JOHNSON
v.
CHRYSLER CORPORATION
Docket No. 27219.
Michigan Court of Appeals.
Decided March 30, 1977.McCroskey, Libner, VanLeuven, Kortering, Cochrane & Brock, for plaintiffs.
Hillman, Baxter & Hammond (by Joel E. Krissoff and Michael D. Wade), for defendant Chrysler Corporation.
Smith, Haughey, Rice & Roegge (by Lance R. Mather), for defendant Harvey Goldman & Company.
Before: BEASLEY, P.J., and R.B. BURNS and J.H. GILLIS, JJ.
J.H. GILLIS, J.
This is a product liability action. *535 On July 19, 1969, plaintiff, Marie Johnson, an employee of Holland Die Casting Company (hereinafter referred to as Holland), was injured while operating a power punch press. The press was manufactured by Johnson Machine and Press Corporation, a company no longer in business, and sold to Holland in 1955 by defendant, Harvey Goldman & Company (hereinafter referred to as Goldman). At the time of the sale Goldman was the exclusive distributor in Michigan of Johnson presses. At the time of the injury, the press was equipped with dies owned by defendant Chrysler Corporation (hereinafter referred to as Chrysler).
On April 20, 1970, plaintiffs filed a four-count complaint against defendants. Prior to trial, counts III (strict liability) and IV (fraud and deceit) were dismissed by the trial judge upon motion of defendants. A jury trial was conducted as to the remaining counts. At the close of plaintiffs' proofs the trial judge granted defendants' motions for directed verdicts. Plaintiffs appeal as of right, challenging the dismissal of the strict liability count and the granting of directed verdicts as to the remaining counts.
We find no error in the dismissal of the strict liability count. In Michigan, two theories of recovery are recognized in product liability cases; negligence and implied warranty. Strict liability has not been recognized as a third theory of recovery. If anything, the proofs that would be presented under a strict liability theory in a product case would overlap with the proofs that would be presented under an implied warranty theory. The addition of the third count adds only confusion, not substance. Dooms v Stewart Bolling & Co, 68 Mich. App. 5; 241 NW2d 738 (1976), Williams v The Detroit Edison Co, 63 Mich. App. 559; 234 NW2d 702 (1975), lv den, 395 Mich. 800 (1975), Rutherford *536 v Chrysler Motors Corp, 60 Mich. App. 392; 231 NW2d 413 (1975), Cova v Harley Davidson Motor Co, 26 Mich. App. 602; 182 NW2d 800 (1970).
We affirm the trial court's granting of a directed verdict in favor of defendant Chrysler, but reverse as to defendant Goldman. In reviewing the trial court in this situation, we have considered the proofs, as always, in a light most favorable to plaintiffs.
Plaintiffs proceeded against defendant Chrysler as owner of the dies, on two theories: negligent entrustment and breach of implied warranty. In support of their negligent entrustment theory, plaintiffs direct us to Fredericks v General Motors Corp, 48 Mich. App. 580; 211 NW2d 44 (1973), lv den, 390 Mich. 805 (1973). In Fredericks, a panel of our Court reversed the trial court's granting of a summary judgment motion and held that the plaintiff should be allowed to present proofs to show that the defendant knew that the die would be used in a negligent manner. In the present case, plaintiffs were allowed to present proofs. We have reviewed the transcript, and find no evidence that Chrysler knew or should have known of any unsafe practices or conditions at the Holland plant. Likewise, we find no evidence in the record to support recovery against Chrysler under an implied warranty theory. Chrysler had nothing to do with the design, manufacture, installation or maintenance of the dies in the instant case. In fact, Chrysler actually purchased the dies from Holland after approval of the parts produced from the dies. Ownership by Chrysler was obtained merely for the purpose of avoiding work stoppages possibly encountered by the parts suppliers. We are aware of no warranty theory which would extend liability to Chrysler as purchaser of the dies.
*537 We agree with plaintiffs that in granting defendant Goldman's motion for a directed verdict, the trial judge erroneously applied the Uniform Sales Act rather than the appropriate common-law theory of implied warranty. Contrary to Goldman's contention, we find that although this theory was not specifically pleaded, it was tried by consent, in that plaintiffs presented evidence relating to an implied warranty theory and defendant did not object, GCR 1963, 118.3, Webster v WXYZ, 59 Mich. App. 375; 229 NW2d 460 (1975), lv den, 395 Mich. 751 (1975). We also disagree with Goldman that a seller may not be held responsible for a defective product in a breach of warranty action. Bronson v J L Hudson Co, 376 Mich. 98; 135 NW2d 388 (1965), Piercefield v Remington Arms Co, Inc, 375 Mich. 85; 133 NW2d 129 (1965).
It is well settled, and we therefore cite no authority, that a prima facie product liability case consists of proof, 1) that the defendant has supplied a defective product, and 2) that this defect has caused injury to the plaintiff.
We find that in this case sufficient proof was presented by plaintiffs to support a product liability action against defendant Goldman and thus it was error for the trial judge to grant Goldman's motion for a directed verdict.
Basically, plaintiffs' claim is that the power press supplied by defendant Goldman was defective in that it was not equipped with adequate safety devices and that the failure to so provide was the cause of plaintiff Marie Johnson's injury.
The failure to provide or the inadequacy of safety devices has been recognized as a defect in the design of the product, the sale of which may thus support a breach of a warranty claim. Pippen v Denison Division of Abex Corp, 66 Mich App *538 664; 239 NW2d 704 (1976), Rutherford v Chrysler Motors Corp, supra, Snider v Bob Thibodeau Ford, Inc, 42 Mich. App. 708; 202 NW2d 727 (1972), lv den, 388 Mich. 812 (1972).
Although reasonableness standards, i.e., negligence-type analysis, are utilized in determining whether the failure to provide more effective safety equipment amounts to a defect, this analysis does not take the action out of a breach of warranty theory. See Smith v E R Squibb & Sons, Inc, 69 Mich. App. 375; 245 NW2d 52 (1976), Casey v Gifford Wood Co, 61 Mich. App. 208; 232 NW2d 360 (1975), lv den, 395 Mich. 810 (1975), Farr v Wheeler Manufacturing Corp, 24 Mich. App. 379; 180 NW2d 311 (1970), lv den, 385 Mich. 773 (1971).
After a thorough review of the record, we find that plaintiffs presented evidence, which, if believed by the jury, could constitute a prima facie case of a design defect in the power press and that this defect could have caused the alleged injury. Accordingly, we reverse the directed verdict as to defendant Goldman and remand for trial.
Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. Plaintiffs shall pay costs to defendant Chrysler; defendant Goldman shall pay costs to plaintiffs.
R.B. BURNS, J., concurred.
BEASLEY, P.J. (concurring in part; dissenting in part).
I concur with the majority in affirming the granting of a directed verdict in favor of defendant Chrysler Corporation, but must respectfully dissent from that part of the majority's decision which reverses the directed verdict for defendant Harvey Goldman & Company.
The common law implied warranty basis upon *539 which the majority predicate liability was not pleaded nor was any amendment to the pleadings ever sought asserting such a claim. I would not agree that the case was tried by consent on an issue of what implied warranties defendant Goldman owed plaintiff in 1955. Therefore, I reject the proposition that plaintiff made a prima facie case against defendant Goldman. I would affirm the granting of a directed verdict in favor of defendant Goldman.