FEIKENS, District Judge.
Joseph Prosky, plaintiff, brought this diversity action for personal injuries he allegedly suffered while operating a Gridley screw machine manufactured by National Acme Company, defendant and third-party plaintiff.
Plaintiff states in his complaint and answers to interrogatories that when the machine became stuck it had to be hand cranked into reverse because the automatic reverse (a safety feature) had been removed by plaintiff's employer. While plaintiff was cranking the machine it allegedly went into "high gear" with such force as to fracture plaintiff's hand. Plaintiff claims that defendant negligently designed the machine by making the automatic reverse removable, or by failing to incorporate a "fail safe device" that would render the machine inoperative when the automatic reverse was removed.
Defendant impleaded plaintiff's employer, Bruce's Bower Roller Bearing, alleging that the machine was properly designed when it left the factory, and that the employer was actively negligent in removing the automatic reverse. Defendant
In view of the exclusive remedy provision of the Michigan Workmen's Compensation Act, M.C.L.A. § 418.131, it has been held that no action can be maintained by a tortfeasor against the employer of an injured plaintiff for contribution. Husted v. Consumers Power Co., 376 Mich. 41, 135 N.W.2d 370 (1965). If the third-party complaint is to stand, it must therefore be on the theory of indemnity.
The Michigan rule on common law indemnity is that "where the wrongful act of one results in liability being imposed on another, such other person may have indemnity from the person actually guilty of the wrong". Indemnity Ins. Co. v. Otis Elevator Co., 315 Mich. 393, 398-99, 24 N.W.2d 104, 106 (1946), quoting Village of Portland v. Citizens Telephone Co., 206 Mich. 632, 636, 173 N.W. 382 (1919). This rule has been applied by the Michigan courts in certain circumstances to permit persons held liable to employees to recover indemnity from the employers of the primary plaintiffs despite the immunity of the employers under the Workmen's Compensation Act. Thus, in Dale v. Whiteman, 388 Mich. 698, 202 N.W.2d 797 (1972), the owner of a car — held liable to an injured employee of a car wash solely on the basis of the automobile owner's liability statute — was permitted to recover common law indemnity from the owner of the car wash. The car owner was without personal fault, statutory liability requiring nothing more than that the car be operated with his consent. The owner of the car wash, on the other hand, was guilty of the imputed negligence of a second employee, who caused the injuries of the primary plaintiff by negligently hitting him with the car. In McLouth Steel Corp. v. A. E. Anderson Construction Corp., 48 Mich.App. 424, 210 N.W.2d 448 (1973), the owner of a blast furnace was permitted to recover common law indemnity from a contractor hired to reline the furnace, where the contractor's negligence proximately caused the injury to the contractor's employee (primary plaintiff), and the general verdict holding the owner liable to the employee might have been based upon the employee's claim that the work was inherently dangerous and that the owner was therefore vicariously liable for the negligence of the contractor. While noting that "a party seeking indemnification must prove himself free from personal fault", 48 Mich.App. at 430, 210 N.W.2d at 451, the court held that the jury's finding that the owner was negligent "does not preclude indemnification since the jury expressly found such negligence not a proximate cause of the injury". Id. at 431, 210 N.W.2d at 451 (emphasis original). (It should be noted that common law indemnity was an alternative basis for the court's decision since there was an express contract of indemnity running from the contractor to the owner.) Finally, in Nanasi v. General Motors Corp., 56 Mich.App. 652, 224 N.W.2d 914 (1974), the court held that the pleadings of the owner of a construction site and a general contractor stated a claim for common law indemnity against a subcontractor, the employer of the deceased employee for whose wrongful death the primary tort action was brought. The court stated that "[i]t is true that one alleging common-law indemnity must plead and prove freedom from fault", 56 Mich.App. at 659, 224 N.W.2d at 917, but held that freedom from "active, causal negligence" was sufficient, and that in any case the primary plaintiff pleaded "vicarious liability" on the part of the owner and general contractor by claiming that they were responsible for "inherently dangerous activities".
The instant case is significantly different from the cases cited above, however, since it involves a claim that the manufacturer of a product might be held liable for the negligence of the user. The relationship between manufacturer and user is qualitatively different from that between car owner and driver or between landowner and contractor.
The precise issue for decision is whether the manufacturer of a negligently designed product can recover common law indemnity from the employer of the injured plaintiff on the ground that the employer caused the injuries by negligently using the product. Guidance may be found in the decisional law of sister jurisdictions.
