Prentis v. Yale Manufacturing Co.

Mich 670 COMPANY v YALE MANUFACTURING PRENTIS 3). (Calendar 6, Argued March No. 69581. Docket No. Decided 28, 1984. February 1985. Released December brought products liability Helen Prentis John Prentis and against Manufacturing Wayne Circuit Court Yale action in the seeking damages injuries Company, for received John Pren- involving accident a forklift manufactured Yale. tis in an warn, alleged negligence, plaintiffs failure to and breach of warranty alleged based on an defect in the court, Olzark, J., forklift. The Roland L. refused to instruct warranty, properly jury on breach of but instructed on the theory negligent design, judgment and entered for defen- jury dant verdict of no cause of action. The Court of Maher, P.J., Marutiak, JJ., Appeals, Beasley R. M. reversed, holding give requested that the refusal to instruc- warranty requiring tion on breach of was error reversal (Docket 50381). appeals. No. The defendant opinion by Boyle, joined by In an Justice Chief Justice Ryan Brickley, Supreme Williams and Justices Court held: products liability against In a action for an manufacturer alleged product, only of its need be single theory negligent design. instructed on a case, unified In this properly negli- theory instructed on gent design, and the trial court’s refusal to instruct on breach requiring was not error reversal. plaintiff seeking damages injuries arising 1. A out of the prove use of a defective must a defeсt attributable to the manufacturer and a causal connection between that defect injury. Only may recovery and the then be had accepted policy manufacturer. While courts have the social injured by products rationale that those defective should be injuries being subject for their without to the References for Points in Headnotes 2d, Liability seq. Am Jur [1-4] Products 375 et §§ liability: determining Products modern cases whether defectively designed. 96 ALR3d 22. [3, 2d, Liability 63 Am Jur 4] Products § Prentis v .671 sales, agreed contractual intricacies of the law of and have effectively inju- manufacturers can most distribute the costs of ries, they gone have never so far as to make manufacturers absolutely any insurers of their and thus liable for injuries products. and all sustained from the use of those In Michigan, plaintiff brings upon negli- a who an action based gence implied warranty required prove is to that the defective, i.e., something wrong itself is that is with it that dangerous. defect, manufacturing makes it In the case of a the product may against be evaluated the manufacturer’s own production standards, as manifested that manufacturer’s products. design cases, other like In defect the court is called upon supply Thus, to the standard for defectiveness. the term design epithet expression legal "defect” in cases is an for a —an reaching conclusion rather than a test for that conclusion. meaning design Determination of the of "defect” in cases requires test, i.e., risk-utility balancing a whether the risk of outweighed utility particular design. harm the The issue is properly weighed whether the manufacturer the alternatives and thereby developed evaluated the trade-offs and a reason- ably product; unmistakably safe quality focus is on the the decision and whether socially the decision conforms to acceptable standards. The of the manufacturer rests departure care, proper a standards of so that the essentially negligence. tort competing a matter of factors weighed risk-utility balancing to be under a test invite the trier of fact to consider the alternatives and risks faced light manufacturer and to determine in whether of these the making manufacturer design exercised reasonable care Instructing choices it weighing made. a factors con- cerning judgment yield conduct and must a conclusion that does not confusing describe conduct is at best. pure negligence, 3. A risk-utility products liability test in actions alleged design manufacturers for defects defines in a litigants coherent fashion what in cases such as this case argue jurors and what analyze. are asked to Unlike manufac- turing defects, design defects result from deliberate and docu- mentable part manufacturers, decisions plaintiffs on the and should be able surrounding to learn the facts these decisions through discovery liberalized expert modern rules. Access to witnesses and plaintiffs technical data are available to aid proving the manufacturer’s decision was ill considered. A standard that rewards the careful manufacturer penalize and likely primary careless is more to achieve a purpose products law, encourage to 421 Mich 670 thereby injuries. the incidence of reduce safer plaintiff case is the verdict for the a Because a equivalent that an entire line is determination defective, pass plaintiff required higher should be negli- to establish fault. The traditional tort law of threshold purpose. incorporates gence system serves this The fault better safety-oriented greater in that the careful intrinsic fairness paying will not bear the burden of for losses manufacturer negligent product It seller. will also follow that caused through prices customers of a careful manufacturer will not pay negligence of the for the careless. case, 4. In this the refusal of the trial court to instruct on warranty requiring not error breach reversal. Such juror prejudicial instructions could have created confusion and error, repetitive unnecessary, would have been and could believing plaintiff have misled the into could if recover count even it found there was no product. suggest defect in the This is not implied warranty separate are not and distinct recovery products liability theories of or that the statute has merged products liability all former theories or causes of action single products liability theory dispute into a unified or to generally recognized negli- distinction between elements of gence warranty. Negligence theory generally and breach of conduct, requiring showing focuses on the defendant’s a that it unreasonable, warranty generally upon was while focuses the product, irrespective fitness of the of the defendant’s conduct. holding upon recognition in this case is based the products liability, under the common law of in- an action against product alleged the manufacturer of a based an design, implied warranty negligence breach of require proof exactly involve identical evidence and the same Although plaintiffs alleged elements. injuries their were proximately by caused defendant’s and breach of an implied warranty, proofs their evidence and at trial focused on single the defectively designed claim that the defendant the failing provide platform forklift in operator. a seat or for the Recovery theory required under jury either the to determine that the defectively designed by forklift was defendant. The test determining design unreasonably danger- whether the was alleged ous was whether design product the defect in the of the created an injury. unreasonable risk of foreseeable The trial properly recognized court that the standards of under the theories of were indistin- guishable only and that instructions on both would the confuse jury. Accordingly, judge’s regarding the trial instruction the Prentis liability properly standard of care and theories of the informed jury legal of defendant’s duties as the manufacturer of the essence, jury In forklift. the was instructed to consider whether light any the manufacturer took reasonable care in reason- ably might foreseeable use of the which cause harm or injury. Cavanagh only. concurred in Justice the result Reversed. Levin, joined by Kavanagh, dissenting, Justice Justice stated products liability require jury that the statute does not a determine whether manufacturer was at fault or to make a finding regarding jury the manufacturer’s conduct. The in this case should have been instructed to determine whether the designed reasonably purposes fit for the by designer-manu- uses intended foreseeable facturer, which, time, governed the standard until implied warranty determination of whether a breach of an occurred. (1982) App 466; 323 NW2d 444 reversed.

