BEVERLY BOUVERETTE V WESTINGHOUSE ELECTRIC CORP
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STATE OF MICHIGAN
COURT OF APPEALS
BEVERLY BOUVERETTE, as Personal
Representative for the Estate of DAVID
BOUVERETTE, deceased,
FOR PUBLICATION
April 20, 2001
9:10 a.m.
Plaintiff-Appellee,
v
No. 219451
LC No. 96-009612-NP
WESTINGHOUSE ELECTRIC CORPORATION,
Defendant/CounterdefendantAppellant,
Updated Copy
June 8, 2001
and
HY TEK SYSTEMS, INC.,
Defendant/Counterplaintiff/ThirdParty Plaintiff,
and
CUTLER HAMMER, INC.,
Defendant/Counterdefendant,
and
MEDAR, INC.,
Defendant/Counterplaintiff/ThirdParty Defendant.
Before: Holbrook, Jr., P.J., and Hood and Neff, JJ.
PER CURIAM.
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In this wrongful death and products liability action, defendant1 Westinghouse Electric
Corporation (herein "defendant") appeals as of right the circuit court's entry of judgment in favor
of plaintiffs after a jury verdict awarding plaintiff $499,610.90 following the death of her
husband in an industrial accident. We affirm.
I
Plaintiff 's decedent husband, forty-one-year-old David Bouverette, was employed as a
journeyman electrician by Sebewaing Industries, Inc., an automotive parts stamping company.
On June 7, 1995, Bouverette died of an apparent electrocution while working on a control panel
manufactured by defendant Medar, Inc., which contained circuit breakers manufactured by
defendant. The panel controlled an industrial welding machine, designed, built, and sold by
defendant Hy Tek Systems, Inc.
On March 27, 1996, plaintiff filed the instant wrongful death and products liability action
against defendants Westinghouse and Hy Tek, alleging, against Westinghouse, negligent design,
manufacture, and failure to warn and breach of implied warranty of fitness (defective design and
manufacture and inadequate warnings).2
Hy Tek subsequently moved to file a third-party
complaint, under MCR 2.204, against defendant Medar, Inc., seller of the electrical control panel
to Hy Tek, following which plaintiff filed an amended complaint, alleging negligence and breach
of implied warranty against Medar.
Before trial, plaintiff settled with Hy Tek for $75,000 and with Medar for $35,000. The
jury returned a verdict for plaintiff on the claims of breach of implied warranty and breach of
express warranty. However, the jury found in favor of defendant on the claim of negligence.
The jury awarded damages of $111,817 for economic losses and $750,000 for noneconomic
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losses. The jury found Bouverette thirty percent at fault and defendant seventy percent at fault,
resulting in a final judgment of $499,610.90. The court denied defendant's motion for judgment
notwithstanding the verdict (JNOV) or a new trial.
II
Defendant argues that plaintiff failed to establish a prima facie case of breach of implied
warranty in the absence of risk-utility evidence, required for claims under either defective design
or failure to warn,3 and, thus, that the trial court erred in denying defendant's motions for a
directed verdict and JNOV. We disagree.
We review de novo the grant or denial of a directed verdict and a trial court's decision on
a motion for JNOV. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998); Meagher v
Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997).
Our courts have stated that negligence and breach of implied warranty may, in certain
factual contexts, involve the same elements and proofs, both in a failure to warn claim, Smith v E
R Squibb & Sons, Inc, 405 Mich 79, 88; 273 NW2d 476 (1979), and in a design defect claim,
Prentis v Yale Mfg Co, 421 Mich 670, 692; 365 NW2d 176 (1984). Nonetheless, the theories of
negligence and implied warranty remain separate causes of action with different elements.
Lagalo v Allied Corp, 457 Mich 278, 287, n 11; 577 NW2d 462 (1998).
Although in a design defect case the trier of fact must apply "a risk-utility balancing test
that considers alternative safer designs and the accompanying risk pared [sic] against the risk and
utility of the design chosen," Gregory v Cincinnati, Inc, 450 Mich 1, 13; 538 NW2d 325 (1995),
no such specific analysis is required in a failure to warn case. In discussing the importance of
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risk-utility balancing with regard to the proper scope of warnings, this Court in Dunn v Lederle
Laboratories, 121 Mich App 73, 80; 328 NW2d 576 (1982), expressly stated that the adequacy
of a warning is an issue of reasonableness, and reasonableness is a question of fact. Thus,
plaintiff did not fail to establish a prima facie case of breach of implied warranty in failing to
satisfy a risk-utility analysis.
