ANN AYRE V ATTWOOD CORP
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STATE OF MICHIGAN
COURT OF APPEALS
ANN AYRE, as Personal Representative of the
Estate of JAMES O. AYRE, Deceased;
ELIZABETH SWIFT, as Personal Representative
of the Estate of HOWARD G. SWIFT, III,
Deceased; and SUSANNE BURNSIDE, as
Personal Representative of the Estates of
RODNEY G. BURNSIDE, Deceased, and
BRADLEY H. BURNSIDE, Deceased,
UNPUBLISHED
March 16, 2001
Plaintiffs-Appellants/Cross-
Appellees,
Nos. 217911, 218064
Kent Circuit Court
LC No. 96-06527-NP
v
ATTWOOD CORPORATION,
Defendant-Appellee/Cross-
Appellant.
Before: O’Connell, P.J., and White and Saad, JJ.
PER CURIAM.
These consolidated wrongful death products liability actions arose from the tragic deaths
by hypothermia and drowning of James Ayre, Howard Swift, Rodney Burnside, and Burnside’s
fourteen-year-old son, Bradley, on November 11, 1995, after their “Outlaw 18” duck hunting
boat capsized on Saginaw Bay.
On the morning trial began in September 1998, former defendant Outlaw Marine, Inc.,
the builder and seller of the Outlaw 18, settled with the estates. The case was tried against
defendant Attwood, the manufacturer of a fuel-system component Outlaw had purchased through
a distributor and installed in Ayre’s Outlaw 18. Plaintiffs contended that this component, a
vented fuel fill (VFF), was defective, and that Attwood was negligent in failing to warn of the
component’s dangerous characteristics. After a thirty-day trial, the jury returned a verdict of no
cause of action, finding no negligence and no breach of implied warranty. The trial court denied
plaintiffs’ motion for new trial.
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Plaintiffs Ayre and Swift estates appealed, and defendant cross-appealed (Docket No.
218064). Plaintiff Burnside estates, separately represented, also appealed (Docket No. 217911).
This Court consolidated the cases. The two sets of plaintiffs raise essentially the same issues on
appeal, asserting instructional error in connection with a sophisticated user instruction,
evidentiary error in excluding product recall evidence, and that the verdict was against the great
weight of the evidence. Defendant’s cross-appeal challenges the original trial judge’s denial of
its pre-trial motion to file a cross-complaint, the trial court’s denial of its motion for directed
verdict, the order denying argument on the effect of lack of income tax on any award, and the
court’s approval of the settlement between the Swift and Burnside estates and the Ayre estate.
We affirm the trial court’s denial of plaintiffs’ motion for new trial. Defendant’s cross-appeal is
therefore moot.
I
Plaintiffs argue that the trial court erred by charging the jury with a “sophisticated user”
instruction which inaccurately stated the law and improperly delegated to the jury the question
whether a duty existed, when there was no factual support for the instruction, and where the court
did not advise plaintiffs’ attorneys that it would read the instruction until after closing arguments,
contrary to MCR 2.516(A)(4).
Jury instructions are reviewed in their entirety to determine whether they “adequately
inform the jury on the applicable law reflecting and reflected by the various evidentiary claims in
the particular case.” Riddle v McLouth Steel Products, 440 Mich 85, 101; 485 NW2d 676
(1992). When a party requests an instruction that is not covered by the standard jury instructions,
it is within the trial court’s discretion to give additional concise, understandable, conversational,
and nonargumentative instructions, provided they are applicable and accurately state the law.
Cipri v Bellingham Frozen Foods, Inc, 235 Mich App 1, 22; 596 NW2d 620 (1999); see also
MCR 2.516(D)(4). If the evidence does not support a jury finding under the proposed
instruction, it is properly refused. Cipri, supra at 18-19 (sophisticated user instruction properly
refused where not supported by the evidence).
A
MCR 2.516(A)(4) provides that “[t]he court shall inform the attorneys of its proposed
action on the requests [for jury instructions] before their arguments to the jury.”
There is no standard jury instruction addressing a failure to warn theory. Although
plaintiffs timely submitted other proposed jury instructions pursuant to the trial court’s
scheduling order, and indicated various times during trial that they would request a failure to
warn instruction, they did not submit a proposed failure to warn instruction until the evening
after closing arguments. In response, defendant requested the “sophisticated user” language
plaintiffs challenge on appeal (italicized below). The trial court instructed the jury regarding
failure to warn as follows:
Now, relative to the product again, the defendant had a duty to use reasonable care
at the time it designed the vented deck fill, so as to eliminate unreasonable risks of
harm or injury which were reasonably foreseeable.
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The defendant also had a duty to use reasonable care to communicate information
that is essential to the safe use of the product. Now, this duty to warn and instruct
extends to intended uses of a product and associated with the product – I should
say, with the foreseeable misuse of a product.
However, a component supplier does not have a duty to warn or instruct a
company that knew or should have known of the product’s characteristics.