Opinion of the Court Liability Design Jury — — 1. Products Defective Instructions. products liability A in a action a manufacturer for alleged only an defect in the of its need be single theory negligent design; instructed on a unified manufacturer, weighing issue in such cases is whether the evaluating developing the alternatives and the trade-offs in product, departed proper standard care and selected injury that created an unreasonable risk of foreseeable (MCL seq.; seq.). 600.2945 et MSA 27A.2945et Liability Design Jury — — 2. Products Defective Instructions. meaning Determination of "defect” in involving product requires cases balancing design against of the risk of harm occasioned design’s utility; weighed the factors to be invite the trier of fact to consider the alternatives and risks faced the manu- facturer and to determine whether the manufacturer exercised (MCL choosing seq.; reasonable care in 600.2945 et seq.). MSA 27A.2945 et Liability Implied Design Warranty — — — 3. Products Defective Jury Instructions. by products liability against The refusal a trial court in a action manufacturer, seeking damages on thеories of defective de- sign product implied warranty, and breach of an 421 Mich Opinion of the Court warranty theory jury was not instruct breach requiring reversal where the instructions would have error design, repetitive of instructions on defective could been error, prejudicial jury confusion and and could have created believing jury recovery on the war- have misled the into ranty theory could have been had even if no defect found, recovery theory under was and where either defectively required a determination that was (MCL designed seq.; seq.). 600.2945 et MSA 27A.2945 et by Dissenting Opinion Levin, J. Liability Design Jury — —

4. Products Defective Instructions. products liability action a manufacturer for A alleged not an need deter- fínding the manufacturer was at fault or make a mine whether conduct; regarding should be in- the manufacturer’s designed structed to determine whether the reasonably purposes for and uses fít intended govern- designer-manufacturer, the standard foreseeable (MCL ing implied warranty whether a breach of an occurred 27A.2945-27A.2949). 600.2945-600.2949;MSA Jaques (by Admiralty Firm C. Law Leonard Jaques) plaintiffs. for the Perry, (by

Kerr, & C. Kenneth Russell Weber Corey) Jr., and Louis G. for the defendant. Amicus Curiae: Wright, Dickinson, Moon, & Freeman VanDusen Vartanian)

(by John E. S. Scott and G. Michael Michigan Defense Trial Counsel. products liability J. action arose out This Boyle, involving injuries sustained in an accident

оperation hand-operated of forklift manufactured procedural leading up defendant. The events appeal include two trials1 and two reversals Ap- and remands for new trials place The first took in 1980. second Manufacturing 1984] Prentis v op peals.2 wife, Helen, 3****Plaintiffs John Prentis and his brought alleging suit both and breach predicating warranty, of defendant manu liability upon alleged facturer’s defective de sign Although judge the forklift. the trial in warranty both cluded breach plaintiffs’ theory his statement of of the case to jury, give plaintiffs’ requested he refused to implied warranty.3 instructions breach of A judgment upon jury defendant, verdict of action, no cause was reversed the Court of Appeals, which held that trial court’s failure charge requested jury to as was reversible mandating Mfg error, Co, a new trial. Prentis v Yale App NW2d granted appeal We leave to following and limited our inquiry to the issue: whether the trial judge’s refusal instruct on breach of was reversible error in this liability alleged action a manufacturer for an product, where properly theory the negligent design. was instructed on the

I

Facts seriously The facts of this case are not in dis- The first reversal was based the trial court’s exclusion of a portion alleged design testimony plaintiffs’ expert of one of witnesses on the Appeals unpublished per defect. The Court of in an opinion testimony "integrally curiam related to concluded that the excluded was plaintiffs’ theory of the case.” The second reversal dealt granted with the issue on which leave was herein. (current requested 25.01, 25.02, 25.21, Plaintiffs SJI and 25.23 25.01, 25.02, 25.21, 25.22; replaced versions at SJI2d 25.22 after the 1980 SJI2d 25.23). promulgated adopted SJI SJI2d 25.32 was recently trial. SJI2d 25.22 and 25.32 were also amended to reflect the application comparative negligence products liability in all cases. 1984). (Oct, See Mich Bar J 975 421 Mich 670 Opinion op the Court plaintiff pute. April Prentis, who John In department parts employed foreman of the hip dealership, injury sustained at an automobile in an accident manufactured Company involving a forklift the use of by defendant Yale plaintiff’s employer in 1952. and sold stand-up walking type, The forklift was a model, defendant a "walkie hi-lo” termed rather operated by riding variety. down It was than a or sit lifting up, its handle much like wagon. by The forklift was estimated handle plaintiff weigh pounds and to about two thousand powered large battery, which had to be night. equipped recharged every The machine was with a hand controlled "dead-man” switch which normally

prevented moving operator it if the go let of the handle or controls. sixty-three years Prentis,

Mr. old at the the who was working accident, time of the had been at dealership years prior to his automobile for two oper- injury, occasionally he testified that had during period, although ated the forklift he opera- formally had never been tion aware of and had instructed as to its employer. his that he was He testified experienced problems previously hours, with the machine. After use for five or six charge battery run and the ma- would down operate erratically. battery chine would When play low, was dle back and forth to Mr. Prentis said he would the han-

get the machine to start and subject power when he did this the machine was surges person which he said could throw a off if balance care was not taken. He testified that prior accident, to his the machine had broken through garage dealership door of the five or power surges. six times due to such injured The accident which Mr. Prentis was day, occurred late in the and he testified that he Prentis op battery charge was aware at the time that the running using the forklift was low. After placing engine him machine the assist an inside cargo delivery van, area aof while the forklift slightly ramp inwas tow behind him on a inclined leading delivery bay, from the Mr. Prentis at- tempted by working to start the machine up experi- handle and down. When the mаchine power surge, footing enced a he lost his and fell to ground. appears plaintiffs injuries It were only, a result of the fall as the machine did not hit past him, run or stopped over but continued him and parked when ran into a car. Mr. Prentis multiple received extensive treatment of his left fractures hip. August alleging

Plaintiffs filed suit in negligence, warn, failure to and breach of warranty, gust upon proceeded and the case to trial in Au- Judgment

of 1976. of no cause of action based verdict favor of the defendant was September 17, 1976, entered on and was reversed Appeals unpublished opinion the Court of in an July dated 1978. The reversal was based finding the trial court abused its discretion prevented plaintiffs’ expert ‍​‌​​​​​‌‌​​‌‌‌​​​‌‌‌​​‌‌‌​‌​‌‌​​‌​‌‌‌​​‌​​‌‌‌​​‌‍when it factors from on human

expressing opinion his on the question, of the machine in he had because no experience type with that of machine. The court finding based its reversal a that the excluded testimony integrally plaintiffs’ was related to the- ory of the case which was a defect. Denial July of 19, 1979, leave this Court on resulted remand for a second trial which commenced on January 16, 1980. proofs