In Campbell v. Joslyn Mfg. & Supply Co., 65 Ill.App.2d 139, 212 N.E.2d 512 (1965), the court affirmed the denial of a motion to dismiss a third-party complaint for indemnity brought by the manufacturer of a wooden pole (third-party plaintiff) against the employer of the primary plaintiff. The original complaint was for personal injuries suffered when the employee fell from the
The Campbell case has been superseded, however, by the more recent case of Burke v. Sky Climber, Inc., 13 Ill.App.3d 498, 301 N.E.2d 41 (1973), where the court affirmed the dismissal of a third-party complaint for indemnity brought by the manufacturer of scaffolding equipment against the employer of the primary plaintiff's decedent. The primary plaintiff had sued the manufacturer for the wrongful death of her husband—who was killed when a cable on the scaffold broke in the course of his work — on the theory that the manufacturer was negligent in designing, manufacturing, equipping, inspecting and testing the scaffold, in failing to warn of the danger, or, alternatively, that it was strictly liable in tort for selling a defective product. The third party complaint alleged that the employer had been in sole possession of the equipment for several years prior to the accident, that the employer had negligently failed to maintain the equipment, follow instructions and warn its employees, and that any negligence on the part of the manufacturer was "technical or passive" whereas the negligence of the employer was "active". The court stated:
301 N.E.2d at 45.
316 N.E.2d at 519.
Similarly, in the instant case defendant's claim that plaintiff's injuries resulted solely from the negligence of his employer would appear to state a complete defense to the original action rather than a relationship creating liability of the kind that the Michigan courts have recognized as a ground for indemnity.
A possible source of authority for defendant's position, however, is Smith v. Hobart Mfg. Co., 302 F.2d 570 (3d Cir. 1962). The court, applying Pennsylvania law, rejected the third-party claim of the manufacturer of a meat grinder against the employer of the primary plaintiff. The original action was brought for injuries sustained by the primary plaintiff when his hand became entangled in the grinder, on the theory that the grinder was defectively designed. The third-party complaint alleged
In the present case the primary basis for the plaintiff's claim is that defendant should have guarded against the possibility that the automatic reverse might be removed, either by making it nonremovable or by installing a device that rendered the machine inoperative if the automatic reverse were removed. This approximates the possible basis for indemnity alluded to in the Smith case. That is, plaintiff here is alleging in effect that the manufacturer should have expected the employer to remove the automatic reverse and operate the machine without it. It is, of course, impossible to determine prior to trial whether the evidence will support such a theory or not. The issue is whether the Michigan courts would follow the dictum in Smith and permit indemnity on such a showing.
Smith was cited with approval in Byrnes v. Economic Machinery Co., 41 Mich.App. 192, 200, 200 N.W.2d 104 (1972), though not on the question of indemnity. The court in Byrnes reversed a summary judgment for defendant manufacturer despite the argument that the injury resulted from a misuse of the product. Plaintiff had been injured while manually adjusting a labeling machine when a fellow employee activated the machine; plaintiff alleged that defendant was negligent in failing to install a safety device that would have deactivated the machine during manual adjustment. While the machine had a guard which plaintiff had removed in order to make the adjustments, the court noted that removal of the guard should have been anticipated by defendant because "[p]laintiff had no choice but to remove the guard to do his job". 41 Mich.App. at 200, 200 N.W.2d at 108. The court held:
41 Mich.App.at 201, 200 N.W.2d at 108.
In the present case plaintiff may prove that defendant should have reasonably anticipated that the user of its machine would remove the automatic reverse. While plaintiff does not claim that its removal was necessary as with the guard in Byrnes, he does state in his answer to interrogatory 26 that "[t]he safety device had been removed by management to generate greater production from the equipment". If the machine indeed had greater productive capacity with the automatic reverse removed, the trier of fact might well find that defendant should reasonably have anticipated its removal and should have taken steps to prevent resultant injuries.
Even on such finding, however, Michigan law does not provide a right to indemnity from plaintiff's employer. The Dale case requires the indemnitee to be "without personal fault" and states that "liability should fall upon the party best suited to adopt preventive measures and thereby to reduce the likelihood of injury". 388 Mich. at 706, 202 N.W.2d at 801. If defendant is found liable to
Accordingly, the motion to dismiss the third-party complaint is granted. An appropriate order may be submitted.
In the case of the manufacturer, on the other hand, even the manufacturer of products normally considered dangerous, the rationale of deterrence does not apply. The manufacturer normally has little control over what course his products will follow in the stream of commerce, thus he cannot choose the ultimate user, and cannot supervise that user to ensure that safety precautions are followed. The only basis for a manufacturer's liability is therefore his own breach of a duty by doing or omitting to do something, while the product is within his control. While it is true that the user of the product may also incur liability for injuries resulting to third parties from his negligence in using it, and that such negligent use may concur with the negligence of the manufacturer in causing a single injury, the liabilities of manufacturer and user are separate and distinct.