After the jury was instructed, plaintiffs’ counsel stated their objections on the record, including
that they had not had the opportunity to argue the sophisticated user issue fully to the jury
because defendant requested the sophisticated user instruction after closing arguments.1
1
Plaintiffs’ counsel argued:
MR. KELL [counsel for Ayre and Swift estates]: Your Honor, I feel constrained
to join in the position of Mr. Hahn [counsel for Burnside estates] as expressed in
chambers, I simply – I understand exactly what the Court’s feeling is and so on,
but I think as a matter of – I feel constrained to do that. Therefore, I do have an
objection to the sophisticated user instruction, and the basis for the objection is I
didn’t have the opportunity to argue that fully to the jury.
Secondly, I believe under the circumstances of this case, that the instruction
should not have been given. Thirdly, if the instruction should have been given or
an instruction like that were given, it should have been accompanied by additional
– an additional instruction, providing guidance to the jury relative to a
determination of whether or not Outlaw Marine, under the particular
circumstances of this case, was in fact – could be deemed a sophisticated user or
an entity which knew or should have known of the hazard to be warned of and
associated with the product.
I understand exactly what the Court has said in chambers and I respect that, but I
feel constrained to preserve the objection.
THE COURT: Okay, I have no problem with that.
MR. KELL: Thank you.
THE COURT: I also, I gave some options that you indicated in chambers, just so
the record is clear, you would go along with this instruction.
MR. KELL: Absolutely.
THE COURT: If I – based on the options I gave, but I’m not holding you to that.
I don’t have any problem with what you are saying.
(continued…)
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(…continued)
MR. KELL: Yes, sir. I just want to say that I did in fact indicate in chambers to
you, before you gave the instruction to the jury, that I was not going to object to
it, and that is correct, that’s the honest position.
THE COURT: Okay, thank you very much. Mr. Hahn?
MR. HAHN: Yes, your Honor, in regards to the sophisticated user instruction, I’d
indicated in chambers that while given the same option, I indicated that I didn’t
think the sophisticated user instruction should be given and we’d be placing the
objection on it, and I, quite frankly, all due respect, not going along with the
option that was provided.
In particular, your Honor, in regards to it, we have had numerous discussions
concerning instructions before closing argument where parties indicated what they
wanted. In particular, we indicated that one of the instructions we wanted was a
failure to warn instruction. The directive was, all right – and again, this is all
before closing argument. The directive was that’s fine, write one up, give it to
Mr. Steel [defendant’s counsel], see if we can agree on something.
Following, at that time, your Honor, there was absolutely no request made by Mr.
Steel of a sophisticated user instruction, let alone, obviously, since there was no
request for it, we weren’t provided with one at that point, either. We then, your
Honor, came out and argued the case. I specifically did not, in my closing
argument, address the sophisticated user issue.
Following that, and following the close of all argument in the matter, Mr. Steel
then made the request for the sophisticated user instruction. I feel, your Honor,
that I was sandbagged in it, that had he made the request before closing, and the
Court then could have said, “Yes, I’m going to give it. Mr. Steel give us some
language on it a later time,” I then would have come out and argued in closing
and addressed that very topic.
Because there was no request made, and it was made only after all arguments had
been completed, I obviously did not have the opportunity to address it, which I
would have.
***
[MR. STEEL:] As far as the sophisticated user, so-called sophisticated user
instruction, of course, those word were not used, but I know what counsel is
talking about. We were talking about jury instructions, the Court asked for
proposed instructions, and during all of the conversations with the Court the
plaintiffs never submitted a proposed instruction on failure to warn. That was
given to me last night, after court hours, by way of fax. When I got that, in
(continued…)
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(…continued)
response to that, I faxed –although I accept plaintiffs’ word that they didn’t
receive it – a very short instruction, essentially, which the Court incorporated,
and I expect in the spirit of compromise, the Court also added to the failure to
warn instruction as requested by the plaintiff.
I don’t feel that I did anything that would sandbag the other party in my
sophisticated user request, because I never received their failure to warn request
until last night, and mine was in response to it.
***
MR. HAHN: Your Honor, one other thing, if I could reply ever so briefly on the
sophisticated user instruction. I want to be very clear, while Mr. Steel said he did
not see our failure to warn instruction until last night, and that is in fact true, he
knew before he argued that it was coming. He knew before he argued that it was
going to be given, and he in fact argued on that topic. We did not know in
advance that the sophisticated user instruction was coming, we did not argue the
sophisticated user issue. I think there’s a big difference, and I want to make sure
the record is clear.
THE COURT: All right, thank you. I want to amplify the record a little bit in that
regard, also. The pretrial order in this matter required that the proposed jury
instructions be submitted to the Court prior to the beginning of trial. We did
receive from the plaintiff, and in fact I’ve used them extensively today in
instructing the jury, their requested instructions. Specifically, their requested
instructions did not include an instruction on duty to warn.
At some point quite some time ago in one of our conferences in chambers, . . . one
of the counsel for two of the plaintiffs here, co-counsel with Mr. Kell, indicated
their desire to have added an instruction on duty to warn. That’s when the Court
was first apprised of this desire. I indicated fine, and I invited counsel to put
together an instruction and get it to the Court.
A couple weeks ago, or week ago or something, we sat down preliminarily and
went over instructions, and I think prior to that time, but at least at that time when
the issue was brought up, I said “Please get us that instruction.” I can remember
a side-bar over here during the course of the trial where I reminded counsel
again that I did not have this instruction on duty to warn. This case has been
going on since the beginning of September, and I’m not being critical, I really am
not here, because I think counsel on both sides have done a fine job, all five of the
attorneys involved here.