Plaintiffs’ in the 1978 cases testimony were identical and included the of both treating physician, wife, Mr. Prentis and his expert plaintiffs’ two trial, witnesses. In the 1980 421 Mich 670 testimony complеte into evidence the counsel read 1978 trial. in the experts transcribed of the two an trials was at both plaintiffs’ proofs The focus forklift, the the alleged defect was testimony expert of the witness’ substance properly design of the forklift failed that factor” into as a "human operator incorporate function, it did because specifically the machine’s operator.4 for the platform a seat or provide not Ap- However, between the Court period trial, Michigan had and the second peals reversal statute,” MCL "products enacted seq., et which MSA 27A.2945 seq.; 600.2945 et 11, 1978, resulting on December effective became legal principles proper as to the in some confusion applied in this case. to be trial, counsel plaintiffs’ the course of During psychol Christensen, experimental Ph.D. in Dr. Julian who held a expert factors, presented ogy emphasis as an on human with an they of machines. Dr. Christen relate to control in human factors sen testified that: not long story essentially, that man was the idea is "This is a but design. It integrated to use it. was properly A man had into this designed improperly for a man to designed for a man to use. It was introduce, this safely. that he started to I think this booklet use evidence had a they they part that their realized is an admissiоn on They very dangerous to issue all kinds here. had warnings pamphlet and so on. in this kind of "Very essentially, you to control this not allow man should platform on the power been on a the machine. He should have over designed guarded properly If it had been and so on. machine that was that today.” testi- way, Dr. Christensen’s he would not be court jury. mony trial was read to the first engineering Ludwig, expert, mechanical Herbert Plaintiffs’ second University, forklift professor Wayne also testified at State separation of man from on the was unsafe. He too focused separate independent machine, explaining the two constituted ability dangerous of the moving systems of the nature because opinion that the man the man. He offered machine to contact machine, system making part it one “a should have been made whereupon with it ability machine and moves man was on the who completely very greatly reduce would movement] [which the man.” the machine to contact Prentis Opinion of the Court requested separate jury implied instructions on negligence theories,5 and while counsel requested jury for defendant a unified instruction.6 argument After considerable discussion and and a analysis careful review and of the most recent case statute, law under the new the court instructed liability by using on a unified standard of amalgam proof an of the common elements of implied warranty negligence under the theo- ries. judge

The trial instructed the on: 1) Defendant’s duties and liabilities as a manu- facturer: "A manufacturer of a plan made under a for uses for which it is or dangerous which it makes subject manufactured is . . . he should to liability to others whom expect to use the or endangered to be probable use from physical harm caused his failure to exercise adoption reasonable care in the plan safe design.

”A duty manufacturer has a to use reasonable care in request part upon See fn 3. The was based in the assertion that comparative negligence plaintiff should not be considered Michigan products liability because the retroactively, applied statute should not be applied negligence and that even if it could be to the claim, respect should not be considered with to the war ranty subsequently claim. These issues were resolved this Court’s Questions, decision in In Bryant re Certified Conditioning Karl v Air (1982), longer disputed 331 NW2d 456 and are no here. request upon argument 6 This Michigan was based products liability merged recovery statute the theories of based on implied warranty. However, counsel for defendant argument conceded in oral before this Court that: "As to a seller may very there warranty theory]. well be distinction between [a and the . . . well be [T]here some circumstances where implied warranty recovery might an despite occur in a case the fact But, negligence.” case, there was no he maintained manufacturer, where the seller was also and the case was based product, a defect in negligence given the instructions blended the implied warranty appropriate. theories and were 421 Mich 670 the Court of guard a foreseeable designing product and his injury this even and unreasonable risk and anticipated.” might reasonably be misuse which include 2) defen- plaintiff of both conduct Negligent dant: 'negligence* respect I with when use word "Now conduct, I failure to do do mean the

to the Defendant’s something or the reasonably person careful would which a something reasonably a careful doing of which you the circumstances which person would not do under in this case. find existed reasonably careful you to decide what a "It is

person or not do under the circumstances. would do care,’ 'ordinary I mean the I use the words "When person under the reasonably careful would use care a circumstances which law does not you find existed in this case. The person say a careful what not under such circumstances. would do or would That is for do you to decide. the Plaintiff in connection duty

"Now it was the own to use reasonable care for his with occurrence Defendant in connec- safety, duty and it was the ordinary care for the tion with this occurrence to use safety of the Plaintiff.” on

Following jury liability, instructions court read written theories of parties’ both including plaintiffs’ case to the claims under jury, jury warranty. both and breach form which panel given special was then a verdict following question: first asked the "Question No. 1: the motorized hand truck defec- Was tively designed by Manufacturing Company? Yale — No). (Yes or "Answer: "(If no,

your any answer is do not answer further questions).” negative No. 1 was answered in the

Question Prentis v Opinion of the Court cause of of no judgment a panel, February on trial court entered action 28, 1980. appeal claim timely filed

Plaintiff May On Appeals. Court of opinion curiam per published issued Appeals remanding judgment trial court reversing the Yale, trial. Prentis App for a new held Appeals The Court 323 NW2d give properly trial court’s failure implied warranty instruction requested trial. We requiring new error was reversible appeal for leave to application granted defendant’s (1983). 417 Mich 1039 on June II Analysis Status of Law Current Liability Rеgarding for Manufacturers’ Design Defective for development liability The of the law of tort physical injury by products perhaps caused is striking most and of all dramatic numerous stories in portfolio of modern tort scenarios.7 When goal holding the societal manufacturers accountable for safety products of their has been threatened interposition of technical law, rules of it has been the rules that have gradually given way.8

However, this has never meant that courts have 7Wade, product ’’design actionability, On defects” and their 33 Van (1980). L R 551 8 Motors, Henningson Since the landmark decision in v Bloomñeld Inc, 358; (1960), 32 firmly NJ concepts A2d 69 such imbedded notice, privity, bystander lack of and the innocent rule have all but single-factor no-duty vanished as from tests that immunize a defendant See, liability. e.g., Co, Remington Inc, Piercefield v Arms Mich negligence gence. 133 NW2d contributory Other bars such as mitigated by application comparative negli have been 600.2949; See MCL MSA 27A.2949. 421 Mich liability impose willing absolute

been application, theo earliest from their and context ries of doctrines imposition liability as tort viewed have been with be confused should not which liability. Court As this of absolute Remington Inc, Arms Piercefield noted in (1965): 85, 98-99; 133 NW2d allege this is with- quibbler "Some upon the plaintiff relying It not. ... out fault. rule must turer and the [A] manufac- to thе attributable prove a defect that defect between causal connection complains. When able damage he of which injury that, may he recover only then do then and to the manufacturer product.”9 the defective pol- accepted the social courts have Thus while prod- injured icy defective those rationale injuries compensated with- their ucts should be being subject intricacies of to the contractual out agreed that manufactur- sales, have the law of effectively the costs distribute can most ers gone they injuries,10 make far as to never so have dissent, post, p agree Justice Levin’s We do not with concepts concepts in Piercefield. abandoned fault this Court repudiated requirements privity the notice of contract and in Pierceñeld were Piercefield, pp 99-100. See act. See of the uniform sales Although accompanying the instruc the Court found text fn 10. also Pierceñeld, proper theories both tions on the basis for manufacturing alleged was an in that case interpret defect, in this case. Nor do we an issue not before us concept liability adoption of strict as an decision in Pierceñeld in tort. Justice Levin in Cova v NW2d 800 opinion pointed in his oft-cited this out himself 602, 612-614; Co, App Harley Motоr 26 Mich Davidson (1970), explained potential for confusion he where "generally liability, arises liability which with "absolute” "strict” "defect,” id., 613, p fn 24. He regard there is a without to whether adopt Michigan approval courts to such the refusal of examined with confusing potentially misleading standard. Piercefield, Phillips See, supra. Machine e.g., v Kimwood See also (1974). Co, searching analyses see 485, 503-504; more For some of the 525 P2d 1033 269 Or theorists, by rationales law and economic of these Posner, (1970); Analy Calabresi, ‍​‌​​​​​‌‌​​‌‌‌​​​‌‌‌​​‌‌‌​‌​‌‌​​‌​‌‌‌​​‌​​‌‌‌​​‌‍Economic The Cost of Accidents (2d Hirschoff, ed), 6.11-6.12; Toward a test Calabresi & sis of Law §§ Prentis v Opinion of the Court products sellers insurers of their and thus abso- lutely injuries any liable for and all sustained products.11 from the use of those every state, Like the courts in other whether upon negligence implied warranty, suit is based we require plaintiff prove to something wrong itself is actionable —that it that makes it thing wrong” is with dangerous. This idea of "some expressed usually adjective plaintiff every must, "defective” and the case, every jurisdiction, show that was de e.g., supra. See, Piercefield, fective. gives art, difficulty

