Andrew Green, Individually and as Next Friend of Tammy K. Green, a Minor v. Volkswagen of America, Inc. , 485 F.2d 430 ( 1973 )

EDWARDS, Circuit Judge.

Plaintiff-appellant’s cause of action on behalf of his minor daughter was dismissed on motion for summary judgment by the United States District Court for the Western District of Michigan.

Appellant’s brief complaint stated that his daughter, Tammy, then 11 years old, had lost a finger when she was “passing the left rear body panel of said automobile, her right ring finger became caught in a body vent where a sharp concealed piece of metal severed her finger through the proximal phalanx.”

The complaint also alleged that defendant was the United States sales subsidiary for Volkswagen A. G. of Germany, engaged in distributing automobiles “in particular, a 1956 Volkswagen Bus, vehicle #180093,” and that “the said automobile was not merchantable and fit for the general purpose for which it was manufactured and sold, in that the automobile had been manufactured with dangerous and defective body vents.”

Defendant filed an answer which denied any defect in the vehicle and asserted that “plaintiff’s complaint fails to state a cause of action against this defendant.”

The relevant facts before the court were supplemented by plaintiff’s affidavit saying:

“NOW COMES Andrew Green, plaintiff in the instant action who says that the Volkswagen involved was parked three spaces back from the sidewalk in a parking lot adjacent to his home and had remained motionless in such position for about one month.

“Deponent further says that the left rear body vents of said Volkswagen were defective, hazardous and dangerous in that the edges of the openings were so pressed or formed that they had sharp knife-like cutting edges which condition was concealed from view.”

Tammy’s deposition had also been taken as to how the accident happened. It indicated that on the date in question she had been playing ball with her little brother on a parking lot next to her house where the Volkswagen bus was parked:

* * * -* * x-

“A. Well, I threw the ball to my little brother, and he went and ran and I tried to catch him, and I ran by the bus and I slipped and fell and it got caught in there.

* * -X- x- X x-

A. And he ran around the house, our neighbor’s house, and I went after him, and I ran by the bus and got my finger caught in the vent.

Q. Now you were running and you say you slipped and you fell? A. Yeah, after I got it caught in the vent.

Q. Well, did you slip and fall against the vent ?

A. No. I slipped right along the side of it, of the truck.

Q. All right, you were running, and you got near the truck?

A. Yeah.

Q. As you got near the truck, did you start to slip ?

A. No. That was after I got my finger caught in the vent.

Q. How did you come in contact with the truck? That is what I can’t quite figure out.

A. I don’t know.

Q. You mean you got your hand up against the truck some way or the bus in some way ?

A. Yeah.

Q. How did you do that? Was it because you were falling? Was that it?

A. No. I was just running by. I didn’t even start to fall until after my finger got caught in the vent.

Q. You caught your finger in the vent and then you started to fall?

A. Yeah.

Q. I see. Now looking at this picture, could you tell me in which one of those vents you caught your finger in? I know it might be hard for you to remember, but do you have any idea at all?

A. No.”

The District Judge in granting defendant’s motion for summary judgment held:

“The court concludes as a matter of law that plaintiff, as the facts reveal in this case, used¹ the Volkswagen in a manner unintended by the manufacturer. While the court recognizes that a product may have more than one use, and conceivably a Volkswagen bus, by its nature and physical makeup, offers several uses, plaintiff here did not use the Volkswagen bus in a manner which would entitle her to claim that the bus was therefore not reasonably fit for the purposes for which she used it.”

This action is within the federal court’s jurisdiction solely because of diversity of citizenship and, hence, we apply. Michigan law. In a series of cases starting in 1958, the Michigan Supreme Court abolished the defense of privity in products liability cases where the complainant relied upon an implied warranty. Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958); Mazoni v. Detroit Coca-Cola Bottling Co., 363 Mich. 235, 109 N.W.2d 918 (1961); Piercefield v. Remington Arms Co., 375 Mich. 85, 133 N.W.2d 129 (1965).

