Opinion
Docket No. 78-2708.
Decided March 5, 1980. Leave to appeal applied for.
Lakin Worsham, P.C., and Bruce T. Leitman, P.C., for plaintiff.
Plunkett, Cooney, Rutt, Watters, Stanczyk Pedersen, P.C. (by Jeannette A. Paskin), for defendants.
Before: V.J. BRENNAN, P.J., and M.F. CAVANAGH and CYNAR, JJ.
This is a products liability case in which a circuit court jury returned a verdict of no cause of action in favor of defendants. The plaintiff appeals by right, GCR 1963, 806.1.
Plaintiff's deceased was a supervisor for Chase Company when he was killed by an explosion of propane gas. This gas was supplied by defendant Roland's Gas and Oil and manufactured by defendant Sun Oil. At the time of the accident, the deceased was working on the construction of a water tower. Pursuant to this project, a large concrete vault was built as a storage tank. After this vault was poured with concrete, the deceased, with two co-workers, lit a plumber's torch attached to a tank of propane gas and inserted it into the vault to "cure" or dry the cement. The vault was then covered with tarpaulin and weights to keep the tarp in place.
The facts immediately surrounding the explosion were not known. Two of the decedent's co-workers talked to Flinn prior to the accident when they heard an explosion. They later found his body.
The plaintiff initially claimed both negligence and breach of warranty. She alleged that the propane gas supplied by defendant Roland's and manufactured by defendant Sun Oil was either unodorized or insufficiently odorized so that it would not be detected in case of leakage. She also alleged that defendant Sun Oil breached its duty to warn decedent of the dangerous properties of propane gas. However, at trial the plaintiff withdrew her negligence claim and proceeded solely under breach of warranty.
The plaintiff raises three issues on appeal. First, the plaintiff asserts that the trial court's actions of denying plaintiff's motion for mistrial and refusing to give plaintiff's requested cautionary instruction after defense counsel's closing argument were reversible error.
The plaintiff argues that certain remarks by defense counsel injected an element, fault, which was not properly before the jury. The plaintiff reasons that fault is an element of negligence, but since plaintiff's claim was based on breach of warranty and not negligence, plaintiff did not have to prove fault on behalf of defendant. Plaintiff further argues that the decedent's fault was not before the jury since, plaintiff reasons, fault connotes negligence and contributory negligence is not a defense to breach of warranty.
The standard of review for a lower court's denial of a motion for mistrial was stated in People v Denmark, 74 Mich. App. 402, 415; 254 N.W.2d 61 (1977):
"`The trial court's denial of a motion for a mistrial will not be reversed unless it is demonstrated that such a denial constituted an abuse of discretion.' People v Coffman, 45 Mich. App. 480, 487; 206 N.W.2d 795 (1973)."
After reviewing the facts in this case we find that the trial court did not abuse its discretion in denying defendant's motion for mistrial. Here, it appears that counsel's references to "fault" were really comments on the element of a "defect" in defendant's product, a recognized element in a breach of warranty case. Holloway v General Motors Corp, 399 Mich. 617, 624-625; 250 N.W.2d 736 (1977), Kupkowski v Avis Ford, Inc, 395 Mich. 155, 160-161; 235 N.W.2d 324 (1975). Furthermore, the reference to plaintiff's fault was actually a reference to misuse or abuse of product, a recognized defense in breach of warranty cases and one which was supported by the facts in this case. Barefield v LaSalle Coca-Cola Bottling Co, 370 Mich. 1, 5; 120 N.W.2d 786 (1963), Kujawski v Cohen, 56 Mich. App. 533; 224 N.W.2d 908 (1974), lv den 394 Mich. 772 (1975).
The plaintiff next argues that the trial court committed reversible error by failing to give a cautionary instruction to the jury "that there is no necessity for any showing of fault on behalf of Sun Oil Company". The court refused to give this instruction on the ground that "the definition of implied warranty in itself conveys that concept".
In this case, as stated in Snider v Bob Thibodeau Ford, Inc, 42 Mich. App. 708, 713; 202 N.W.2d 727 (1972), lv den 388 Mich. 812 (1972), the concept of fault has not been eliminated in breach of warranty cases, it is represented by the element of defect. Defendant's fault is the defect, supplying a defective product. Accordingly, plaintiff's requested curative instruction was not a proper statement of the law.
It is also asserted by plaintiff that the trial court committed reversible error by (a) charging the jury regarding the defense of abuse or misuse of product; (b) refusing to charge the jury regarding failure to warn; (c) charging the jury that defendant Sun Oil had a right to rely on its product being used in a reasonable and foreseeable manner; and (d) refusing to give plaintiff's requested instruction on "customary practice".
We find, in viewing the charge in its entirety, that the parties' theories and the applicable law were fairly presented. Berlin v Snyder, 89 Mich. App. 38; 279 N.W.2d 322 (1979), Coon v Williams, 4 Mich. App. 325; 144 N.W.2d 821 (1966), lv den 378 Mich. 752 (1967).
Finally, we find no abuse of discretion in the trial court's denial of the plaintiff's request to read selected portions of witness Thomas's deposition on rebuttal. See Moldovan v Allis Chalmers Manufacturing Co, 83 Mich. App. 373; 268 N.W.2d 656 (1978), lv den 406 Mich. 916 (1979).
Affirmed. Costs to defendants.