As a term of "defective” little something goes wrong manufacturing when process and the is not in its intended "manufacturing condition. In the case of a defect,” product may be evaluated the manu- production facturer’s own standards, as manifested products.12 that manufacturer’s other like injuries However, caused the condition of a product may product’s also be if actionable design, which is the result of intentional decisions of sufficiently the manufacturer, is not provide safe. Conscious defect cases no such torts, for strict Coase, (1972); 81 Yale LJ 1055 The problem cost, (1960); social Posner, 3 J Law & Econ 1 Ehrlich & An analysis legal economic rulemaking, Leg (1974); 3 J Studies 257 Henderson, Extending products liability, boundaries of strict (1980); Klemme, U Pa L R 1036 enterprise The liability theory of torts, (1976); 47 U Posner, Colo LR 153 positive reply Landes & theory law, economic (1981); Posner, of tort 15 Ga L R 851 A to some recent efficiency criticisms of theory law, of the common 9 8 (1981); Hofstra L Symposium R 775 efficiency legal concern, as a (1980); Hofstra Hofstra R 811 response L R 485 efficiency symposium, A to the (1980). L 11See, e.g., Parsonson Equipment v Construction 64-65; (1971), 191 NW2d 465 and cases cited therein. 12Birnbaum, Unmasking the test for defect: From warranty] [to negligence, strict The 33 Van L R (1980); Traynor, ways meanings of defective liability, strict Traynor Tenn L R 363 calls this the Id., p "deviation-from-the-norm test.” 670 684 Opinion of the Court very question simple a defect whether test. only inquiry. It is to a court’s is central fact exists design a court is called defect cases in supply Thus, the defectiveness.13 for the standard epithet design is "an cases "defect” in term —an legal expression rather than conclusion for Wade, reaching On See that conclusion.” for test actionability, "design and their defects” L R Van "design present, questions defects” related

At product is defec- of when a the determination design, appear to tive, nature of its of the because agitated issues be- and controversial the most be liability.14 products A in the field fore the courts Weinstein, critique the uniform A Twerski & See (1978-1979),for judgment, L R 221 28 Drake law—A rush to distinguishing implicit between many problems analysis of the imposing purpose liabil manufacturing ity. defects for 14 observing struggle to define and commentators of courts In Twerski noted: defects Professor the contours of actionable defect, obscenity in Justice Stewart’s like "It now be true that Unfortunately definition, impression. T by sense will be discovered judicial standard not suffice as know it when I see it’ will Twerski, comparative products liability.” cause to From defect to Marq concepts, Rethinking product liability L R some fault — (1977) regarding (referring concurrence to Justice Stewart’s 304-305 Ohio, 184, 197;84 S "obscenity” 378 US in Jacobellis v the definition of [1964]). 12 L 2d 793 Ct Ed past products liability has decade Most of the literature Birnbaum, fn establishing defect. See standards for focused on liability: supra; Epstein, for the middle The search Produсts Henderson, (1978); manu ground, review of L 643 Judicial 56 NC R adjudication, 73 Colum choices: The limits of facturers’ conscious Henderson, concept: (1973); Expanding L R 1531 Henderson, law, (1976); 51 Ind L J 467 Retreat from the rule of Manufacturers’ statutory proposed product design: A for defective Henderson, judicial reform, (1978); R 625 Renewed 56 NC L design: preservation controversy Toward the over defective Henderson, (1979); consensus, emerging Process Minn L R 773 an (1982);Hoenig, designs tort, Product L R 901 constraints in 67 Cornell approach?, R 109 liability: 8 SW L there a tort Is better strict meaning Keeton, (1976); defect, liability Design hazards and Products — (1979); Phillips, determin The standard for 10 Cumb L R 293 (1977); liability, ing 46 Cin L R 101 defectiveness Schwartz, Understanding products liability, L R 435 67 Cal Foreward: 1984] Prentis v Yale op appellate they courts, number of aware that are engaged molding in the conscious task of the law products liability, have become concerned differentiating they clarity are not with sufficient recovery design between various theories in response, they sought defect In cases. have to significant devise and well-articulated distinc- time, tions.15 At same other courts have be- come concerned that the differentiation is too great, attempted and have to devise means of keeping scope liability the broad in check.16The result has been in several cases whiсh stan- liability design very dard for carefully area has been vigorously

examined courts and often judges survey debated important themselves. A of the neighboring jurisdictions

recent cases in suggests something of the creative ferment under- lying tapes- what has been described as the "rich try” developing of the common law of liability.17 approaches

The for determination of the mean- (1979); Twerski, Seizing ground the middle between rules and stan- litigation: Advancing practice dards in directed verdict torts, (1982); Twerski, in risk-utility the law of 57 NYU L R 521 From expectations: Enhancing judicial screening consumer the role of in liability litigation, (1983); Twerski, 11 L R Hofstra 861 Weinstein, Piehler, warnings Donaher & The use and abuse of in products liability Design age, defect comes 61 Cornell L R 495 — (1976); Wade, supra. 7fn 15See, e.g., Co, Inc, Engineering 413; Barker v Lull 20 3d Cal Rptr 225; (1978), Supreme Cal Court reexamination of 573 P2d 443 in which the California attempted distinguish liability strict in its concept in of defect defect cases. At least doing, one commentator has observed that "in so California [the Supreme has further confused the delineation Court] between strict Birnbaum, negligence concepts.” p supra, fn 12 16 See, e.g., Homes, Brady Melody App 121 Ariz 589 P2d (1978). Weinstein, critique See & Twerski A of the uniform judgment, supra, p law—A rush to fn discussion of among Jersey these cases. See also the debate members of the Nеw Supreme Angelo Foundry in Suter Court v San & Machine NJ 150; 406 A2d 140 op gen- ing fall into four cases “defect” ¡associated usually categories. first, with The eral Dean ysis, risk-utility employs anal- Wade, manufacturer known of the whether but focuses negligent judged if it had would be product’s dangerous time it at the condition second, Dean Kee- associated with marketed.18 utility compares at ton, the time of the risk and on consumer The third focuses trial.19 expectations The fourth com- about product.20 consumer-expectation risk-utility and bines many included other courts have tests.21 While individual overwhelming in their variations formulations,22 among deciding courts consensus the use some form of cases defective risk-utility analysis, an or alter-