In the last case (involving a claim of defect in a shotgun cartridge), the Michigan Supreme Court made it clear that the Michigan concept of products liability extended not only to a subsequent purchaser of the alleged defective product, but also to an injured third party bystander:

Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873; Manzoni v. Detroit Coca-Cola Bottling Co., 363 Mich. 235, 109 N.W.2d 918; Barefield v. LaSalle Coca-Cola Bottling Co., 370 Mich. 1, 120 N.W.2d 786, and Hill v. Harbor Steel & Supply Corp., 374 Mich. 194, 132 N.W.2d 54, have put an end in Michigan to the defense of no privity, certainly so far as concerns an innocent bystander injured as this plaintiff pleads, and that a person thus injured should have a right of action against the manufacturer on the theory of breach of warranty as well as upon the theory of negligence. Piercefield v. Remington Arms, supra at 98, 133 N.W.2d at 135.

It is not beyond foreseeability for the distributor (and the manufacturer) to have known that this Volkswagen bus would on many occasions be used for parking where children were playing. See Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). Under Piercefield we have no doubt that defendant in this case did owe a duty not to sell a product which it knew (or should have known) to be defective so as to pose a hazard to a child who came in contact with it while playing in its vicinity.

The most succinct statement of Michigan’s products liability law is contained in the American Coupling ease:

The court instructed the jury as follows:

“To recover, the plaintiff, Mr. Heekel, must show * * * the following things. Number one, * * * that there was a defect in .the hose assembly when it left the manufacturing plant of the defendant.

“And he must also show that the defect was a proximate cause of the injury in this case. * * * ”

The substance of that charge was repeated a number of times in the judge’s instructions. It constitutes a correct and proper statement of the law with respect to liability for breach of implied warranty and what plaintiff must prove to be entitled to recover under that theory. Piercefield v. Remington Arms Company, Inc. (1965), 375 Mich. 85, 133 N.W.2d 129; Manzoni v. Detroit Coca-Cola Bottling Company (1961), 363 Mich. 235, 109 N.W.2d 918; Rex Paper Company v. Reichhold Chemicals, Inc. (W.D.Mich.1966), 252 F.Supp. 314; Barefield v. LaSalle Coca-Cola Bottling Company (1963), 370 Mich. 1, 120 N.W.2d 786. As defendant says in his brief, all of these cases stand for the proposition that there must be a defect attributable to the manufacturer and a causal relationship between that defect and the injury complained of in order for there to be recovery on implied warranty. Heckel v. American Coupling Corp., 384 Mich. 19, 21-22, 179 N.W.2d 381, 383 (1970).

Of course, the proof of “a defect” requires proof that the defect existed at the time the product left the possession of the manufacturer. It also requires proof that the nature of “the defect” was such that the manufacturer under the reasonable man standard could have foreseen that someone might be injured thereby.

These issues, however, are issues of fact and under Michigan law are for jury determination. Crowther v. Ross Chemical Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972); Garmo v. General Motors Corp., 45 Mich.App. 703, 207 N.W.2d 146 (1973). In the Ross Chemical case a father whose two daughters had been murdered by a glue sniffer brought suit against the manufacturer of the airplane glue involved. Plaintiff claimed the product was not safe for public use, asserting both design defect and failure to warn concerning the hazards of glue-sniffing. The Michigan Court of Appeals held that a motion for summary judgment had properly been denied and that the issue of expectability (foreseeability) of the use alleged was an issue of fact for the jury.

In our instant case likewise we think summary judgment is inappropriate. Whether Tammy’s “use” of this Volkswagen was expectable or foreseeable was a jury question under Michigan law. Clearly, as we have shown above, no chain of title or permission to use is required under Michigan law. In a diversity case we are required to follow the applicable state law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

The dissent implies that this opinion holds that under Michigan law a parked automobile is a dangerous instrumentality or that a distributor of an automobile is the insurer of the safety of all persons who may come in contact with it. Neither of these holdings is to be found in Michigan law nor in this opinion.

The actual issue in this case concerns whether or not under Michigan law plaintiff has a right to a jury trial. The dissent would deny that right. We believe, on the contrary, that under Michigan law plaintiff has the right to present evidence to a jury on the claims that Tammy’s injuries were (1) caused by a defect in the Volkswagen bus (2) which defendant knew or should have known existed at the time it put the bus in commerce (3) which defect defendant knew or should reasonably have known might cause the type of injury which Tammy suffered and (4) which was in fact a proximate cause of her injury. Under Michigan law all of these issues are jury issues unless there are no disputed facts or inferences.

