Thon v. Saginaw Paint Manufacturing Co. , 120 Mich. App. 745 ( 1982 )

120 Mich. App. 745 (1982) 327 N.W.2d 551

THON
v.
SAGINAW PAINT MANUFACTURING COMPANY

Docket No. 55263.

Michigan Court of Appeals.

Decided November 2, 1982.

Philo, Atkinson, Darling, Steinberg, Harper & Edwards (by Stanley L. White), for plaintiff.

Smith & Brooker, P.C. (by Michael J. Huffmann), for Saginaw Paint Manufacturing Company.

Hoffmann & Martin (by William C. Hoffmann), for Dow Corning Corporation.

Before: DANHOF, C.J., and J.H. GILLIS and M.R. KNOBLOCK,^[*] JJ.

DANHOF, C.J.

Plaintiffs appeal as of right from a judgment of no cause of action in favor of defendants following a jury trial and from the trial court's denial of their motion for a new trial.

Plaintiff Howard Thon was employed by Faulkner Construction Company in late 1973, during which time Faulkner was engaged in a renovation project for defendant Dow Corning Corporation. Plaintiffs alleged that while Mr. Thon was performing work at the Dow plant, he was injured when he inhaled fumes while mixing paint which was used in the project. The paint was manufactured by defendant Saginaw Paint Manufacturing Company. Plaintiffs' complaint alleged negligence against Dow and negligence and breach of warranty against Saginaw.

Plaintiffs first complain that the trial court reversibly erred by instructing the jury that it could consider Mr. Thon's comparative negligence in determining liability. In support of that position, plaintiffs rely on the Supreme Court's decisions in Funk v General Motors Corp, 392 Mich. 91; 220 NW2d 641 (1974), and Tulkku v Mackworth Rees Div of Avis Industries, Inc, 406 Mich. 615; 281 NW2d 291 (1979). In those cases, the Court held that the defense of contributory negligence does not apply where the claimed negligence relates to defendant's failure to provide adequate safety devices in the workplace. However, after the briefs were filed and after oral argument was heard, the Supreme Court announced its decision in Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich. 29; 323 NW2d 270 (1982). In Hardy, supra, the Supreme Court ruled that the defense of comparative negligence is available in those cases in which Funk and Tulkku formerly prohibited the defense of contributory negligence. Therefore, plaintiffs' claim must be rejected.

Plaintiffs next complain that the instructions on comparative negligence were unduly repetitive. We find this claim to be without merit. Although we agree that error may result where the instructions to the jury are unnecessarily repetitive and argumentative, Mack v Precast Industries, Inc, 369 Mich. 439; 120 NW2d 225 (1963), in view of the complexity of the issues involved and the fact that there was more than one defendant, we find that the instructions given in this case were necessary to give the jury a clear understanding of their duty in deciding the issues presented. Cartwright v Grand Trunk Western R Co, 288 Mich. 316, 321; 284 N.W. 727 (1939).

Plaintiffs also complain that the comparative negligence instructions were not modeled after the style of the Standard Jury Instructions as required by GCR 1963, 516.6(4). This claim is also meritless. At the time the trial took place in this matter, no Standard Jury Instruction had been adopted concerning comparative negligence. The instruction given by the trial court informed the jury that it was their duty to determine whether Mr. Thon failed to exercise the care which a reasonably prudent person would have exercised under the circumstances and, if so, whether his acts or omissions were a proximate cause of his injuries. The court also stated that a finding of negligence on the part of Mr. Thon did not bar plaintiffs' recovery. Finally, the court instructed the jury that, if they found that Mr. Thon was negligent, they were to determine the percentage of negligence attributable to Mr. Thon and to reduce recovery by that percentage. In our opinion, these instructions were in the style of the Standard Jury Instructions and were not argumentative. See SJI 10.02, 11.01.

Plaintiffs next complain that the trial court erred by refusing to rule, as a matter of law, that Dow exercised a sufficient degree of control over Faulkner so that liability could be imposed. We disagree. It is well established that an owner of land cannot be held liable for injuries to employees of a contractor to whom he has delegated the task of performing work on the property unless the owner retains control of the manner in which the work is performed, or unless the activity constitutes a nondelegable duty. Funk v General Motors Corp, supra, p 101; Warren v McLouth Steel Corp, 111 Mich. App. 496, 502; 314 NW2d 666 (1981). The issue of whether the owner has retained sufficient control so that an agency relationship can be said to exist is primarily a question of fact. Warren, supra; Caldwell v Cleveland-Cliffs Iron Co, 111 Mich. App. 721, 732; 315 NW2d 186 (1981). This is so even where a written agreement has been entered into which defines the relationship which exists between the parties. Caldwell, supra.

In the present case, the agreement entered into between the parties placed a sufficient degree of control on Dow so that a prima facie case of negligence on the part of Dow was established. However, since the agreement did not place responsibility on Dow to control the day-to-day operations of Faulkner, and since other evidence was presented on this issue which raised a question of fact concerning the degree of control which Dow exercised, the trial court was correct in submitting this issue to the jury.

Plaintiffs finally contend that the activity in which Mr. Thon was engaged was inherently dangerous and that, therefore, it constituted a nondelegable duty. They contend that because their expert testified that the work was inherently dangerous, and because that testimony was uncontroverted, the trial court erred in refusing to direct a verdict in favor of plaintiffs on that issue.

In Brown v Unit Products Corp, 105 Mich. App. 141, 150; 306 NW2d 425 (1981), the Court quoted from Dowell v General Telephone Co of Michigan, 85 Mich. App. 84, 91; 270 NW2d 711 (1978), in ruling:

"``According to 65 CJS, Negligence, § 66, p 944, fn 35.25: "The term ``inherently dangerous' means that type of danger which inheres in the instrumentality or condition itself at all times, thereby requiring special precautions to be taken with respect to it to prevent injury".

"``Where the activity being analyzed is "inherently dangerous" is thus a question of fact to be determined by the jury.'"

In the present case, Dr. Floyd Van Atta, plaintiffs' expert, testified that it was his opinion that the activity in which Mr. Thon was engaged "could be" classified as an inherently dangerous activity. Plaintiffs correctly point out that defendants' expert did not testify that the activity was not inherently dangerous. However, Dr. Van Atta's testimony was based upon a hypothetical set of circumstances posed by plaintiffs' attorney. Although the facts which served as the basis for the hypothetical question did have factual support in the form of testimony of other witnesses, that testimony was disputed. Furthermore, the testimony of Dr. Van Atta embraced the ultimate issue which was to be decided. Although the testimony of an expert is not objectionable merely because it embraces an ultimate issue, MRE 704, the jury is not bound by that testimony. See, e.g., Ruddock v Lodise, 413 Mich. 499, 504; 320 NW2d 663 (1982).

Therefore, it was for the jury to resolve the underlying factual dispute, and the trial court was correct in refusing plaintiffs' request.

Affirmed. Costs to defendants.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.