either as exclusive analysis Risk-utility ground native liability.23 18 imputed risk-utility a test with has been characterized as This knowledge See J the time of manufacture or sale. of all risks "knowable” at Wade, liability products, 44 L Miss On the nature of strict tort (1973). 825, 834-835 19 Keeton, meaning liabUity: of in The "defect” See Manufacturer’s 559, products, Syracuse L R the of 20 569-571 manufacture and trial, (1969). knowledge approach imputes the if at time of even This Thus, the or sale. the risk was unknowable at the Keeton would hold a manufacturer product time time of manufacture disagreement is the time factor. Wade and Keeton over between of its liable when the risks use of utility, information available at the exceed trial, based at the time of even if those risks were unknowable of or would not. manufacture sale. Wade 20 2d, Torts, 402A, warranty principles i. This test is said 2 Restatement Comment See § origin to severely its Twerski, and has been have its in contract and haphazard subjectivity of the involved criticized because Birnbaum, supra, pp application. fn 12 611-618. But see See supra. expectations, risk-utility fn 14 From to consumer See, a P2d standard. 21A number of courts have embraced combined (Alas, e.g., Beck, 871, 1979); Caterpillar 885 Tractor Co v 593 Co, 413, 432; Rptr 225; Engineering 143 Cal Barker v Lull 20 Cal 3d Co, (1978); Angelo Foundry 573 NJ San & Machine 81 P2d 443 Suter v (1979). 150, 170-171; 140 406 A2d proof placing the on defendant once These include: burden case, see, Barker, plaintiff imputing knowledge e.g., supra, prima made has facie manufacturer, see, e.g., danger the to the Suter, supra, p fn 21 (alternative Co, ground); See, supra e.g., Caterpillar Tractor fn 21 Prentis v op context involves assessment always respect decisions made manufacturers with design of their products. the purports watchdog "The law to stand as a to ensure product design decisions made manufacturers expose product not users to unreasonable do risks Thus, case, injury. in a the issue is weighed the properly whеther manufacturer the alter- natives and oped thereby evaluated trade-oifs and devel- product; safe is focus unmistak- quality ably on of the decision and whether socially acceptable decision conforms to standards.”24 balancing is risk-utility test a de- merely tailed of Judge version Learned Hand’s Co, calculus. See United Towing States Carroll (CA 1947). 159 F2d As Dean Prosser out, has pointed of the manufacturer "upon rests departure proper standards care, so that essentially tort a matter negligence.”25

Although many courts have insisted (alternative Barker, ground); (alternative supra ground); Suter, supra fn 376; 115; Micallef v Miehle 39 NY2d ‍​‌​​​​​‌‌​​‌‌‌​​​‌‌‌​​‌‌‌​‌​‌‌​​‌​‌‌‌​​‌​​‌‌‌​​‌‍384 NYS2d (1976)(exclusive ground); Piper NE2d 571 Or these cases doctrine of strict adopted. Corp, Wilson v Aircraft (1978) (exclusive ground). 577 P2d 1322 It should be noted jurisdictions adopted were decided in that have expressly tort which this Court never has However, See fn 9. this distinction is not fatal to our analysis. accompanying fn See 25 and text. 24Twerski, Weinstein, Piehler, Shifting perspectives Donaher & products liability: quality standards, process From 55 NYU L R 347, 359 Evaluation of trade-offs take into account factors performance such as requirements requirements, the effects of those reducing hazards, utility product, cost technological capabilities. Id., and p 357. 25 (4th Prosser, ed), 96, p place Torts § 644. This discussion took in tort, which, liability the context of contrary strict in to the assertions dissent, adopted. post, of Justice Levin in his this Court has never See p J., dissenting), (Levin, However, 697 see also fn 9. as Prosser emphasized adopted manufacturer’s quoted passage, jurisdictions even in that have doctrine, liability proper determining the strict the test for a design negligence. for defective is Mich 670 421 op negli- are not applying are they tests risk-utility is on the their focus because gence tests conduct, see, e.g., the than manufacturer’s rather Inc, 3d Engineering Lull Cal Barker v (1978), the 225; 573 P2d Rptr Cal to be appears examination distinction closer a common-sense than As nothing more semantic. pre- competing factors matter, jury weighs the conclusion about and reaches a sented in evidence conduct) (i.e., or decision judgment underlying negligence calculus The manufacturer. by As noted Professor Birnbaum: inescapable. is outweighs of harm jury decides that risk "When a (that not particular is utility be) choosing the saying that in safe it should it is as particular exposed trade-offs, cost manufacturer he greater danger than the consumer to risk ap- Conceptually analytically, should have. proach bespeaks negligence.” Birnbaum, Unmasking war- From test for defect: [to L R ranty] negligence, tо Van to strict (1980) p Engineering, supra, (quoting 610 432) v Lull Barker added). (emphasis weighed The under competing factors be the trier of fact balancing test invite risk-utility consider the alternatives and risks faced light manufacturer and to determine whether reasonable care these the manufacturer exercised Instructing made. making choices it conduct weighing concerning factors does a conclusion that judgment yield must confusing not at best. describe conduct Act Liability The Model Uniform Product published Department voluntary Commerce for use states.26 re- act with adopts system fault 44 Fed Reg 62,714 (1979) (hereinafter UPLA). Prentis Opinion of the Court important design spect It is to examine to defects.27 adoption underlying the UPLA’s of the rationale design liability negligence in criteria rejected, drafters as a reason for defect cases. The application design liability cases, to defect of strict theory distribution wherein the of risk product-related the costs of all seller distributes through liability They insurance. believe that risks liability than a "firmer foundation” strict design is needed product defect case because the whole Furthermore, line is at risk. the drafters system provide greater fault believed that a would prevention.28 incentives for loss approach--of approved The the UPLA has beеn analysis commentators, several whose is also manufacturing First, defects, instructive.29 unlike design defects result from deliberate and docu- part manufacturers, mentable decisions on the of plaintiffs should be able to learn the facts surrounding through these decisions liberalized discovery expert modern rules. Access to witnesses plaintiffs and technical data are available to aid proving design the manufacturer’s decision ill considered. primary purpose

Second, to the extent that a products liability encourage law is to 27Although specifically the act does not include use of the word "negligence,” portion the drafters characterize the having the model into put act as "its roots in the . . law of . appropriate product UPLA, liability terminology.” modern and 104, analysis, citing Towing § United States v Carroll 159 F2d 173 (CA 1947) (the formula). balancing provided Learned Hand The test defect, the UPLA for determination and the list of especially probative evaluation, evidence making deemed clearly requires a determination as to whether the manufacturer concept. acted under all of the circumstances. It is a fault 104(B). Id., Elfin, changing philosophy products See also § proposed acts, product liability and the 267, model uniform Am19 Bus L J 28UPLA, analysis. 104§ Elfin, supra, pp 293-294; Birnbaum, supra, pp See fn 27 593-594. 421 Mich Opinion of the Court the incidence reduce thereby products

