Wiegerink v. Mitts & Merrill
452 N.W.2d 872
Mich. Ct. App.
1990
Check Treatment
Per Curiam.

Plаintiff appeals as of right from a judgment of no cause of action following an Ottawa County jury trial. We affirm.

Plaintiff brought а cause of action against defendant for injuries caused by a "wood chipper” machine manufacturеd by defendant. Plaintiff worked for S & H Tree Service for several months prior to his injury. Plaintiff was instructed on how to use the chipper and operated it fifteen to twenty hours per week. He specifically knew that he should not put his feеt into the feed chute.

On the day of the incident, plaintiff drove the chipper to the work site. Plaintiff claimed he рarked the truck with the chipper attached on a crest of a hill which caused the end of the chute to tilt dоwnward. The lip of the chipper was approximately six to seven inches from the ground. Plaintiff claimed that he рicked up a curved tree and threw the trunk end of the tree into the chute. As the tree trunk hit the rotor blades, the tree rotated, caught plaintiff behind his legs, and knocked him to the ground. Plaintiffs foot became snagged on a branch and hе was pulled into the chipper, feet first. As a result, plaintiff lost his right foot from above the ankle.

Plaintiff brought suit, alleging that dеfendant was negligent in failing to install safety devices on the chipper and in failing ‍‌‌‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌​‌​​‌​​​‌‌‌​‌‌‌​‌​‌​​​​​‌‌​​‌‍to provide appropriаte warnings regarding the machine’s operation. Plaintiff presented evidence that the chipper was *548 unreаsonably dangerous when operated on uneven ground and that warnings should have been provided regarding the need to operate the machine on level ground to. keep the lip of the chute approximately twеnty-seven inches off the ground. Defendant argued that it was impossible for the machine to flip a tree and then pull it and plaintiff into the machine but, rather, that plaintiff had knowingly placed his foot into the feed chute in order to forсe branches through and had been injured as a result. The jury returned a verdict of "no cause.”

On appeal, plаintiff argues that the trial court erred by instructing the jury that a manufacturer of a product is not required to warn of dangers whiсh are open and obvious. We disagree.

The determination whether a jury instruction is applicable and accurately states the law is within the discretion of the trial court. Petrove v Grand Trunk WR Co, 174 Mich App 705, 712; 436 NW2d 733 (1989). In order for a court to give a requested jury instruction, suffiсient evidence must be presented by the party to warrant the instruction. Wincher v Detroit, 144 Mich App 448, 456; 376 NW2d 125 (1985), lv den 424 Mich 872 (1986). Jury instructions are reviewed by this Court in ‍‌‌‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌​‌​​‌​​​‌‌‌​‌‌‌​‌​‌​​​​​‌‌​​‌‍their entirety and should not be extracted piecemeal. Niemi v Upper Peninsula Orthopedic Ass% 173 Mich App 326, 328; 433 NW2d 363 (1988). Reversal is not required if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury. Scalabrino v Grand Trunk WR Co, 135 Mich App 758, 766; 356 NW2d 258 (1984), lv den 422 Mich 877 (1985). We find that, in viewing the cоurt’s instructions in their totality, there was sufficient evidence warranting instructing the jury regarding "open and obvious *549 danger” and that the instruction was an applicable and accurate statement of the law.

On appeal, plaintiff argues that in Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982), our Supreme Court held that the test regarding duty to warn is not whether risks are obvious, but whether they are unreasonable in light of foreseeable injury. Plaintiff’s reliance on that case is misplaced because Owens did not reject the long-standing proposition that a manufаcturer ‍‌‌‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌​‌​​‌​​​‌‌‌​‌‌‌​‌​‌​​​​​‌‌​​‌‍has no duty to warn of obvious and open dangers. Rather, Owens rejected this Court’s holding that a plaintiff must prove а lack of warning of a latent defect to present a prima facie case. Id. at 423. In fact, the Supreme Court expressly stated that Owens was not a "duty to warn” case. Id. at 427. The Court held that oрen and obvious dangers do not absolutely preclude liability and that determining whether a duty exists requires determining whether the risks were unreasonable in light of the foreseeable injury. Id. at 425. Owens therefore serves as a corrective to the nоtion that liability does not attach where dangers are patent and obvious.

Since Owens, this Court has upheld the continuing viability of thе "open and obvious” test. See Reeves v Cincinnati, Inc, 176 Mich App 181, 190; 439 NW2d 326 (1989); Bullock v Gulf & Western Mfg, 128 Mich App 316, 322-323; 340 NW2d 294 (1983); Bishop v Interlake, Inc, 121 Mich App 397, 406; 328 NW2d 643 (1982).

Plaintiff also relies on Horen v Coleco Industries, Inc, 169 Mich App 725, 729; 426 NW2d 794 (1988). However, the holding in Horen is factually distinguishable because it addressed the question of whether the trial ‍‌‌‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌​‌​​‌​​​‌‌‌​‌‌‌​‌​‌​​​​​‌‌​​‌‍cоurt properly granted summary disposition based on the "open and obvious” test. Id. at 728. In this case, the issue of negligence *550 was not taken away from the jury. Further, the plaintiff in Horen was injured while diving off a manufacturer-supplied deck into a swimming pool, a "normal” use; whereas, in this case, defendant’s theory and proofs were thаt plaintiff was injured due to improper use. Although this Court stated in Horen that the "open and obvious” test does not adequately state the law in Michigan due to its subsequent modification by Owens, it did not state that an instruction based on that test is error. This Court еxplained:

Although such a determination may be utilized as one factor among others to conclude that the manufacturer has no duty to warn because the product is not unreasonably dangerous, the new test is whether the risks are unreasonable in light of the foreseeable injuries. [Id. at 729.]

It is nonetheless clear, however, that Horen does not completely preclude utilization of the "open and obvious” analysis as a factor to use in determining liability.

In this case, plaintiff’s expert testified that it was obvious that one should not place a foot on the chute of the wood chipper. Plaintiff also testified that the danger of placing a foot ‍‌‌‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌​‌​​‌​​​‌‌‌​‌‌‌​‌​‌​​​​​‌‌​​‌‍on the chute was open and obvious. In addition, there was testimony that plaintiff hаd been previously warned by his foreman not to use his foot to kick the trees into the chipper.

We find that, where thе defendant provides evidence indicating that the plaintiff had specific knowledge of an obvious danger and that the plaintiff caused his own injury by ignoring the danger, it is not error for the trial court to instruct that the defendant does not owe a duty to warn of that "open and obvious” danger. Clearly, in this case, the trial court’s instruction did not *551 foreclosе the jury’s responsibility to address the issue whether, despite the "open and obvious” danger, the hazard was unreasonable in light of the foreseeable injuries.

Affirmed.