Johnson v. Purex Corp. , 128 Mich. App. 736 ( 1983 )

128 Mich. App. 736 (1983) 341 N.W.2d 198

JOHNSON
v.
PUREX CORPORATION

Docket No. 64217.

Michigan Court of Appeals.

Decided September 14, 1983.

Dice, Sweeney, Sullivan & Feikens (by Jack E. Vander Male and Kristine J. Galien), for plaintiffs.

Sullivan, Ward & Bone, P.C. (by Gerard J. Andree), for defendant.

Before: BRONSON, P.J., and T.M. BURNS and H.E. DEMING,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right from a directed jury verdict of no cause of action.

Plaintiff Jonathan Johnson's hand and arm were pulled through two rollers of a plastic extruding machine. Because of defendant's alleged alteration of a safety device, these rollers would only open up one-half inch. Since these rollers would not open to two and one-half inches as they were originally designed, Johnson's arm and hand had to be squeezed back out through the rollers, causing substantial injury. Plaintiffs then brought this suit alleging that defendant was negligent and breached implied warranties by altering the safety device to reduce the space between the rollers. After plaintiffs presented their evidence at trial, the judge directed a verdict for defendant without stating his reasons for doing so.

On appeal, plaintiffs first argue that the trial court improperly directed a verdict for defendant on the negligence count. Under the laws of this state, a seller of a used product owes a legal obligation to future and foreseeable users of the product to exercise the reasonable care required of a reasonably prudent seller under the existing circumstances. Blanchard v Monical Machinery Co, 84 Mich. App. 279, 283; 269 NW2d 564 (1978); Bevard v Ajax Mfg Co, 473 F Supp 35, 40 (ED Mich, 1979). The standard for reviewing a directed verdict for defendant was stated in Blanchard, supra, p 282:

"The standard of appellate review in measuring the granting of directed verdicts for defendants in product liability cases is whether, taking the evidence in a light favorable to plaintiff, a prima facie case of liability is established. If so, a motion for directed verdict should be denied. Only when all reasonable men would agree to facts which preclude liability, should a directed verdict be granted for defendant." (Footnote omitted.)

See also Ownes v Allis-Chalmers Corp, 414 Mich. 413; 326 NW2d 372 (1982).

At trial, plaintiffs produced evidence to show that when the defendant, the original owner of the machine, purchased it from the manufacturer, the pinch rollers were adjusted to have a two and one-half inch space between them when the safety mechanism was engaged. Plaintiffs also produced evidence that when Lapeer Plastics purchased the machine the rollers would only open to about three-quarters of an inch.^[1] This was approximately the same distance the rollers would open when the injury occurred.

In Bevard v Ajax Mfg, supra, the Court interpreting Michigan law stated: "[i]f we somehow create a zone of risk or danger, then we are obligated, in law, to all those whom we could or should foresee as entering into that zone". The ultimate question, therefore, is whether a seller of a machine who altered a safety device so that it violated the then current industry standards is liable for injuries caused to an employee of a subsequent owner of the machine. As stated in Blanchard, "[t]his question was not one for determination by the trial judge as a matter of law; on the contrary, it was a question for submission to the jury under a proper instruction". 84 Mich. App. 285. Therefore, the trial court improperly directed a verdict for defendant on the negligence count.

Plaintiffs also argue that the trial court improperly granted a directed verdict for defendant on the implied warranty claim. Defendant brought its motion for directed verdict relying on Bevard v Ajax, Mfg, supra. In Bevard, the Court held that the occasional seller of used machines "as is" is not bound by implied warranties that the machines are reasonably free from defects. In this case, however, viewing the evidence in a light most favorable toward plaintiffs, defendant in its maintenance of the machine altered a safety device rendering it inadequate. The inadequacy of a safety device is a design defect which may support a breach of warranty claim. Johnson v Chrysler Corp, 74 Mich. App. 532, 537; 254 NW2d 569 (1977), lv den 400 Mich. 861 (1977). An occasional seller of used machines who modifies a safety device so that the risk of injury is substantially increased should certainly be held to be in the same position as the manufacturer of an inadequate safety device. An implied warranty to this effect would not encourage economic waste as defendant argues. Imposing a duty upon the seller of used machines to maintain safety devices would help reduce the number of industrial accidents. The defendant essentially manufactured the defect in the safety device and sold it without returning it to its original condition. Accordingly, the defendant may be held liable for breach of common-law implied warranty. The trial court improperly granted a directed verdict on plaintiffs' warranty claim.

Reversed and remanded.

NOTES

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

[1] Lapeer Plastics was purchased by Johnson's employer.