safer reward that would standard injuries, the careless penalize manufacturer the careful greater A purpose. achieve that likely is more will result safer incentive to careful devoted resources where system a fault in the form dividends pay design will and safe for premiums insurance and lower claims fewer record. good design safety awith the manufacturer that knowledge the result incentive will are care- those who is made between a distinction are not. ful and those who in a Third, plaintiff for the a verdict of a determination equivalent is the defect case It usually line is defective. that an entire the manufac- portion of significant involve a will deprived be public may turer’s assets and the Thus, required should be plaintiff product. in order to threshold of a fault test pass higher line. The traditional threaten an entire purpose. serves this tort law of better in- Fourth, greater system incorporates a fault safety-oriented trinsic fairness in that the careful manufacturer will not bear the burden paying It negligent product for seller. losses caused will also follow that the customers of the careful manufacturer not for through prices pay will bonus, the negligence of the careless. As a final the careful manufacturer fewer claims and with lower lower premiums may, through insurance prices as products, well as safer attract the cus- competitors. tomers of less careful We find the UPLA on adopted by formula question of defective to have the merit of being clear and recognize understandable. We that in products against cases manufac- upon alleged turers based in defects product, a attempted courts this state have Prentis qp negli- implicit in of fault the notion both to avoid implicit in gence no-fault harshness of liability. Thus, of the heri- on the basis absolute concepts underlying tage law and sales of contract past approved implied warranty, have we jury’s attempted atten- to focus a instructions tion on the product rather than on condition of conduct the manufacturer’s the reasonableness doing persuaded in so We are or decision. manufacturers of of cases the context products allegations de- of defective based process engaged sign, have in a have we enlighten, jurors, confuse, than rather served to guide- ultimately apply understandable must who rights adjudicate justly they lines if are parties. Imposing stan- of all duties litigation only to define dard a coherent fаshion litigants in this case what our jurors arguing are in our in fact and what are adopt, forthrightly, analyzing. Thus we essence pure negligence, risk-utility liabil- test products, against ity manufacturers of actions design. upon predicated liability defective where Ill Application to the Facts of This Case products liability action in We hold that against alleged in defect a manufacturer for an product, the the properly of its where negligent theory of instructed on the design, judge’s to instruct the trial refusal warranty error. Such breach of was not reversible juror confusion instructions could have created and prejudicial Indeed, error. an instruction such unnecessary repetitive and would have been and believing that could have misled the plaintiff into warranty count even could recover on 421 Mich of "defect” was no it found there if Sons, Squibb ER & Smith v See product. (1979). 79, 91; 273 NW2d Mich do to its facts. We solely limited opinion is This negligence and suggest that not recovery; theories of and distinct separate not are dissenting), J., (Levin, supra, p Squibb, see statute, MCL Michigan products 27A.2945, all former 600.2945; merged has MSA action into or causes of liability theories products We do theory.”30 single "products liability unified recognized distinction dispute generally not negligence and breach the elements between negligence theory recognize We warranty. conduct, re- on the defendant’s generally focuses unreasonable, showing it was while quiring upon focuses the fitness of warranty generally conduct. irrespective of the defendant’s product, J., Squibb, dissenting). (Levin, supra, pp 98-99 See recognition that holding upon This is based under the common an liability, law action the manufacturer of a alleged design, an based defect its "breach implied warranty involve identi- require proof cal evidence and the same exactly Squibb, supra, p elements.” A See manufac- turer duty has a so as to 1979). (ED Crop Service, Mich, Supp Cf. Jorae v Clinton 465 F Questions, Bryant As we noted in In re Certiñed Karl v Air Condi Co, tioning supra, p 567, reading fn 5 "Our of the statute does not require Legislature completed possi us to determine whether the products liability negligence implied warranty ble confluence of separate into one cause of action or whether two remain actions still extant.” Thus, conceded, only as defense counsel has see fn time the implied warranty any distinction between significance have cases, determining is in of a e.g., See, product. seller who is not also the manufacturer Bronson vJL Hudson 135 NW2d 388 We also required separate are not in cases to determine whether the two theories are alleging mаnufacturing. defects in Prentis v Opinion of the Court foreseeable risk of unreasonable any eliminate Corp, Allis-Chalmers Mich v Owens injury. (1982). the lack For 413, 425; 326 NW2d duty, of such in the face care reasonable in a answerable may be manufacturer Corp, 81 Mich Motors v American action. Elsasser (1978). pro- When 379, 384; 265 NW2d App a warranty, implied theory under a ceeding prod- that proof is established design defect intended, uses for the reasonably safe is not uct foreseeable. Dooms reasonably anticipated, 14; 241 Bolling & App 68 Mich Stewart den (1976), For Iv NW2d respect, in such defective the sale of an answerable for breach may be seller Elsasser, Thus, supra. when the issue is warranty. seller, was also the of a manufacturer who could determine inconceivable that it is duty had not breached the manufacturer time find that and at the same reasonable care reasonably safe for its was not in either case turns question uses. The foreseeable and as safety, care and reasonable on reasonable Prosser, out Dean pointed proper "upon departure manufacturer rests essentially of care so that the tort standards negligence.”31 matter of these to the facts of this

Applying principles case, although alleged injuries their plaintiffs proximаtely were caused defendant’s their evidence implied warranty, breach of an single at claim that proofs trial focused on the designed hi- defectively the defendant the "walkie forklift, lo” a seat or provide because failed Thus, platform for under operator. recovery required either to determine theory (4th Prosser, ed), 96, accompanying p Torts also text See § 24-26. fns 421 Mich Opinion of the Court defectively designed by

the forklift was defendant. Fox, Caldwell v (1975). 231 NW2d 46 inquiry The factual was: whether the de- sign "unreasonably of defendant’s forklift was dan- gerous” plat- because it did not contain a seat or operator. supra, p Owens, form the See 427. determining The test for whether the was "unreasonably dangerous” was: whether the al- leged product created injury. an unreasonable risk of foreseeable Elsas- supra. way, ser, Stated another whether the manu- duty facturer to intended, uses. under a to use reasonable care design product reasonably a that was safe for its

anticipated, or foreseeable Bolling, supra, p v Dooms Stewart properly recognized The trial court standards of under the theories of indistinguishable were only and that instructions on both would confuse jury. Accordingly, judge’s the trial instructions regarding the of care and theories of standard liability properly jury informed the of defendant’s legal duties as the manufacturеr of the forklift. necessary The court set forth the determining elements for defectively whether de- defendant signed the forklift it when stated: product plan "A manufacturer of a made under a for uses for which or dangerous it which makes it is is[, however,] subject liability to oth- manufactured ers whom he should expect to use the or to be endangered by probable physical use from harm caused adoption failure to reasonable care in the his exercise plan design. of a safe duty "A manufacturer has a to use reasonable care designing guard against his foreseeable injury and unreasonable risk of and this even anticipated.” might reasonably include which be misuse essence, In was instructed consider Prentis v Dissenting Opinion Levin, J. whether the manufacturer took reasonable care light any reasonably foreseeable use of the Cald- might which cause harm or injury. Fox, supra. well

Therefore we hold that manufacturer, action based defec- tive design, need be only instructed on a single theory negligent design.32 unified of the Court judgment Appeals re- is versed, judgment and the of the trial court reinstated. Ryan

Williams, C.J., Brickley, JJ., and and Boyle, concurred with J.