But the bottom line is, I didn’t get this duty to instruct – duty to warn, we went
into chambers yesterday afternoon after we finished closing arguments again and
(continued…)
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(…continued)
discussed it. It was indicated that one would be faxed over to Mr. Steel that night.
Mr. Steel informed me in chambers when we were in there together that when he
received that, he quickly wrote out one and requested the addition of a
sophisticated user portion of that, and faxed it back. For whatever reasons, I guess
plaintiffs’ counsel have not, did not receive that or did not see it or whatever, but I
believe in good faith, and I have no reason to question that that in fact happened.
Sophisticated user instruction, perhaps something that should have been
anticipated and provided earlier by Mr. Steel, but I do think it really was – is
responsive – it’s a responsive type of instruction. There was never any initial
request to the Court . . . to instruct by the plaintiff, didn’t see one until, frankly,
last night, Court didn’t see it until this morning on the duty to warn, and I think
sophisticated user language was understandable and appropriate, and I agree that
the counsel didn’t have this prior to their argument, but I don’t consider that the
Court’s fault.
I would have delayed argument, we talked about that a little bit on the record, I
believe, about these instructions, and it was indicated by both sides that they were
prepared to go. And I realize what Mr. Hahn is saying, that they might not have
anticipated this. It seems to me that if I were to give a duty to warn, this is not to
be unanticipated, that this level of sophistication of Outlaw has been at issue.
There wouldn’t be any need for that instruction if we didn’t have a duty to warn
instruction. And while I think the plaintiffs have done an exemplary job, as has
defense counsel, on this one issue there’s been plenty of time to get this submitted,
and I feel like I’m kind of pressed now, the day before Thanksgiving, when we’ve
been going six weeks full trial time and three months of actual time , to sit back
there and have to try to phrase something, and go back and forth and argue, where
we spend a lot of time while the jury is sitting back there doing nothing, and the
holiday coming. . .
So I think that plaintiffs had plenty of opportunity to prepare and submit an
instruction. I think if they had done so, we could have addressed this issue earlier.
I recognize the fact that regardless of what the plaintiffs do and regardless of what
the defense does, it’s the Court’s obligation to instruct fairly and accurately. So,
for the record, I recognize that fact. But I’ve tried to do that. I’ve tried to do that
on rather short notice here at the end, with relatively little advance notice of what
the parties actually wanted.
. . . . And further, when I agreed to put in the sophisticated user instruction, I
further put in some additional language at the request of the plaintiffs about
misuse, foreseeable misuse, and so forth. So I added language that the plaintiffs
didn’t have in their original one, and I’ve tried to be fair to both sides in that
regard. [Emphasis added.]
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Under the circumstances presented here, particularly that plaintiffs failed to submit a duty
to warn instruction until after closing arguments, plaintiffs cannot be heard to allege error under
MCR 2.516(A)(4). See Dean & Longhofer, Michigan Court Rules Practice, § 2516.3, p 238
(noting that “[i]f requests [for jury instructions] are timely submitted, the court must advise the
parties as to its proposed action on the requests prior to closing arguments.” Emphasis added.).
Plaintiffs bear responsibility for the timing of the instruction.
The record does not support that plaintiffs lacked opportunity to fully address the
sophisticated user defense in closing arguments. Nor does the record support the Ayre and Swift
estates’ assertion that after no evidence was elicited that either plaintiffs’ decedents or Outlaw
were sophisticated users, plaintiffs’ counsel justifiably concluded that Attwood had abandoned
the sophisticated user defense in favor of a proximate-causation defense.
Shortly before trial, defendant filed a motion for summary disposition. Defendant briefed
and orally argued that it was entitled to rely on Outlaw’s sophistication. Plaintiffs’ brief in
response to Attwood’s motion briefed the sophisticated user issue. Defendant’s brief in reply to
plaintiffs’ response to the motion for summary disposition further argued the issue. The trial
court denied defendant’s motion because it was filed fourteen months after the dispositive
motion cut-off date. Defendant asserted the sophisticated user defense in opening statement, and
argued it again in its motion for directed verdict, made after plaintiffs’ proofs were in, which the
trial court denied on the basis that a question of fact remained on that issue.
Plaintiffs’ counsel’s cross-examination of Clifton Ratza, Attwood’s Vice President of
Engineering and one of defendant’s key witnesses, included substantial questioning regarding
whether Attwood thought it necessary to provide installation guidelines to “sophisticated original
equipment manufacturers,” and to “smaller” manufacturers like Outlaw. Plaintiffs’ counsel’s
closing arguments included that Outlaw Marine and Larry Scott, one of its manufacturer’s
representatives, did not know, and should not have been expected to know of the product’s
dangerous characteristics:
This fuel fill and the hazardous, the dangerous characteristics of this fill to ingest
water, even though it supposedly resists the ingestion of water, fooled Mr. Scott
[manufacturer’s representative for Attwood], and I say through no fault of Mr.
Scott’s own, he hadn’t been warned, he hadn’t been trained, he’d received no
instructions about it, and it fooled Mr. Scott, he didn’t realize the hazard.
