Scott v. Allen Bradley Co. ( 1984 )

139 Mich. App. 665 (1984) 362 N.W.2d 734

SCOTT
v.
ALLEN BRADLEY COMPANY

Docket No. 70520.

Michigan Court of Appeals.

Decided October 4, 1984.

Goldsmith, Yaker & Goldsmith (by Daniel S. Goldsmith), and Reginald S. Johnson, for plaintiff.

Harvey, Kruse, Westen & Milan, P.C. (by Dennis M. Goebel and Paul S. Koczkur), for defendant.

Before: SHEPHERD, P.J., and BEASLEY and W.J. CAPRATHE,^[*] JJ.

PER CURIAM.

Defendant, Allen Bradley Company, appeals as of right from a judgment in the amount of $1,195,171, including interest, following a five-week bench trial. Plaintiff Allan Scott sued for personal injuries under theories of products liability and negligent design of a punch press switch. Plaintiff Aetna Insurance Company is the workers' compensation carrier for Scott's employer, G & L Industries, and intervened on Scott's behalf.

On July 30, 1975, Scott was operating a Sheridan die press for G & L. His job involved placing pieces of cardboard stock into the press's opening and depressing two palm buttons which activated the press and cut the stock into desired shapes. The press's two operating modes were controlled by a switch allegedly manufactured by Allen Bradley. With the switch at the "H" or "hand" position, the press only cycled once. In the "A" or "automatic" position, the press cycled continuously. The switch was enclosed in a control box located to the immediate left of the die opening.

Approximately 30 minutes before the accident, Scott accidently bumped the switch to the automatic position while loading stock into the press. Scott informed his supervisor, who told Scott that the same problem had occurred two weeks earlier. The supervisor told Scott to either tape the switch down or move his stock away from the control box.

Scott returned to his work. The stock hit the switch again, thereby activating the press's automatic mode. Unaware of this, Scott placed his hands into the press to remove some stock. His entire right hand and most of his left hand were severed in the accident.

The trial court set damages at $975,000, reduced by 20% based on Scott's comparative negligence, for a total award of $780,000, plus costs and interest. Although the trial court was confronted with conflicting evidence regarding the factual issues in this case, we are not left with a definite and firm conviction that the court's findings were clearly erroneous. GCR 1963, 517.1; Precopio v City of Detroit, 415 Mich. 457, 465-466; 330 NW2d 802 (1982).

Allen Bradley first argues that the trial court erred in finding that the switch was modified while it was in Allen Bradley's exclusive control. After reviewing the record, we cannot say that the trial court's finding was clearly erroneous. Furthermore, the trial court's opinion expressly states that this finding was not the determining factor in deciding the case. Therefore, even if erroneous, this finding was not prejudicial to the defendant.

Next, defendant argues that the trial court erred in finding that Allen Bradley manufactured the switches. We disagree. Scott's expert testified that the switch was made by Allen Bradley. After the accident, an electrician removed the switch and placed it on a wall control box. It remained there until Allen Bradley representatives removed it for photographs in 1978. These photographs clearly showed the initials "AB" appearing on the switch contact blocks. The operator portion of the switch had no specific markings which would conclusively link it to any manufacturer. However, an Allen Bradley sales catalog depicts an operator switch with a similar raised black arrow. Under these circumstances, we reject the defendant's argument that the trial court's finding was based on mere speculation. See Parsonson v Construction Equipment Co, 386 Mich. 61, 77; 191 NW2d 465 (1971). The record contains sufficient evidence to conclude that the switch was manufactured by Allen Bradley, and therefore the court's finding was not clearly erroneous.

Allen Bradley next argues that the trial court erred in imposing liability based on Allen Bradley's failure to guard the switch. In reality, the trial judge imposed liability on alternative theories. His opinion was based on the defendant's duty to issue warnings with respect to appropriate usage or Allen Bradley's failure to supply an appropriate safety device (switch guard).

A product may be rendered unreasonably dangerous by the omission of a safety device. Furthermore, where an injury is reasonably foreseeable, the trier of fact must determine whether a safety device should have been put on the product by the manufacturer. See Coger v Mackinaw Products Co, 48 Mich. App. 113, 122; 210 NW2d 124 (1973). In the case at bar, the trial judge found that the risk of injury to Scott was unreasonable and reasonably foreseeable by Allen Bradley. The court also found that Allen Bradley had a duty to guard the switch, and that the failure to guard the switch was a proximate cause of Scott's injuries.