Cavanagh, J., concurred the result only. Levin, J. (dissenting). opinion The of the Court states that the trial court "instructed the jury on a unified standard of an liability by using amalgam of the common proof elements of under the im plied warranty and theories.” The opinion also states the "trial court properly recognized that the standards of under theories of and negligence were indistinguishable, and that instructions on both would only confuse the jury.”2 Accordingly, trial judge’s "amalgam” instructions —the of the "indistinguishable” implied warranty negli and gence properly informed the of. jury theories — "necessary elements for determining whether de fendant defectively designed the fork-lift” when he approve recently adopted We thus the use of the version of SJI2d 25.32, disapprove but of the use of SJI2d 25.22 in the case actions the manufacturer aof where the upon alleged design action is based an defect. Directed verdict forms changes. should also be corrected to reflect these 1Ante, p 679.

2Ante, p 694. Mich Dissenting Opinion Levin, J. product made manufacturer of a stated that "a plan dangerous it under a or which makes subject to for uses for which it is manufactured” is liability "physical harm caused his failure adoption reasonable care in the to exercise design,” plan or and when he instructed— safe conjunctively alternatively unclear— whether duty manufacturer has a "to use reason- that the designing guard his able care against risk of a foreseeable unreasonable injury, even include misuse which might reasonably anticipated.”3 be opinion that the of the Court further states judge’s of the instruction was that the essence the manufacturer any reasonably took should "consider whether light foresee- reasonable care might cause harm or able use of the which opinion injury.”4 conclusion, Court In product liability "against a that in a action states manufacturer, design,

based defective single only on a unified need be instructed theory negligent design.”5

I confusing agree the there is a risk of We jurors asking focus, in in them to their evaluation complaint, the the on whether of one count of up to the law’s manufacturer’s conduct measures asking ‍​‌​​​​​‌‌​​‌‌‌​​​‌‌‌​​‌‌‌​‌​‌‌​​‌​‌‌‌​​‌​​‌‌‌​​‌‍care, them, in evalua- their standard of complaint, put the tion of another count of whether the manu- from their consideration aside solely on and to focus facturer was at fault 3 Ante, p 694.

4 Ante, pp 694-695. 5 Ante, p 695. 697 Prentis Dissenting Levin, J. fit.6 That there product reasonably is whether what is the not decide does such confusion may be inquiry. of the form correct stat- liability of the The construction not re- would to be correct ute7 that we believe manufac- to determine whether quire jury finding regarding or to make turer was at fault in- manufacturer’s conduct.8 to deter- have instruсted case should been stant reason- designed mine whether or and uses intended purposes fit for the ably designer-manufac- foreseeable which, turer, governed until today, the standard there has been a the determination whether of the implied warranty. breach thought policy question had We whether should be asked to assess the prod manufacturer’s conduct or the fitness of the prod uct had been decided the evolvement of liability negligence-fault concept ucts law from the in concept adopted by to the of strict effect Co, Remington Piercefield v Arms in this Court 85; (1965), 375 Mich 133 129 NW2d and set forth Torts, in 2 2d, 402A, Restatement pp 347-348.9 § Co, Harley 602; App See Cova v Davidson Motor 26 Mich (1970), advocating adoption single theory NW2d 800 unified products liability. 600.2945-600.2949; MCL MSA 27A.2945-27A.2949. Michigan only Amicus curiae Defense Trial Counsel contends "[mjanufacturers duty produce have a which is not unreasonably dangerous light injury,” in of the foreseeable risks of "a unreasonably dangerous light which is not of the foresee added.) injury.” (Emphasis able risk of 9See, liability Michigan: Comment: Implied warranty, Products tort, both?, (1969) ("In Wayne strict or L R Piercefield v Remington Co, Michigan Supreme adopted Arms Court the strict guise tort also doctrine warranty theory”). under the See App Williams v Detroit Edison 234 NW2d (1975) ("Regardless of whether the tortious conduct labeled breach of whether the claim is founded on strict tort, plaintiff basically prove seems that must same ele- [the 670 Mich 421 by Dissenting Opinion Levin, J.

II the various opinion discusses The liability and acknowl- theories edges the risk-util- insisted "have courts applying tests they are not ity are tests than rather focus is their because origi- (emphasis in conduct” manufacturer’s the nal), on closer distinction that "the but states nothing appears than more to be examination semantic.”10 general opinion four cites of the Court meaning determining approaches of defect. for product, approaches not on on the focus These expec- The consumer conduct. manufacturer’s the tation test expectations emphasizes "about product,” conduct. manufacturer not about risk-utility concen- also formulations The three risk-utility product. tests While trate on the may made of the decisions "assessment involve respect their to the manufacturers with added) appear (emphasis products,”11 not does the manufac- determinative that the assessment liability affected turer’s defect is the identical assessment judg- made when 74, 78; App ments]”); Corp, 83 Mich Allis-Chalmers Owens v (1978) ("This requisite recognized that has Court NW2d elements for a cause of action based congruent tort are strict warranty”); Tulkku v Mackworth to those for breach (1980) (On 709, 722, 4; Remand), App 301 NW2d Mich fn Rees implied warranty ("[T]he Michigan differently, of fitness is worded doctrine concept practical indistinguishable virtually but is tort]”); Chrys- concept Johnson v effect of strict [from (1977) ("If anything, 532, 535; Corp, App 254 NW2d 569 ler 74 Mich liability theory in a proofs presented under a strict that would be presented proofs overlap would be case would with warranty theory”); similarly, see Dooms v Stewart under an (1976); 5, 15; App Bolling Auto-Owners 241 NW2d 738 & 68 Mich 38, 43, App Chrysler Corp, fn 341 NW2d Ins Co 10Ante, p 688. 11Ante, pp 686-687. Prentis v Dissenting Opinion Levin, J. manufacturer-design-

ing the reasonableness er’s decision. this illustrate cited

The authorities cited cases would In one of the five point. only to deter- manufacturer’s conduct court look to the the court’s state- and in that case liability, mine ment was dictum.12 weighing the risk and