It fooled Mr. Cripe [owner of Outlaw Marine]. Mr. Cripe didn’t recognize the
hazard. . . .
***
. . . . Both of these individuals were unaware of the hazardous nature of this
product. Both of these individuals, despite their best intentions, were fooled by
this product.
***
-7-
Let’s look at the instructions [for installing the vented fuel fill]. Mr. Ratza told
you that instructions were not necessary. Not necessary. Necessary or not, they
have instructions. One instruction for every 48 fills. Is that responsible corporate
behavior, ladies and gentlemen? They know that these fuel fills are going out not
only to the . . . big boat manufacturers, but also to the smaller people, the smaller
manufacturers, the people that maybe only do one, two, or three boats a year, who
don’t have the same skilled team of engineers available that the larger
manufacturers do.
***
Let’s talk about warnings for just a moment. What are we being told? You saw
the catalog, you have seen the vented fuel fill. The position of the defendant in
this case apparently is, is that the feature which allows the water to flow into the
gas tank is so obvious that no one needs a warning. Instructions aren’t
necessary. Indeed, instructions are superfluous. . . .
The problem with the defendant’s case is that it is based on . . . arrogance. I do
not dispute that Attwood is a very intelligent corporation filled with very, very
intelligent people. But there is room in the world for people that are less
fortunate, there is room for small businesses in this world that do not have the
same resources that the Attwood company has. And these are the people that need
the warnings. These are the people that need the instructions. [Emphasis added.]
Plaintiffs’ counsel for the Burnside estates’ closing argument included:
You know, the people that knew the most about this product [at Attwood] thought
the public should have been alerted about it . . . . But the vice-presidents won’t let
‘em.
You know who else tells us that they should have said something? Good oldfashioned common sense, and common decency. If it’s your product and you
know something about it, that the others don’t, you share with them.
***
. . . . But what they want to do is they want to say to you, “We don’t tell people
how to build their boats, so we can’t tell them where to put products.” I agree,
they shouldn’t. But they can tell them what not to do with it, and they can do that
without the fear of a lawsuit. All they had to say was, “Mount above the rub rail
only.”
***
. . . . what does Attwood do when they come in here? They come in and tell you,
“Well, you know, we only sell, sell ‘em in bulk, we only sell ‘em to OEMs. So,
you know, you really don’t need – they know what they are doing.” Back to why
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he had it in the first place, if they know how to do it. But you know what else?
They don’t just sell to OEMs. Mr. Ratza testified, “We also sell ‘em to
distributors. We also know that they go to marinas. We also know that an
individual can buy one . . . from a marina, and we know that it’s, under that
scenario, it’s not likely they are gonna [sic] get the instruction. [Emphasis added.]
After defendant’s closing argument, plaintiffs Ayre and Swift estates’ counsel argued on
rebuttal:
Mr. Steel has talked a lot today about Attwood’s responsibility to warn. He says
they don’t have a responsibility to warn, and one of the main reasons for that is
that boat makers know. They already know that the vented fuel fill leaks,
shouldn’t be submerged, they already know how to install it, so they don’t need
instructions for installing it.
The major gap that we have had in this three-month trial, though, is that not one
boat maker has come in to tell you that. Not one. Don’t you know if that were
true, we would have had a boat maker come in and say it? . . . . The only boat
maker that we’ve had in here to testify has been Mr. Cripe. And Mr. Cripe said he
didn’t know. . . .
Mr. Steel also told us that Attwood’s not responsible, Mr. Cripe is responsible,
because, two reasons. Mr. Cripe violated NMMA regulations and Mr. Cripe
already knew that the thing leaked . . . .
***
Jim Cripe did not know that the vented fuel fill wasn’t watertight. . . .
This extensive treatment of the issue of Outlaw’s sophistication by plaintiffs at trial
undermines their arguments that they were prejudiced by the timing of the sophisticated user
instruction or that they were unable to adequately address the defense in closing arguments.
B
The trial court instructed the jury:
Negligence is the failure to use ordinary care. Ordinary care means the care that a
reasonably careful person or entity or corporation would use. Therefore, by
negligence, I mean the failure to do something that a reasonably careful person or
entity or corporation would do, or the doing of something that a reasonably careful
person or entity or corporation would not do, under the circumstances that you
find existed in this case.
Now, ladies and gentlemen, the law does not say what a reasonably careful person
or entity or corporation, using ordinary care, would or would not do under the
circumstances. That is for you to decide.
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* * *
And it was the duty of the defendant, in connection with this occurrence, to use
ordinary care for the safety of the decedents.
**
Now, Ladies and gentlemen, when I use the words “proximate cause,” I mean,
first, that the negligent conduct must have been - - negligent conduct, or if you
find a defect in the product, the defect in the product must have been a cause of
the plaintiffs’ or the decedents’ deaths, and, second that the deaths here must have
been a natural and a probable result of such negligent conduct.
Now, there may be more than one proximate cause. And to be a proximate cause,
the claimed negligence need not be the only cause nor the last cause. A cause may
be proximate, although it and another cause act at the same time or in combination
to produce the occurrence.