When a products liability action is premised on a breach of implied warranty of fitness,
the plaintiff must prove that a defect existed at the time the product left the defendant's control,
which is normally framed in terms of whether the product was "'reasonably fit for its intended,
anticipated or reasonably foreseeable use.'" Gregory, supra at 34, quoting Elsasser v American
Motors Corp, 81 Mich App 379, 384; 265 NW2d 339 (1978); see also Lagalo, supra at 286, n 9.
There was ample evidence to establish a prima facie claim of breach of implied warranty
premised on failure to warn. Plaintiff presented evidence that the breaker did not make or break
simultaneously as intended when used with an external linkage handle. Further, defendant's
instruction and installation manual did not provide a warning in this regard. There was testimony
that the manual contained other warnings to electricians and should have warned of the external
linkage problem or that the breaker itself should have had a warning label to that effect.
Electricians relied on the breaker to shut off power by breaking simultaneously when the handle
was in the off position, as did Medar in installing the indicator lights. This evidence presents a
question of fact whether defendant's failure to warn of this condition was reasonable given the
risk of electrocution. See Hatfield v St Mary's Medical Center, 211 Mich App 321, 325; 535
NW2d 272 (1995).
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Further, given the evidence, the jury could have found a breach of implied warranty
because it was foreseeable that the breaker would be used with the linkage and yet, when one leg
of the breaker fused, the breaker handle could be placed in the off position even though
electricity was still flowing.
The jury could have found that the breaker failed to break
simultaneously, as it was intended to do, when the linkage handle was placed in the off position.
Thus, the jury verdict must stand. Severn v Sperry Corp, 212 Mich App 406, 412; 538 NW2d 50
(1995).
III
Defendant argues that plaintiff 's express warranty claim fails because plaintiff did not
establish privity of contract, as required under the Uniform Commercial Code (UCC), MCL
440.2313 and 440.2318. Plaintiff contends that the UCC is inapplicable in a personal injury
action. We agree that the UCC requirements are inapplicable in this case.
Our courts have distinguished between actions in tort, seeking redress for personal injury,
and those based in contract, involving a commercial loss.
See Neibarger v Universal
Cooperatives, Inc, 439 Mich 512; 486 NW2d 612 (1992); Crews v General Motors Corp, 400
Mich 208, 226-228; 253 NW2d 617 (1977). Since 1965, our courts have recognized that privity
is unnecessary with respect to an injured bystander's right of recourse against a manufacturer on
the theory of breach of warranty and negligence.
Glittenberg v Doughboy Recreational
Industries (On Rehearing), 441 Mich 379; 388, n 8; 491 NW2d 208 (1992); Piercefield v
Remington Arms Co, Inc, 375 Mich 85, 98; 133 NW2d 129 (1965). Although in 1978 the
Legislature codified the law governing products liability actions, MCL 600.2945, the distinctions
between tort and contract liability remain.
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This Court has recognized a products liability claim premised on breach of express
warranty where the plaintiff, a quality control inspector who was injured on the job, sued the
seller/manufacturer of a polyester strap that broke when the plaintiff was securing a palletized
load of parts, on facts analogous to those in this case. Scott v Illinois Tool Works, Inc, 217 Mich
App 35, 37, 41-43; 550 NW2d 809 (1996). The plaintiff 's express warranty claim was based on
a price quotation and specification references for the sale of the strap between one of the
defendants and the plaintiff 's employer. Id. at 42. This Court affirmed the trial court's denial of
a directed verdict on the express warranty claim. Id. at 41, 43; see also Reid v Volkswagen of
America, 512 F2d 1294, 1297 (CA 6, 1975) (under Michigan law, the privity requirement of the
Michigan UCC is inapplicable to a products liability action based on express warranty). Privity
of contract was not a prerequisite to plaintiff 's express warranty claim.
