATURE-COURTS.
The legislature is the body best equipped to adopt a change in the rule of contributory negligence to that of pure comparative negligence rather than the Michigan Supreme Court substituting some judicially selected form of comparative negligence.
18 Mich App 87 affirmed.
Complaint by Robert Parsonson and Grace Parsonson against Construction Equipment Company, a partnership, its individual partners, and White Manufacturing Company for damages for personal injuries resulting from breach of an implied warranty and negligence. Verdict and judgment of no cause of action. Plaintiffs appealed to the Court of Appeals. Affirmed. Plaintiffs appeal. Affirmed.
Charfoos & Charfoos, for plaintiffs.
Kelly & Tatham, for defendant Construction Equipment Company.
Amici Curiae:
Association of Defense Trial Counsel (by Hector Webber).
Michigan Trial Lawyers Association (by Maurice Kelman).
Negligence Law Section, State Bar of Michigan, in opposition to comparative negligence (Cholette, Perkins & Buchanan [by Edward D. Wells and Kenneth L. Block]).
Negligence Law Section, State Bar of Michigan, in support of comparative negligence (by Friedrich K. Juenger).
PER CURIAM. Prominent in the juristic area of product liability are those rules by which the courts
We are concerned in this case with (a) above. Under it liability or nonliability is properly determined by careful application to the ascertained facts of what is compendiously termed the “latent-patent” test. For recent analysis and application of that test, supported by copious references to impressive judicial authority, examine Blankenship v. Morrison Machine Co. (1969), 255 Md 241 (257 A2d 430), and Neusus v. Sponholtz (CA 7, 1966), 369 F2d 259.
Blankenship quotes and follows Myers v. Montgomery Ward & Co., Inc. (1969), 253 Md 282 (252 A2d 855). The quotation of Myers reads (p 293):
“The manufacturer of a mower is not an insurer, and is under no duty to make an accident proof product * * *. No cause of action is made out in the absence of an allegation that the injury was caused by a latent defect not known to the plaintiff or a danger not obvious to him, which was attendant on proper use * * *. ‘There is certainly no usual duty to warn the buyer that a knife or axe will cut, a match will take fire, dynamite will explode, or a hammer will mash a finger,’ * * *.”
“It is a truism to observe that no mechanical device can be made accident-proof. If it is misused it may cause injury, regardless of the method of manufacture. As stated by the New York Court of Appeals in Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, 804 (1950) [quoted with approval in Murphy v. Cory Pump & Supply Co., 47 Ill.App.2d 382, 197 N.E.2d 849, 857 (1964)]:
” ‘We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof. Just as the manufacturer is under no obligation, in order to guard against injury resulting from deterioration, to furnish a machine that will not wear out * * *, so he is under no duty to guard against injury from a patent peril or from a source manifestly dangerous. * * *
” ‘In other words, the manufacturer is under no duty to render a machine or other article “more” safe—as long as the danger to be avoided is obvious and patent to all.’ ”
First: WAS THE DEFECT CLAIMED LATENT OR PATENT?
Typical of some appeals previously submitted to this Court, and recently more and more so, this record and the briefs received disclose that counsel both at trial and on appeal have concentrated too much upon abstractive theories and selected legal writings and too little upon “the facts which generate the law“.1 This has necessitated a doubly
In early 1960 one Heath of Port Huron, doing business as Heath Excavating Co., was doing small jobs of asphalt paving in conjunction with his excavating business. For that purpose he had acquired and was using “a smaller White asphalt plant“. At that time he communicated to defendant White Manufacturing Co., of Elkhart, Indiana (hereafter termed “White“) his interest in acquiring “a larger capacity plant“.
Defendant Construction Equipment Co., of Detroit (hereafter termed “Construction“), was in business as buyer, seller and lessor of heavy construction and industrial machinery and equipment, “new and used“. Alerted by White to Heath as a prospect, Construction‘s sales representative Higgins called on Heath and informed him that White then had, “on the drawing board“, a bigger and yet fully transportable asphalt manufacturing machine known as an “L-501 asphalt plant“. The two, Heath and Higgins, finally went to Elkhart to view the L-501 plans. Design changes of the proposed new model were then being made from time to time by White. White agreed to build an L-501 specially for Heath, to be sold to Construction and by Construction to Heath (for financial reasons).
Heath insisted that the plant not only must be capable of greater output but also must be thoroughly mobile so that he would be “able to move
to us before the ruling was declared.” (“Selected Writings of Benjamin Nathan Cardozo“, p 373; published 1947 by Fallon Law Book Co., New York).