And if you decide that the defendant was negligent, and that such negligence was
a proximate cause of the occurrence, it is not a defense that the conduct of the
Outlaw Company, or, for that matter, any others who are not parties to this
lawsuit, may also have been a cause of this occurrence. However, if you decide
that the only proximate cause of the occurrence was the conduct of the Outlaw
Company, the boat builder, or some other entity that’s not a party to this case, then
your verdict should be for the defendant.
***
Now, there have been claimed by the plaintiffs in this particular matter - - there’s
some different theories. There’s a negligence theory, there’s also a products
liability theory, as examples here, we’ve been talking a little bit about plaintiffs.
There’s been an allegation that defendant has breached am implied warranty, and
when I use the words “proximate cause” with respect to this warranty claim here,
this products liability claim, I mean, first that the failure of the product to conform
to the warranty must have been a cause of plaintiffs’ injury, and, second, that the
occurrence which is claimed to have produced plaintiffs’ death, or the decedents’
death, and plaintiffs’ damages, must have been a natural and a probably result of
the failure of the product to conform to the warranty.
Now, there may be more than one proximate cause. A cause may be proximate,
although it and another cause act at the same time or in combination to produce
the occurrence. To be a proximate cause, the claimed failure of the product to
meet the warranty need not be the only cause, nor the last cause.
When I use the words “implied warranty,” I mean a duty imposed by law which
requires that the manufacturer -- that the manufacturer’s product be reasonably fit
for the purpose and uses intended, or reasonably foreseeable by the manufacturer.
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Let me say that again, I probably didn’t say that very clearly.
When I use the words “implied warranty,” I mean a duty imposed by law which
requires that the manufacturer’s product be reasonably fit for the purposes
intended or reasonably foreseeable by the manufacturer.
Now, with respect to this aspect of plaintiffs’ claim, the plaintiff has the burden of
proof on each of the following:
First, the vented fuel fill was not reasonably fit for the use or purpose anticipated
or reasonably foreseeable by the defendant in one or more of the ways claimed by
plaintiff.
Second, that the vented fuel fill was not reasonably fit for the use or purpose
anticipated or reasonably foreseeable by the defendant at the time it left
defendant’s control.
Third, that plaintiffs’ decedents sustained damages.
And fourth, that the failure of the vented deck fill to resist water injection was a
proximate cause of the death and damages of plaintiffs’ decedents.
Now, again you’ll be getting a jury verdict from which will help you, I think wind
your way through those particular issues.
Now, relative to the product again, the defendant had a duty to use reasonable
care at the time it designed the vented deck fill, so as to eliminate unreasonable
risks of harm or injury which were reasonably foreseeable.
The defendant also had a duty to use reasonable care to communicate information
that is essential to the safe use of the product. Now, this duty to warn and instruct
extends to intended uses of a product and associated with the product – I should
say, with the foreseeable misuse of a product.
However, a component supplier does not have a duty to warn or instruct a
company that knew or should have known of the product’s characteristics.
Now reasonable care means that degree of care which a reasonably prudent
manufacturer would exercise under the circumstances which you find existed in
this case. And, ladies and gentlemen, it’s for you to decide, based on the
evidence, what a reasonably prudent manufacturer would do or would not do
under those circumstances.
A failure to fulfill the duty to use reasonable care is negligence. [Emphasis
added.]
The jury separately found that defendant had not breached an implied warranty, and that
defendant was not negligent.
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The question is whether there was sufficient evidence to justify the court’s giving the
“sophisticated user” instruction as given. Objections to the wording of the instruction were not
preserved.2 To the extent that the Burnside estates seek to challenge the “should have known”
language in the instruction, the challenge was forfeited by counsel failure to state this ground for
objecting to the instruction, see n 2, supra, and was waived by plaintiffs’ joint brief in opposition
to defendant’s motion for summary disposition, wherein plaintiffs themselves advanced the
“knew or should have known” language.
There was conflicting testimony regarding whether Outlaw should have been aware of the
VFF’s characteristics based on its status as an original equipment boat manufacturer with
knowledge of the various industry standards guiding the building of safe boats, and based on
information in the public domain, including the simple fact that the product was a vented fuel fill,
and was called a deckfill.
We conclude that the trial court did not err in giving the instruction. There was ample
evidence presented from which the jury could have found that knowledge of the characteristics of
the VFF was in the public domain. The trial testimony of the designers of the Attwood VFF,
Clark and Whitley; and of Mulligan, Lefler, and Taylor supported that common knowledge
within the industry is that vents and vented fuel fills are not waterproof, but water-resistant, and
should not be located where subject to immersion. There was testimony that none of the fuel fills
on the market, including vented ones, contain warnings as to this known danger, and that any and
all boat builders are presumed to know such. Further, the American Boat & Yacht Council
2
The in-chambers discussions regarding the jury instructions were not on the record, and we
have no account of the discussions other than the objections placed on the record, quoted, supra.