Dean Keeton advocated at the time of trial.13 Keeton product utility hindsight to allocate to the manufac- would use un- including turer all those which were risks a knowable marketing.14 at the time of While negligent manufacturer could not be found for 12 1979) Beck, 871, (Alas, (jury Caterpillar 593 P2d 876 Tractor Co v product, in which the however instructed that perfectly defect is one "[a] manufactured, incorporates incorporate or fails to a injury proximately thereby”; feature with the result that caused supreme plaintiff adopted the test set fоrth in Cal the safely fails to design outweighed a for court reversed verdict Inc, Co, 413; Engineering 20 143 Barker Lull Cal 3d 225; Rptr [1978], requires judge 573 P2d 443 which a to instruct perform that a if is defective in it to as "fail[s] ordinary expect” as an consumer would or if "the defendant prove challenged . . . that on balance the benefits Beck, danger design.” the risk of inherent such Inc, supra, p [emphasis added]); Co, Engineering 884 Lull Barker v (see Beck, supra Foundry Angelo supra); discussion under Suter v San (1979) Co, 150; (jury & Machine 81 NJ 406 A2d 140 in plaintiff required prove structed that to "that had not intended,” ordinary been fit for the use for which was id., p [emphasis added]; supreme 168 court sustained the instruc tion, saying principle liability, of strict the focus "[t]he shiftfs] conduct, id., generally, product,” p as in law to the [emphasis added]); 376, 387; 169 Micallef v Miehle 39 NY2d (1976) (instructions 571; implied warranty NE2d action not 384 NYS2d 115 opinion, stated but court states that "under a products liability, doctrine of strict the manufacturer of a defective any person injured damaged is liable to or if the defect was a bringing id., injuries damages,” p substantial factor in about his [emphasis added]); Piper Corp, Wilson v Aircraft 282 Or (1978)(instructions reproduced; that, P2d 1322 not court held because defect, there was insufficient evidence of a the case should not have gone dictum, however, jury; emphasize to did the conduct of the manufacturer). 13Ante, р citing Keeton, liability: Manufacturer’s meaning products, of "defect” in the manufacture and Syracuse L R 569-571 14Keeton, supra, p fn 13 Mich Dissenting Opinion Levin, bv J. failing risk, protect an unknowable to the manufacturer nevertheless hold Keeton would prod- designing subject defective uct. position "has been character

Professor Wade’s knowledge imputed utility risk test with ized of manufacture at time of all risks 'knowable’ approach Although considers manu or sale.”15 proffered jury conduct, instruction Wade’s facturer focuses on duly product: [product] "A is not persons likely [or if to be harmful safe property] it is so prudent [sic] manufac reasonable knowledge [supplier], turer who had actual place not it on the mark harmful would character added.) (Emphasis et.”16 Ill it true there is a basis for distin- Nor is that guishing liability other defect and between negligence more of is not cases. Evidence readily manufacturing in cases than uncovered in defect cases. Professors Twerski

defect perhaps no "[t]here and issue is Weinstein observed litigate plaintiff than difficult for a to more knowledge have for what the state of should been expertise in his field.”17 a manufacturer with may manufacturing case, In a there be defect expert data, documents, timony witness tes- technical demonstrаting took that the manufacturer extraordinary precau- indeed, and, all reasonable law—A rush to information, liability L J Keeton, 15Ante, p 16Wade, 825, Twerski & and the fn 13 839-840 On 686 and 48 Tex L supra, p the nature of strict judgment, Weinstein, meaning (1973). fn 18. R 28 Drake A defect, Keeton, critique 407-409 tort 5 St L R Product liability Mary’s (1970), the uniform liability L J (1978-1979). products, 44 Miss Keeton, — Inadequacy See also Product liability Prentis Dissenting Opinion Levin, J. Such a man- manufacturing defects. tions to avoid no than a manu- protection deserves less ufacturer designing in used reasonable care facturer who fit. nevertheless was not product which to an incentive-deterrence If are to return we model, gained, there is as much to be arguably view, extending in point from a societal manufacturing defects.18 concept sure, there is a To be a verdict be seen as an indictment of an entire may It line. does not follow that a verdict holding against the manufacturer will result in public being deprived product; litigation years will have stretched out over before such a appeals verdict is rendered and then there are and, case, appeals— this retrial and further 24, 1972, August action was commenced that, twelve years ago. taking likelihood litigation, into consideration what is learned will, measuring the manufacturer risk-utility, improvements make such as it finds desirable. It has not been shown that there is need 18Assuming promotes safety that a standard more effec- tively standard, today’s might than a strict decision encour- age pursue designs expense manufacturers to at "fail-safe” quality control. Professors Twerski and Weinstein said: "By imposing production a strict standard for defects and a design defects, aggravates standard for the UPLL an already development product safety, difficult situation. In the there may increase Another ways safety way may be several to address a hazard. One be quality integrity part. control to assure the of a crucial (a design back-up safety compo- be to feature fail-safe nent). (in By deciding that construction defect cases are not defensible fault), liability applies regardless that strict and that defect (on negligence grounds), risk-utility cases are defensible the UPLL has made a conscious decision to favor the alternative over quality that increased quality may short-sighted approach. possible control. This be a It is safety accomplished raising can be at a lower cost by designing system control standards rather than a fail-safe engender difficulty litigation that could other risks. The is that the categories by lawyers. Engineers have been created who must think may totally unsatisfactory.” in functional terms find the framework Twerski, supra, p fn 17 421 Mich Dissenting Levin, J. than defect cases for

for a lower standard protect manufacturing in order to defect cases public or the assets” the "manufacturer’s either deprived product.19 being aof IV Assuming, opinion states, as the implicit jury was— that in a verdict applying standard —"defec- designed,” tively the man- is a determination design; unreasonably acted ufacturer question of the manufactur- reasonableness of the product, and the reasonableness er’s conduct indistinguish- case, are not defect in a even able or identical. spectrum If reasonable is broad. of what is

The men and women otherwise, all reasonable were nothing agree, there would be would looking juries the same at Different assessment. regarding may conclusions facts reach different may unim- be verdicts is reasonable and both what peachable. the answer It for this reason is phrased.20 depend question on how the single opinion not cite a the Court does it would have where a was instructed case juries Cases in this state. instructed henceforth argument, if Addressing fairness” fourth and final "intrinsic premiums lower insurance is rewarded with a careful manufacturer regard liability experience, then without based on his system, that manufac or a there is а fault whether paying for losses caused the burden of turer will not bear experience. satisfactory product liability To a less manufacturer with the extent that argument incorporates result of a lower fault actions, products liability fewer successful in terms of standard argument begs question lower stan there should be a whether dard. Sons, Inc, 79, 98-100; Squibb Smith v ER & 20 See (1979) (Levin, J., dissenting). NW2d Prentis v Dissenting Opinion by Levin, J. recognize appear cited the Court21 proper inquiry is whether the is reason- purposes. ably fit for its intended or foreseeable logic, jury might While, as a matter of not bring in a verdict both that the manufacturer had duty not its care and that breached reasonable reasonably was not safe uses, not, for opinion foreseeable as the declares,

of the Court "inconceivable” that Experience would do so. has shown that juries just They do that. do find a manufacturer product, fault, nevertheless, not at but the defec- question preordains tive. The form of the often desirability and directs the answer.22 The need or obviating juror repeat, not, confusion does we inquiry. decide what is the correct form of the Appeals. We would affirm the Court of J., concurred with Kavanagh, Levin, People United ^[21] See fn 12. Courts differ from the v States, Woods, recognize 348 US language ‍​‌​​​​​‌‌​​‌‌‌​​​‌‌‌​​‌‌‌​‌​‌‌​​‌​‌‌‌​​‌​​‌‌‌​​‌‍121; the lexicon 75 S Ct of the evolvement of a rule of law. See 626; 331 NW2d 707 appropriate 99 L Ed 150 (1982); instruction Holland v

Case Details

Case Name: Prentis v. Yale Manufacturing Co.

Court Name: Michigan Supreme Court

Date Published: Feb 11, 1985

Citation: 365 N.W.2d 176

Docket Number: 69581, (Calendar No. 3)

Court Abbreviation: Mich.