The agreed sale to Construction was completed and reduced to writing by Construction‘s purchase order dated March 23, 1960. Addressed to White, it described the purchase as a “Model 501 B Asphalt Plant with Dust Collector System“. It specified a sale price of $33,400 (“Less 15% Disc.“), “Customer Pickup” as to shipment, and a delivery date of May 15, 1960. These provisions were included:
“Price subject to additions per customer‘s specifications.
“This purchase order subject to final approval of specifications by customer.”
A year and a half later the plant was “repossessed” by Construction. “Partly dismantled“, the plant and its parts were transported by Construction from Port Huron to its yard on West Eight Mile Road. There the plant remained unused until it was sold by Construction to a corporation formed in February of 1963. The shareholders of the buying corporation consisted of plaintiff Robert Parsonson, his brother Alfred Parsonson, Andy Hornak, George Hornak, and Robert Huhn. The corporation was named H. & L. Paving, Inc.
The parties agree that H. & L. Paving bought the plant “as is, where is” from Construction. The sale was made April 16, 1963. Construction towed the chassis to H. & L. Paving‘s yard on Schultes Street. H. & L. Paving trucked the separate parts to the Schultes Street yard. There H. & L. Paving put the plant together, the process taking some two weeks. After that was done H. & L. Paving evidently sent for Mr. White, president of defendant White,3 for he came to the Schultes Street yard for operational advices. The extent of those advices was given by Alfred Parsonson:
“Q. After it was erected, were you present when Mr. White came upon the premises?
“A. Yes.
“Q. Would you tell us what you did, if anything, with Mr. White on that day?
“A. I don‘t recall how many of us there were but we followed Mr. White around as he explained the operation of the plant to us. I clearly recall him showing us how to set the burner, how to adjust the air on it. I can remember him showing us how to operate the pug mill, and I can remember him correcting a fault we made in the hookup of the asphalt and I can remember him suggesting that we get a smaller motor to heat the asphalt pump. Oh, yes, and he told me to make sure—
“Q. Don‘t tell us what he told you, just what he did.
“A. That I grease the thing every day.
* * *
“Q. Did you have to follow any particular procedure to close the plant down?
“A. Yes. We had set up a procedure for ourselves. First of all, we would shut the gates on the storage bin, allow all the aggregate to work its way out, then turn off the burner. This then would stop the flow of the aggregate. The aggregate would have gone up to here. We then could turn this off, turn this dryer off, the blower off. We could go over, drain the asphalt circuit, which if we left the asphalt in there it would harden, then we would come back and turn this one off.
“Q. Why did you wait for the last one for the Continental motor?
“A. The reason we would leave this to last, Mr. White had recommended we do this to make sure we would get no warpage in the dryer barrel.
“Q. What do you mean by that?
“A. Well, he said that if we didn‘t, if we stopped it—I don‘t know really, I don‘t know.
“Q. Tell us what he said.
“A. All he told us is to make sure we allowed this to run a few minutes after the heat was off so we wouldn‘t get warpage in the dryer. How this would come about, I don‘t know.
“Q. So, in other words, when you say run, this dryer turns?
“A. Right.
“Q. And you had to leave the motor on to keep it turning?
“A. That is correct.
“Q. Did you know any of this before you got this plant?
“A. No, I didn‘t.
“Q. Did you know anything about asphalt plants before you got this plant?
“A. No, I didn‘t.
“Q. Who showed you or taught you how to operate this plant?
“A. Mr. White was my greatest source of information.
“Q. When he came.
“A. To visit us, yes.”
H. & L. Paving started job-production with the plant in May of 1963. June 1, H. & L. Paving broke up by agreement. The result was transfer of ownership of the plant to the Parsonson brothers and Mr. Huhn, as copartners d/b/a Capital Asphalt. The three continued steady use of the plant for production of asphalt from June 1 to October 23, 1963, when plaintiff Robert Parsonson‘s presently-viewed accident was suffered.
Mr. Huhn took no part in the operation of the plant. The operational practice of the brother partners was that Alfred Parsonson manipulated the controls at the position thereof, with plaintiff Robert Parsonson maintaining the books of the partnership and, pertinent here during each operational day, keeping the gas tanks of all five gasoline engines of the plant checked and filled as needed with gasoline.