The appellate briefs do not describe additional discussions or objections regarding the substance
of the instruction (as opposed to the notice issue), and there is no additional information to be
gleaned from the motion for new trial. The transcript of the objections placed on the record after
the jury instructions were given reveals that Mr. Kell, counsel for the Ayre and Swift estates,
apparently indicated in chambers that he would not be objecting to the instructions. He
nevertheless objected that he had no notice of the instruction. He also asserted that the
instruction should not have been given, without stating why, and that the jury should have been
given guidance relative to whether Outlaw, under the facts, “could be deemed a sophisticated
user or an entity which knew or should have known of the hazard to be warned of and associated
with the product.” Thus, even assuming Kell’s clients could object after Kell indicated in
chambers that he would not, the objections were not directed to the language used in framing the
issue, i.e., there was no objection to use of the language “a component supplier does not have a
duty to warn or instruct a company that knew or should have known of the product’s
characteristics.” In fact, Kell seemed to have agreed that the standard was a “knew or should
have known” standard, but felt that there was no evidence that Outlaw was an entity that knew or
should have known, and that guidance should be given in addressing that issue. Mr. Hahn,
counsel for the Burnside estates, did preserve the objection in chambers. However, the transcript
does not refer to any objection regarding the substance of the instruction, only the lack of notice.
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(ABYC) guidelines, universally accepted as the boat builder’s bible, required that fuel lines be
properly pressure-tested. Had a proper pressure-test been done in the instant case, it would have
revealed that the VFF was improperly installed.
C
Plaintiffs further argue that defendant still had a duty to warn Ayre, the consumer.
Although plaintiffs are correct that the duty to warn instruction in the instant case did not
expressly address defendant’s duty to warn the ultimate user of its product, there is no indication
in the record before us that plaintiffs requested or submitted such an instruction. And, most
important, the challenged sophisticated-user instruction did not negate any duty to warn the boat
owner or ultimate user. Plaintiffs have not shown that they requested that the jury be instructed
regarding a duty to warn decedent Ayre directly in a fashion different than the instruction given.
D
Plaintiffs assert that the trial court erred by giving the sophisticated user instruction after
finding that Outlaw was not a sophisticated user. However, the statements of the court plaintiffs
rely on were made in the context of the court finding that a question of fact regarding Outlaw’s
status as a sophisticated user precluded the court’s granting defendant’s motion for directed
verdict on that ground. The court did not find as fact that Outlaw was not a sophisticated user as
defined in the instructions. Although it seemed evident that Cripe, the owner of Outlaw Marine
and designer of the Outlaw 18, did not have actual knowledge regarding the product’s dangers,
there was evidence from which the jury could conclude that Outlaw should have known about the
product’s characteristics given that it was a boat builder and there is a body of knowledge and
standards applicable to boat builders. Plaintiffs’ arguments that the instruction was unsupported
by the evidence are unpersuasive, in light of the parties’ theories of the case and the trial
testimony.
E
Plaintiffs also argue that the sophisticated user instruction improperly delegated the
question of duty to the jury. Generally, whether a duty exists is a question of law and does not
require resolution of factual disputes. Howe v Detroit Free Press, Inc, 219 Mich App 150, 156;
555 NW2d 738 (1996), aff’d 457 Mich 871; 586 NW2d 85 (1998), citing Farwell v Keaton, 396
Mich 281, 286-287; 240 NW2d 217 (1976). “However, if there are factual circumstances that
give rise to the duty, the existence of those facts must be determined by a jury.” Howe, supra at
156.
In this case, the sophisticated user instruction did not improperly delegate the question of
duty to the jury; in conjunction with the rest of the instructions it described the duty and left the
factual question whether the duty was breached to the jury. The jury was given the task of
deciding factual issues, including whether the product was itself defective, whether the misuse of
the product was foreseeable and whether Outlaw knew or should have known of the product’s
dangerous characteristics.
-13-
F
Plaintiffs’ remaining subarguments seem to be arguments based on factual inferences that
plaintiffs believe should have been drawn from the testimony. Plaintiffs’ argument that “a
manufacturer always has an initial duty to warn, regardless of the purchaser’s sophistication” is
not supported by argument on point, but, rather, seems to be an argument that even sophisticated
users would not have appreciated the danger. However, the evidence was conflicting on this
issue, and if the jury agreed with this proposition, it would have either found the product
defective or that there was a duty to warn which was not excused because it was not the case that
Outlaw knew or should have known of the dangers.
II
Plaintiffs also argue the trial court erred in excluding product recall evidence, while it
allowed defendant to provide extensive testimony about allegedly conscientious and safetyfocused development of the product in question.
We review the trial court’s determination to exclude the evidence of recall for an abuse of
discretion. Price v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d 337 (1993). Relevant
evidence may be excluded under MRE 403 if its probative value is substantially outweighed by
the danger of unfair prejudice. Allen v Owens-Corning Fiberglas Corp, 225 Mich App 397, 404;
571 NW2d 530 (1997). “Evidence does not present a danger of unfair prejudice unless it
threatens the fundamental goals of MRE 401 and MRE 403: accuracy and fairness.”
Wischmeyer v Schanz, 449 Mich 469, 481; 536 NW2d 760 (1995).
Before opening statements, defendant moved in limine to preclude plaintiffs from
producing evidence of a product recall. The trial court stated that it would not prohibit plaintiff
from raising the recall in opening statement, but asked both counsel to tread lightly, and said it
would hear arguments regarding the relevancy and admissibility of the recall evidence when the
issue arose.