The dissent’s primary reliance is upon the law of states other than Michigan. We are aware that this case might be decided differently under the law of other states. But Michigan has taken a strong position against disposing of negligence cases on motions for summary judgment.

Two authoritative commentators on Michigan law have expressed the matter thus:

In negligence cases, even though there may be no dispute as to the quantitative or physical facts, summary judgment will almost always be inappropriate because the qualitative issue of whether defendant exercised reasonable care will be in dispute and must be left for the jury, unless on the undisputed physical facts a judge would say that a directed verdict would be required — which is to say that there really is no negligence issue for the jury. In such cases summary judgment has been allowed in negligence cases and should be.

1 J. Honigman & C. Hawkins, Michigan Court Rules Annotated 360 (1962).

In one of the two Michigan cases relied upon by the dissent the opinion for the court said:

A reading of opinions of this Court written during the past 15 years may suggest that a majority of the Court as from time' to time constituted, has viewed with disfavor the granting by trial courts of summary judgments for defendants in negligence eases. In the instant case, however, not a controverted question of fact is presented by the pleadings which, if resolved in plaintiff’s favor, would entitle him to judgment against defendant.

Fisher v. Johnson Milk Co., Inc., 383 Mich. 158, 174 N.W.2d 752 (1970). In Miller v. Miller, 373 Mich. 519, 524, 129 N.W.2d 885, 887 (1964), the court said:

“As a general rule, it can not be doubted that the question of negligence is a question of fact and not of law”. Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99, 118.

It is because the question of negligence is a question of fact and not of law and because its existence depends upon conformance with or violation of standards of behavior peculiarly within the special province of a jury to determine, that the summary judgment procedures of GCR 1963, 117.-2(3), rarely will be applicable to a common-law negligence case. Exceptions, of course, may be found — such as where no duty of care can be proved. In such circumstances, assuming there “is no genuine issue as to any material fact” relevant to the existence of an asserted duty, the trial court may determine as a matter of law that no cause for action exists. But this is not such a case.

In Byrnes v. Economic Machinery Co., 41 Mich.App. 192, 201, 200 N.W.2d 104 (1972), the court made this comment on the question of foreseeable use or misuse:

A manufacturer has a duty to use reasonable care in designing his product to guard against an unreasonable and foreseeable risk. Gossett v. Chrysler Corp., 359 F.2d 84 (CA 6, 1966); Farr v. Wheeler Manufacturing Corp., 24 Mich.App. 379, 180 N.W.2d 311 (1970); Harper & James, The Law of Torts (1956), § 28.5, pp. 1543, 1545. This may even include misuse which may be reasonably anticipated. See Brown v. General Motors Corp., 355 F.2d 814, 820 (CA 4, 1966); Marker v. Universal Oil Products Co., 250 F.2d 603, 606 (CA 10, 1957). (Emphasis added).

In Beardsley v. R. J. Manning Co., 2 Mich.App. 172, 175, 139 N.W.2d 129, 130 (1966), the Michigan Court of Appeals reversed a summary judgment stating:

It is, of course, axiomatic that a summary judgment or decree will not be upheld where there are material issues of fact raised on the pleadings. Kaminski v. Standard Industrial Finance Co. (1949), 325 Mich. 364, 38 N.W.2d 870. Any inferences to be drawn from the underlying facts pleaded or contained in the counter affidavit must be viewed in the light most favorable to the party opposing the motion.

See also Sparks v. Luplow, 372 Mich. 198, 125 N.W.2d 304 (1963); Anderson v. Gene Deming Motor Sales, Inc., 371 Mich. 223, 123 N.W.2d 768 (1963); Tacie v. White Motor Co., 368 Mich. 521, 118 N.W.2d 479 (1962); Killen v. Benton, 1 Mich.App. 294, 136 N.W.2d 29 (1965).

The judgment of the District Court is vacated and the case is remanded for further proceedings.

1 . Defendant contends that plaintiff did not use the Volkswagen since the bus was parked. For the purposes of this motion, the court concludes, without deciding, that the bus was in fact “used” by plaintiff.