This case concerns one only of the five gasoline engines with which the plant was equipped. Exhibit
This brings up need for a specific description of the six-cylinder gasoline engine assembly shown in the central foreground of exhibits 1 and 2. It was established that some 500,000 of the pictured model had been manufactured by Continental Motors Corporation as power for stationary machinery, “off the road equipment, not highway equipment“, and that many had been supplied to the military establishment. The unit included a standard water-cooled radiator and a cooling fan immediately behind the radiator; the radiator being vertically even with the forward end of the chassis. The gasoline tank formed the top of the unit. The engine drove directly the straightaway power shaft which extends aft from its rear.
Manufacturer Continental provided a “vent hole” in the side of the filler neck of the tank, rather than an auto-type vented cap. One of its designing engineers testified without dispute that “it was deliberately designed that way so that we could use the same cap for both the radiator and for the gasoline tank“. He went on to testify that if one should use a vented cap for the gasoline tank the neck-vent of
October 23, 1963, was a typical day of full production for Capital Asphalt. Alfred Parsonson was operating the plant at his position. Plaintiff Robert Parsonson was tending to the gas tanks. It was standard practice of the brothers to check and fill the gasoline tank of the engine portrayed by exhibit 2, without first having stopped the heater-blower or having stopped the engine. The explanation given for such practice was that it would take too long to shut off and reheat, with “trucks arriving for loads“, to which this was added:
“Q. Couldn‘t you just turn it off for a second when you filled this gas engine?
“A. No, sir.
“Q. Why not?
“A. Because you have to have this aggregate drying at a temperature of up to 325 degrees Fahrenheit, and if you turn this off, well, then, you are not getting your heat into your aggregate.
“Q. How would that affect your over-all operation?
“A. Well, it would affect it. It would turn out a bad product.
“Q. As a matter of fact, did it occur to you to turn that burner off each time you checked that gas tank?
“A. No, sir.”
Operating the plant in such manner, the two brothers had experienced no trouble with it throughout the operational period June 1 through October 23; “nothing unusual” until October 23. Plaintiff Robert Parsonson checked the amount of gasoline in each engine‘s gas tank some six to eight times per
About three in the afternoon of October 23 plaintiff Robert Parsonson checked the level of the belt-driving engine which appears in the lower left foreground of exhibit 1.4 Then he walked around the tongue and jumped up on the platform of the chassis, preparatory to checking the level of the gasoline in the tank of the engine in question. The metal sides of the motor assembly had been removed, thereby exposing the heated engine and its dangers of ignition to the shower of gasoline and vapors of gasoline that ensued. The blower and engine were running steadily, as they had been for hours.
Plaintiff Robert Parsonson stood behind the engine, near the middle of the chassis and facing its right side (as if facing the camera in exhibit 2, from behind the engine), with his back to the ladder-stairway shown by both of the exhibits. Having picked up the measuring stick, he started to and did remove the gas tank cap. As he did so built-up pressure inside the tank blew, upward, a shower of gasoline as well as gasoline vapors. The pressure was such that
The temperature that day stood at about 80 degrees. The wind was blowing across the chassis from its left side to its right side, rather than from fore to aft as plaintiffs’ expert had been mistakenly informed. The immediate or efficient cause of the accident had to be, as the experts all agreed, a “clogged” vent of the gasoline tank. There was no other reason for the built-up pressure inside the tank, it having been pointed out in various ways that a tightly closed gasoline tank, partly filled with gasoline, will so heat up in hot sun as to raise considerable pressure inside.
The evidentiary facts disclosed here defeat recovery as a matter of law. The jury found the defendants guilty of no breach of warranty or actionable negligence as charged.6 We in turn, exercising our function, find the defendants would have been entitled to judgment, on defendants’ motion as made, had the jury not found in their favor.
“Operation of dispensing equipment.
* * *
“(b) The fuel tank of motor vehicles shall not be filled until the vehicle‘s motor has been shut off.”7
Here the brothers Parsonson practiced a daily risk; that of regular checking and filling of a gasoline tank immediately above an hour after hour laboring engine with its hot parts as well as its spark plugs exposed, all being causally suited for disaster whenever, with or without pressure inside the tank, gasoline might be spilled while one was in the act of filling the tank.
Second: WAS A SUBMISSIBLE CASE OF CAUSATION MADE OUT, AS CHARGED?