IV
Defendant argues that the jury's verdict is inconsistent as a matter of law because the jury
found no negligence, but did find breach of implied warranty, and an implied warranty cannot be
breached absent negligence. We disagree.
"'[I]f there is an interpretation of the evidence that provides a logical explanation for the
findings of the jury, the verdict is not inconsistent.'" Lagalo, supra at 286, quoting Granger v
Fruehauf Corp, 429 Mich 1, 7; 412 NW2d 199 (1987). A court must look beyond the legal
principles underlying the plaintiff 's causes of action and carefully examine how those principles
were argued and applied in the context of the case. Lagalo, supra at 284.
In this case, the court's instructions to the jury provide a plausible explanation for the
finding of a breach of implied warranty, but no negligence, on the basis of a failure to warn. The
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instructions on negligence were expressed in terms of negligent design or manufacture, with no
mention of failure to warn. The only mention of failure to warn liability was in the court's
instruction on breach of implied warranty.
Given the instructions, it is plausible that the jury found liability on the basis of a failure
to warn, and thus found a breach of implied warranty, but did not find that defendant negligently
designed or manufactured the breaker, and therefore found no negligence. This is particularly so
in this case, given the parties' emphasis on an external linkage as the source of the problem,
because defendant was not the manufacturer of the linkage.
Moreover, the jury could have found that the breaker itself technically was not defective,
but that it was not reasonably fit for the uses intended or foreseeable, i.e., the safety features
failed when connected to a linkage handle, which was an intended or foreseeable use. Because
the factual situation in this case so closely coincides with the specific language of implied
warranty, the jury's findings are logical and consistent. "'[I]t is fundamental that every attempt
must be made to harmonize a jury's verdicts. Only where verdicts are so logically and legally
inconsistent that they cannot be reconciled will they be set aside.'" Clark v Seagrave Fire
Apparatus, Inc, 170 Mich App 147, 153; 427 NW2d 913 (1988), quoting Granger, supra at 9.
V
Defendant claims that the trial court erred in permitting Michael Shanblatt to testify
concerning the breaker's compliance with UL 489 because Shanblatt's limited familiarity with the
design of circuit breakers and UL 489 rendered him unqualified, and further claims that
Shanblatt's confusing testimony distorted the issue whether the breaker operated as intended. We
disagree.
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The qualification of an expert witness, and the admissibility of the expert testimony, are
within the trial court's discretion, and the trial court's decision will not be reversed absent an
abuse of discretion. Mulholland v DEC Int'l Corp, 432 Mich 395, 402; 443 NW2d 340 (1989).
Under MRE 702, an expert may be qualified by virtue of his knowledge, skill, experience,
training, or education. Mulholland, supra at 403. Michigan endorses a broad application of
these requirements in qualifying an expert. Grow v W A Thomas Co, 236 Mich App 696, 713;
601 NW2d 426 (1999).
At the time of trial, Shanblatt had been a professor of electrical engineering at Michigan
State University and had taught there for eighteen years. He had bachelor, masters, and doctoral
degrees in electrical engineering. He had worked for defendant for six months in the high
voltage switch gear division and was involved in a project to determine the amount of silver
plating to place on voltage breakers and switches. He had extensive expertise as an electrical
engineer and as a professor in electrical power systems, which includes circuit breakers.
Shanblatt had previously conducted investigations similar to that involved in this case and
was familiar with UL 489 standards, because since being asked to consult on this case, he had
studied those specific standards that were referenced in the breaker installation instructions. The
facts or data on which an expert bases his opinion may be made known to him at or before trial,
Mulholland, supra at 412, and an opposing party's disagreement with an expert's opinion or
interpretation of facts, and gaps in expertise, are matters of the weight to be accorded to the
testimony, not its admissibility, Woodruff v USS Great Lakes Fleet, Inc, 210 Mich App 255, 259260; 533 NW2d 356 (1995); People v England, 176 Mich App 334, 340; 438 NW2d 908 (1989),
aff 'd on different grounds sub nom People v Perlos, 436 Mich 305; 462 NW2d 310 (1990).
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Given Shanblatt's credentials and experience, the trial court did not abuse its discretion in
qualifying Shanblatt as an expert. We find no evidence that Shanblatt's testimony confused,
rather than aided, the jury. Defendant's challenges are matters of the weight to be accorded
Shanblatt's testimony relative to other expert testimony.
