Maletich v. Zemaiduk

115 Mich. App. 206 (1982) 320 N.W.2d 72

MALETICH
v.
ZEMAIDUK

Docket No. 57232.

Michigan Court of Appeals.

Decided April 8, 1982.

MacRitchie & Welper, for plaintiff.

Loren & Shirk, for defendant.

Before: DANHOF, C.J., and M.F. CAVANAGH and D.F. WALSH, JJ.

PER CURIAM.

After trial of this negligence action by jury, plaintiff was found to have damages of $50,000, was found 50% comparatively negligent, and was awarded $25,000. The trial court denied defendants' motions for judgment notwithstanding the verdict and for a new trial. Defendants appeal as of right.

This action arose as a result of an electrical shock plaintiff received while using two microwave ovens supplied by defendants. The ovens were part of a concession stand being operated by the Hillsdale VFW Post during a weekend Fourth of July celebration at a local fairgrounds.

When the defendant Ellen Zemaiduk was bringing the second microwave oven to the fairgrounds, the oven's three-prong electrical plug was damaged. She attempted to find a suitable replacement plug, but ended up attaching a two-prong plug to the oven. At the fairgrounds, she received two shocks while demonstrating the use of the oven. Testimony at trial differed on whether she told the VFW personnel that use of the oven would be fine as long as they did not touch the metal parts of the oven.

One VFW member offered to replace the two-prong plug with a properly grounded three-prong plug. Shortly thereafter, the member was told that the fairground's policy prevented anyone but a licensed electrician from performing electrical work.

The plug on the oven was never replaced. The oven was left unplugged, but sat on a table inches apart from the other working oven.

The plaintiff was a VFW member and was scheduled to work the concession stand. Plaintiff was told prior to using the ovens that one oven had been emitting shocks. Nevertheless, plaintiff plugged both ovens in and used them all day without incident. The following day, plaintiff began using the ovens again. Subsequently, while touching both of the ovens, he received a shock. The instant suit followed.

Defendants argue that, if the microwave oven was defective, their duty to plaintiff required them to remedy the defect or to warn of its existence and that there was no duty to warn or protect anyone if the danger was obvious. Defendants rely on a products liability case, dealing with the duty of manufacturers in designing and constructing products, which held that a manufacturer has no duty to warn or protect against dangers obvious to all. Fisher v Johnson Milk Co, Inc, 383 Mich. 158, 160; 174 NW2d 752 (1970). The decision in Fisher was based on the leading New York case of Campo v Scofield, 301 NY 468; 95 NE2d 802 (1950), which was subsequently overruled in Micallef v Miehle Co, 39 NY2d 376; 384 NYS2d 115; 384 NE2d 571 (1976). Fisher remains good law, although it has been distinguished in many cases. Durkee v Cooper of Canada, Ltd, 99 Mich. App. 693, 698; 298 NW2d 620 (1980).

The Fisher decision contemplated obvious dangers in simple objects. See Coger v Mackinaw Products Co, 48 Mich. App. 113, 122; 210 NW2d 124 (1973). A microwave oven, dangerous due to the failure of the oven to be properly grounded, is not a simple object within the contemplation of Fisher. Thus, Fisher has no application to the case at bar.

In negligence cases the standard of care is to conform to the legal standard of reasonable conduct in light of the apparent risk. Moning v Alfono, 400 Mich. 425, 443; 254 NW2d 759 (1977). The necessity of greater or lesser care under given circumstances is a question for the trier of fact. Massey v Scripter, 401 Mich. 385, 391; 258 NW2d 44 (1977). Whether defendants' conduct failed to measure up to an acceptable standard under the circumstances of this case is a question for the jury. See Wamser v N J Westra & Sons, Inc, 9 Mich. App. 89, 93; 155 NW2d 871 (1967). Thus, the jury's determination that defendants' conduct was negligent in light of the apparent risk will stand.

Defendants argue also that the VFW's assumption of the duty to repair the microwave oven's plug was an intervening negligent act that should render defendants' original negligence too remote, as a matter of law, to be a proximate cause of plaintiff's injury. Defendants rely on Parks v Starks, 342 Mich. 443; 70 NW2d 805 (1955), in arguing that, once a third party has assumed a duty that would have averted an injury if performed, the original negligence of a defendant is too remote to be a proximate cause of a plaintiff's injury.

An intervening act, however, will not sever the connection between a defendant's negligence and a plaintiff's injury if such intervening act was reasonably foreseeable. Price v Manistique Area Public Schools, 54 Mich. App. 127, 132; 220 NW2d 325 (1974). 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 a trier of fact. See Raatikka v Olin Mathieson Chemical Corp, 8 Mich. App. 638, 642; 155 NW2d 205 (1967). The decision in Parks is not to the contrary.

In the instant case, the jury was instructed on proximate cause and intervening negligence. Whether the VFW's failure to fix the oven's plug was reasonably foreseeable by defendants is a question of fact. The issues of foreseeability, reasonableness, and proximate cause are left to the jury. See Samson v Saginaw Professional Building, Inc, 393 Mich. 393, 407; 224 NW2d 843 (1975). Thus, the jury's verdict on the issue of proximate cause will not be reversed.

Affirmed. Costs to appellee.