Plaintiffs argue that when Clifton Ratza, defendant’s vice president of engineering,
testified at length in the latter part of the trial regarding the safety-conscious development of the
product, the door was opened to evidence of recall. At the conclusion of Ratza’s testimony on
direct examination, counsel for the Burnside estates argued outside the jury’s presence:
MR. HAHN: Your Honor, if you’ll recall, yesterday during the testimony of,
direct exam of Mr. Ratza, he testified about the product evolution of a product
involved through the process. During that testimony we approached the bench.
We had a side bar conference. We indicated that we believed he was getting
dangerously close to the recall issue. We then went back and there was not much
more testimony on it.
Today, your Honor, we come in, and Mr. Steel not only develops the general
product evolution, but now he develops the specific product evolution of the
product involved, as the Court knows, that product did go through a recall. I
submit, your Honor, that we are –
-14-
THE COURT: What was the basis for the recall again?
MR. HAHN: . . . . it’s my understanding that when a fuel hose from a pump was
inserted in and downward pressure was applied, the fill was breaking in this area
(indicating), which would be the back area of the fuel pipe, rather than the vent.
THE COURT: And just so the record’s clear, that has nothing to do with this
accident, right?
MR. HAHN: That’s my understanding, your Honor. One, plaintiff [sic
defendant] has now put in evidence a misleading picture of this product. They
have not given these members of the jury the true history as to what went on with
this product. So right now as they sit here they are misled.
Secondly, your Honor, the recall goes to the issue of testing and thoroughness.
Mr. Steel spent a great deal of time with Mr. Ratza, both yesterday and today,
informing these jurors, suggesting to them, “We are thorough. We test. We think
about safety. Gosh, you know, we couldn’t do anything wrong. We did
everything we possibly can.”
Well, the fact of the matter is, they didn’t, and it’s pretty obvious because of the
recall situation, your Honor.
***
And the fact that there was a recall, regardless of which technical issue the
product was recalled [sic], goes directly to the reasonableness of Attwood and the
evolutionary history of this product.
THE COURT: Mr. Steel?
MR. HAHN: Your Honor, if I may add one thing, then Mr. Steel can talk with
regard to all of it, furthermore, your Honor, what is already in evidence, Plaintiff’s
Exhibit 65, is a letter from Attwood’s regional sales manager, which states, quote:
“Attwood has not tested this product early for production release.”
This is far from a smooth evolution, your Honor, far from it. But the jury again,
in its [sic] reiterating what has already been said, are sitting there with a false
impression.
THE COURT: All right. Mr. Steel?
MR. STEEL: Yes, your Honor. I will incorporate the same arguments I made
early in this case, when the issue arose regarding keeping it out, and the reasons
for keeping it out then are the same now.
As far as the evolution of the design on this, we went through an evolution so the
jury would know what happens to a product from start to finish. Mr. Ratza never
-15-
gave any indication that everything was fool proof or that he – even he
acknowledged that they didn’t do all of the steps for each particular product.
The fact that this thing was recalled is irrelevant to any issue in this case. There is
nothing at all about the recall that had to do with water entry.
There were six or seven instances of breakage that prompted the recall. That in
itself is not an acknowledgment that something was wrong with our process.
And even if there were some stretch of the imagination that this were somehow
relevant to anything, the prejudicial effect is so significant, and I would have to go
into a lot of information about the recall, and why it was done and why it had –
***
THE COURT:
***
And in this particular matter relative to a recall, I tried – well, I have been working
up here on some other things, but I did try to pay attention generally to the
testimony, because certainly counsel for plaintiff has made aware to the Court and
also to defense counsel at side bar that he should proceed with some degree of
caution, lest this issue of recall come up and the Court be asked to revisit an
earlier ruling I made relative to the admissibility of that recall.
I haven’t heard it get to that point. What I’ve heard the testimony is, it’s basically
a procedure and a method over a period of time when this product was developed.
I’ve listened to see whether there was a lot of emphasis, “And we did this to make
sure this was safe,” and all that, and to me it was a history of the product
development.
And part of the claims that the plaintiffs have made in this case is that the
manufacturer’s been negligent in that regard, and certainly if they’re claiming
there’s been negligence in the manufacturing of this product and distributing this
product, whatever, it seems to me that it’s totally appropriate for the company to
be able to get in the process that was utilized in bringing this product through
development stages and to market.
And I’ve listened to the testimony. I don’t think it has crossed the line.
Furthermore, there are a couple of reasons. Number one, if we got into this recall,
and I don’t think he’s crossed the line, if he should, just so the record is clear, how
I see this, if he got into the matter of recall, it has absolutely nothing to do with
what happened in this accident.
-16-
There could be, I guess, some degree of relevance if it’s suggested that there was
a shoddy procedure in developing a product. But that is far outweighed, it seems
to me, by the prejudice that would be created by letting that testimony in.
Simply, the recall was not relevant to anything involved in this particular mishap.
[Emphasis added.]