VI
Defendant challenges the court's special instructions, requested by plaintiff, regarding
implied warranty. When the standard jury instructions do not adequately cover an area, the trial
court is obligated to give additional instructions when requested, if the supplemental instructions
properly inform the jury of the applicable law and are supported by the evidence. Stoddard v
Manufacturers Nat'l Bank of Grand Rapids, 234 Mich App 140, 162; 593 NW2d 630 (1999).
Supplemental instructions, when given, must be modeled as nearly as practicable after the style
of the Standard Jury Instructions and must be concise, understandable, conversational, unslanted,
and nonargumentative. Id. at 163, citing MCR 2.516(D)(4). A trial court's decision regarding
supplemental instructions will not be reversed unless failure to vacate the verdict would be
inconsistent with substantial justice. Grow, supra at 702.
The challenged instructions stated:
Now, Members of the Jury, the plaintiff claims that the defendant
Westinghouse failed to warn users such as Dean Southgate and David Bouverette
that the breaker could fail to make or break simultaneously. . . .
A manufacturer's duty to produce a product which is reasonably fit for its
intended or reasonably foreseeable purposes includes a duty to warn purchasers or
users of its product about dangers associated with its intended use. If you find that
the defendant's breaker could fail to make or break simultaneously, and you
further find that defendant either did not warn or inadequately warned of this
potential, you may find that defendant breached its duty to warn and you may find
that the defendant's breaker was defective and that defendant breached its implied
warranty.
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Defendant argues on appeal that the instructions were slanted because they assumed as
true plaintiff 's factual assertions that the breaker did not comply with UL 489 standards because
it did not make or break simultaneously and, further, that the breaker had been operated in its
intended manner, both contested facts. This was not the basis of defendant's objection to the
instructions at trial. At trial, defendant objected to these instructions on the basis that they did
not follow the applicable law. Failure to timely and specifically object precludes appellate
review absent manifest injustice. Meyer v Center Line, 242 Mich App 560, 566; 619 NW2d 182
(2000). We find no manifest injustice.
Jury instructions are reviewed in their entirety to determine whether the theories of the
parties and the applicable law were adequately and fairly presented to the jury. Cacevic v
Simplimatic Engineering Co, 241 Mich App 717, 721; 617 NW2d 386 (2000). When the failure
to warn instructions are read in conjunction with the standard jury instructions provided for
breach of implied warranty, the instructions adequately and fairly presented the parties' theories
and the applicable law.
Even if the special instructions were found improper, the jury's finding in favor of
plaintiff on her express warranty claim provides an independent basis for affirming the verdict.
VII
Defendant claims that the jury's verdict was against the manifest weight of the evidence
or was improperly influenced by sympathy, passion, or prejudice. A trial court's determination
that a verdict was not against the great weight of the evidence will be given substantial deference
by this Court. Severn, supra at 412. We find no basis for vacating the verdict in this case, where
reasonable support for the verdict is found in the evidence and the verdict returned by the jury is
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unlikely to have resulted from extraneous influences, passion, prejudice, or sympathy. Nagi v
Detroit United R Co, 231 Mich 452, 457; 204 NW 126 (1925); People v Plummer, 229 Mich
App 293, 306; 581 NW2d 753 (1998).
VIII
Defendant presents as its final argument the contention that the trial court erred in failing
to reduce (1) the judgment by the amount of Medar's settlement, and (2) the future damages
award to present cash value. This issue is not presented in defendant's statement of questions
presented and, thus, this Court need not review this issue. Independent issues not raised in the
statement of questions presented are not properly presented for appellate review. Greathouse v
Rhodes, 242 Mich App 221, 240; 618 NW2d 106 (2000).
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Harold Hood
/s/ Janet T. Neff
1
The remaining defendants are not participating in this appeal.
2
At the conclusion of plaintiff 's proofs, the trial court granted plaintiff 's motion to add a claim
of breach of express warranty.
3
Defendant's claim on appeal concerning plaintiff 's failure to establish a prima facie case of
negligence is moot because the jury found in favor of defendant with respect to these issues, and
plaintiff has not filed a cross-appeal.
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