In Kaminski v. Grand Trunk W. R. Co. (1956), 347 Mich 417, 422, this Court adopted the following test-definition of what is causally conjectural and what is not for cases as at bar:
” ‘As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be 2 or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any 1 of them, they remain conjectures only. On the other hand, if there is evidence which points to any 1 theory of causation, indicating a logical sequence of cause and effect, then there is
a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.’ ”
Plaintiffs’ theory of causation is that ignition came from the fully-operating heater-blower. Defendants’ theory is that ignition came from some other source, suggested as being a live cigarette in plaintiff Robert Parsonson‘s mouth or hand, a spark from the muffler or other heated part of the engine or from the engine proper, notably from its exposed spark plugs.
Applying Kaminski‘s test to these conflicting theories of causation, and keeping in mind that plaintiffs bear the burden of proof, not only of defective design but of proximate causation attributable to such alleged defective design, we perceive no contest.
The day was unusually hot. So must have been the continuously-driven engine, the brothers having taken off the removable sides for additional cooling with resultant exposure of all of its potential sources of ignition. An 8-1/2 to 10 mile wind was blowing from behind plaintiff Robert Parsonson as he stood on the platform of the plant, with his back toward the upgoing ladder-stairs. In view of his height and the much lower level of the top of the engine‘s gas tank, his body must have been partly bent over the tank, thereby shielding to some extent the heater-blower from the ultimately-spewing gasoline and directing it more over the running engine. The engine as a potential source of ignition was much nearer to the pressured release of gasoline than was any part of the heater-blower. There was no proof of fire damage to or around the forward end of the heater-blower, or scorching of any of its parts.
No one of plaintiffs’ witnesses, experts and all, bothered during their investigation of the plant to
The most likely inference is that ignition came when the vapors and droplets of gasoline descended around the heated and running engine as, meanwhile, some of those vapors were sucked into and over the heated engine by its cooling fan. Adding all this proof of facts, the best that may be said for plaintiffs’ theory of causation, according it the most favorable construction such proof will permit, is that that theory remains without selective application of the heater-blower as a source of ignition over the more probable and much nearer source, that is, the steadily-running engine immediately below the opening from whence came the gasoline that burned the
As noted by Division 2 (Parsonson v. Construction Equipment Company [1969], 18 Mich App 87, 88, 89), plaintiffs have raised a number of additional questions for review. All however proceed on assumption that errors were committed during the trial of a submissible case, warranting a new trial. In view of the foregoing, however, there is no need for treatment of any of those questions.
Affirmed. In view of the nature of the case and our primary reason for grant of review, namely, consideration of the comparative negligence proposal, no costs will be awarded.
T. M. KAVANAGH, C. J., and BLACK, ADAMS, T. E. BRENNAN, T. G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred.
BLACK, J. (concurring in affirmance). As noted by Division 2 (Parsonson v. Construction Equipment Company [1969], 18 Mich App 87, 88, 89), plaintiffs have raised a number of additional questions for review. All however proceed on assumption that errors were committed during the trial of a submissible case, warranting a new trial. In view of the foregoing, however, there is no need for treatment of any of those questions beyond brief reference to the thoroughly briefed proposal that this
The most prominent reason assigned for this latest proposal of judicial legislation was presented brilliantly during oral argument of plaintiffs’ appeal. It was that contributory negligence is most unfair to plaintiffs in negligence in that it authorizes jury argument and jury instruction that, if any contributory negligence, “however slight“, be found, the verdict must be against the slightly negligent plaintiff regardless of the extent or nature of the defendant‘s causal negligence.
I could agree with the stated “however slight” criticism if it were not for Clark v. Grand Trunk W. R. Co. (1962), 367 Mich 396, 402, and Mack v. Precast Industries, Inc. (1963), 369 Mich 439, 448-454.2 But the point is now academic in view of Mack. It is not likely that this Court will undertake to reverse Mack‘s holding that these “however slight” jury arguments and instructions are quite out of order.
As for the motion for legislation proper, I agree with the conclusion reached by the Supreme Court of Wisconsin in the Vincent case (p 130):
“Without passing judgment upon the merits of pure comparative negligence as opposed to comparative negligence as it is presently applied in this jurisdiction, we think that the legislature is the body best
ADAMS, J., concurred with BLACK, J.
Notes
“The Clerk: Would the foreman please rise?
“Members of the jury, have you agreed upon a verdict? If so, let your foreman speak.
“Juror No. 1: Yes, we have.
“The Clerk: What is that verdict?
“Juror No. 1: Well, we have found in favor of the defendants, on both defendants on both conditions, that is, the breach of implied warranty and negligence, also.”