Allen Bradley cites Jordan v Whiting Corp (On Rehearing), 49 Mich. App. 481; 212 NW2d 324 (1973), rev'd in part on other grounds 396 Mich. 145; 240 NW2d 468 (1976), in support of its argument that it met its burden of furnishing a product safe for its reasonably foreseeable uses. The record in Jordan, however, did not show that the manufacturer knew how the component would ultimately be integrated. See 49 Mich. App. 486. Here, in contrast, the trial court ruled as a matter of fact that Allen Bradley knew or should have known that the switch would be used as a power press mode selector. We believe that sufficient evidence was introduced to raise a question as to the foreseeability of the particular injury and the reasonableness of Allen Bradley's conduct in relation to it. Allen Bradley argues that there was no showing that a defect existed at the time the switch left the manufacturer in 1955. However, the defect involved at the time was the absence of any safety device or guard. This defect had nothing to do with the internal operation of the switch or the fact that it might wear out. In short, we agree with the trial court's imposition of liability based upon the finding that Allen Bradley did not produce a product which was safe for its foreseeable uses. The fact that liability was properly imposed on this basis makes it unnecessary to address the trial court's alternative basis of liability.

Allen Bradley next contends that Scott failed to present sufficient evidence to establish defective design according to Owens v Allis-Chalmers Corp, 414 Mich. 413; 326 NW2d 372 (1982). Owens established that the plaintiff must present evidence concerning the magnitude of the risks involved and the reasonableness of any proposed alternative design. Owens, supra, p 432. Allen Bradley's expert testified that the company began producing switch guards sometime after 1955. Two guards were introduced at trial which cost approximately $1 each to produce. It was obvious that the proposed guards would not affect the worker's ability to perform his job. Allen Bradley's expert stated that the guards were developed to avoid accidental activation. Therefore, it is apparent that Allen Bradley was aware of the magnitude of the risks involved. Under the circumstances, we find that Scott introduced sufficient evidence to satisfy Owens.

Allen Bradley also argues that the actions of Scott and G & L were intervening, superseding causes. The defendant points to G & L's removal of a point-of-operation guard, and to Scott's admitted knowledge that the switch could accidentally slip into the automatic mode.

Generally, an intervening act will not sever the connection between a defendant's negligence and a plaintiff's injury if such intervening act was reasonably foreseeable. If there might be a reasonable difference of opinion as to the foreseeability of a particular risk, the reasonableness of a defendant's conduct with respect to it, or the character of the intervening cause, the issue should be resolved by the trier of fact. See Maletich v Zemaiduk, 115 Mich. App. 206, 210; 320 NW2d 72 (1982), and cases cited therein. The trial court determined as a matter of fact that Scott's actions were reasonably foreseeable. The court also found that Allen Bradley's omissions were a proximate cause of the injuries. These findings were not clearly erroneous. Allen Bradley knew or should have known that its switches would be used as mode selectors and that the switches would be placed near points of operation. The trial court did not err in concluding that Scott's intervening act was reasonably foreseeable.

On a related issue, we are not convinced that the damage award was "grossly excessive". The clearly erroneous standard of review applies to a damage award rendered in a bench trial. Precopio, supra, p 467. However, a bench award is subject to a finer "judicial sieve" than a jury award. Id.; Schneider v Pomerville, 348 Mich. 49, 54; 81 NW2d 405 (1957). Even using this "finer mesh" on review, the ultimate award was not out of line with similar injuries. See Burnett v Mackworth G Rees, Inc, 109 Mich. App. 547; 311 NW2d 417 (1981), where this Court upheld a jury award of $1.5 million for the loss of four fingers in a die press accident. See also Anno: Excessiveness or adequacy of damages awarded for injuries to arms and hands, 12 ALR4th 96, pp 191-192.

Rather than focusing on the amount of damages, Allen Bradley attacks the percentage of comparative negligence attributed to Scott. The record indicates that Scott was aware of the danger of accidental activation of the switch, and that Scott decided to move his stock rather than tape the switch. However, there is no magical formula for apportioning negligence. In this case, we do not find that the trial court's finding was clearly erroneous.

The remaining issue involves the calculation of interest on the judgment. The trial court calculated interest at 6% from the date of filing the complaint to June 1, 1980, and 12% compounded annually thereafter on the damage amount plus the accrued interest up to June 1, 1980. Allen Bradley now argues that the 12% should be compounded only on the original judgment amount rather than on the balance owing as of June 1, 1980.

MCL 600.6013(2); MSA 27A.6013(2) reads:

"For complaints filed before June 1, 1980, in an action involving other than a written instrument having a rate of interest exceeding 6% per year, the interest on the judgment shall be calculated from the date of filing the complaint to June 1, 1980 at the rate of 6% per year and on and after June 1, 1980 to the date of satisfaction of the judgment at the rate of 12% per year compounded annually."

This Court interpreted this statute in Gage v Ford Motor Co, 133 Mich. App. 366, 374; 350 NW2d 257 (1984), as follows:

"The statutory language reasonably lends itself to the conclusion that the 12% interest rate applies to the amount of the judgment, plus interest accrued as of June 1, 1980, in that the annual compounding begins `on and after June 1, 1980'. Since compound interest actually represents interest upon interest, the new interest rate should apply to any interest that has accrued as of the date that the compounding begins.

"Based on the foregoing, this Court concludes that the 12% interest rate commencing June 1, 1980, applies to the amount of judgment combined with interest which has accrued to that date at the 6% simple interest rate."

We agree with the Gage interpretation and affirm the trial court's interest calculation on that basis.

Affirmed.

NOTES

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