The record does not support plaintiffs’ argument that the trial court’s exclusion of the
recall evidence allowed Attwood’s claim of due care during the fuel fill’s development to go
unchallenged, or that the jury was left with the misleading impression that the fuel fill’s
development was error-free and that Attwood’s conduct could not have been a substantial factor
in producing the injuries at issue. Plaintiffs’ counsel cross-examined Ratza at length, eliciting
testimony including that although Whitley, an Attwood senior product engineer in charge of
research and development, had suggested that a technical information bulletin to OEM’s and the
public regarding the performance of the vented fuel fill was warranted, Attwood decided against
issuing such a bulletin; and that Whitley’s immersion testing of the vented fuel fill did not occur
until after the product was on the market. Plaintiffs’ counsel also elicited from Ratza that
Attwood made mistakes in the developing and bringing the fuel fill to market; and that a vented
fuel fill of a competitor, Perko, reached the market before Attwood’s even though Attwood
began developing the product before Perko. Further, plaintiffs’ counsel asked Ratza “[t]he
mistakes that you made in developing this product were costly to the company, were they not?”
after which defense counsel objected and requested a bench conference, and the jury was
excused. The trial court sustained the objection, and asked plaintiffs’ counsel to clarify what
mistakes he was alluding to without mentioning the recall. Ratza then further testified about
problems with the vented fuel fill unrelated to the accident at issue. Further, Attwood’s senior
design engineer and co-inventor of the VFF, Donald Clark, and co-inventor Mel Whitley testified
regarding problems Attwood had had with the plastic of certain fuel caps cracking and that it
discontinued using an O ring or sealing disk in fuel fills.
The trial court’s conclusion that Ratza’s testimony is properly described as covering the
process Attwood went through in developing products generally is supported by the record. The
trial court did not abuse its discretion by excluding evidence of defendant’s voluntary recall of a
fuel fill not at issue in this case, where the recall was due to a problem not involved in the instant
case. MRE 403. In Muniga v General Motors Corp, 102 Mich App 755, 761-762; 302 NW2d
565 (1980), this Court held that the trial court did not err in excluding under MRE 403 evidence
of a recall by the defendant of a different model car than that at issue:
Evidence of the recall would have no relevance as to whether a separated engine
in plaintiff’s car could rotate, thus opening the throttle. The potential for rotation
is determined not only by the engine mounts, but also by the parts adjacent to and
adjoining the engine itself. Where testimony established that the recalled models
had substantially different engine compartment layouts than plaintiff’s model,
evidence of the recall would have no bearing on the ability of plaintiff’s engine to
rotate and go into full throttle.
We find no error.
-17-
III
Plaintiffs argue that the jury’s verdict was against the great weight of the evidence
because there was no credible evidence that instructions for safe use were not required of
Attwood to guard against the placement of the fuel fill in an area where it could be submerged
and therefore leak. Plaintiffs argue that there was no credible evidence that plaintiffs’ decedents
were sophisticated users or that Outlaw was a sophisticated user. Plaintiffs Ayre and Swift
estates argue that Attwood’s failure to provide warnings and installation instructions constituted
negligence as a matter of law.
On a motion for new trial, the trial court’s function is to determine whether the
overwhelming weight of the evidence favors the losing party, while the appellate court’s function
is to determine whether the trial court abused its discretion in making such a finding. Arrington v
Detroit Osteopathic Hospital (On Remand), 196 Mich App 544, 564; 493 NW2d 492 (1992);
Bordeaux v Celotex Corp, 203 Mich App 158, 170; 511 NW2d 899 (1993). A trial court’s
determination that a verdict is not against the great weight of the evidence will be given
substantial deference by the reviewing court. Arrington (On Remand), supra at 560. It is
incumbent on the reviewing court to analyze in depth the record on appeal. Id.
At the conclusion of the hearing on plaintiffs’ motion for new trial, the trial court stated
regarding plaintiffs’ great weight of the evidence argument:
This went to the jury for the precise reason that there was a dispute. The Court
did not feel that, based on the evidence I heard, that there was any appropriate way
to grant [a] directed verdict for either side, and that the jury should be allowed to
make their decision. They did, they had the benefit of excellent presentations,
lengthy presentation, competent counsel, and I think that there is – while it could
go either way, I suppose, depending on how jurors see it and how factual disputes
are resolved by the jury, I do not believe the jury verdict here was against the great
weight of the evidence.
Plaintiffs’ appellate arguments are unpersuasive. Plaintiff Burnside estates argues that
there was no credible evidence that instructions for safe use were not required of Attwood to
guard against the placement of a fuel fill in an area where it could be submerged and no credible
evidence that either plaintiffs’ decedents or Outlaw were sophisticated users. Credibility is for
the jury to determine. Colbert v Primary Care Medical, PC, 226 Mich App 99, 103; 574 NW2d
36 (1997). The Ayre and Swift estates’ legal argument is simply that Attwood’s failure to
provide warnings and installation instructions constituted negligence as a matter of law, an
unpersuasive argument in light of the conflicting testimony at trial regarding the obvious nature
of the VFF’s characteristics.
Based on the evidence presented at trial, including the testimony summarized above, we
conclude that the jury could have found in either parties’ favor. The trial court did not abuse its
discretion in denying plaintiffs’ motion for new trial. We therefore affirm the jury verdict.
Defendant’s cross-appeal is rendered moot by our disposition.
-18-
Affirmed.
/s/ Peter D. O’Connell
/s/ Helene N. White
I concur in the result only.
/s/ Henry William Saad
-19-
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