This Court has stated that the formula used by the trial court "would have required jurors to consider plaintiff's degree of fault relative to all parties involved in the incident, including non-party settling tortfeasors, contrary to the policies announced in Mayhew". Gagnon v Dresser Industries Corp, 130 Mich. App. 452; 344 N.W.2d 582 (1983). The Court in Gagnon found that it was proper to deduct the amount of the settlement before making the deduction for comparative negligence.
In a per curiam opinion, the Court of Appeals affirmed the judgment of the trial court. 130 Mich. App. 452; 344 N.W.2d 582 (1983). We, thereafter, granted defendant's application for leave to appeal.
Thus, the Michigan courts have held that the U.C.C. is inapplicable in tort actions alleging breach of a legally-implied warranty. Gagnon v. Dresser Industries Corp., 130 Mich. App. 452, 344 N.W.2d 582, 584 (1983); Williams, 234 N.W.2d at 706 ("The Uniform Commercial Code . . . is inapplicable to a tort action alleging a breach of implied warranty."); Upjohn Co. v. Rachelle Laboratories, Inc., 661 F.2d 1105, 1108 (6th Cir. 1981) ("The Uniform Commercial Code and other contract-based concepts of Michigan law are inapplicable to a tort action alleging a breach of implied warranty."). The facts of Johnson v. Chrysler Corp., 74 Mich. App. 532, 254 N.W.2d 569 (1977), are similar to those of the case before the Court.
Any responsibility to rewrite the statutes lies with the Legislature. Though plaintiff cites several cases in support of the rule that under the law of joint and several liability "a remaining defendant may not allocate fault to any of the settling defendants," see Dep't. of Transportation v. Thrasher, 446 Mich. 61, 82-83; 521 N.W.2d 214 (1994), Gagnon v. Dresser Industries Corp., 130 Mich. App. 452, 460; 344 N.W.2d 582 (1983), and Anderson v. Harry's Army Surplus, Inc., 117 Mich. App. 601, 613, 324 N.W.2d 96 (1982), each of those cases was decided before tort reform, and therefore before the enactment of the allocation of fault provisions found in MCL 600.6304 and MCL 600.2957 at issue here. Accordingly, this case law is not persuasive.
A trial court does not abuse its discretion by excluding evidence of safety regulations where the purpose of introducing the regulatory codes was already fulfilled by other evidence and where any peripheral reference which the regulations may have to the parties' conduct "would certainly be far outweighed by the confusion to the jury." Gagnon v Dresser Industries, Corp, 130 Mich. App. 452, 462; 344 N.W.2d 582 (1983), aff'd 424 Mich. 166; 380 N.W.2d 440 (1985). Here, plaintiff asserts that the "ladder" testimony would have served as a "critical frame of reference" for determining whether the stairway was too steep.
Other panels have stated that the standard of review is for an abuse of discretion. See, e.g., Gagnon v Dresser Industries Corp, 130 Mich. App. 452, 463; 344 N.W.2d 582 (1983), aff'd 424 Mich. 166 (1985). Errors in the admission or exclusion of evidence shall not be disturbed on appeal unless "refusal to take this action appears to the court inconsistent with substantial justice."
The stipulation as to plaintiff's hourly wage prior to the accident, together with the severity and permanency of plaintiff's injuries, is evidence from which the trier of fact could have estimated plaintiff's lost wages or lost earning capacity in a manner which went beyond mere conjecture. Gagnon v Dresser Industries Corp, 130 Mich. App. 452, 461; 344 N.W.2d 582 (1983), aff'd 424 Mich. 166 (1985). This case must be remanded to the trial court for computation of plaintiff's lost wages and/or loss of earning capacity without deduction for prospective income taxes.
The court, however, did prohibit some general questioning regarding plaintiff's smoking and use of a seat belt. Admissibility of evidence is within the trial judge's discretion, and his determination will not be set aside by this Court unless there has been an abuse of that discretion. Gagnon v Dresser IndustriesCorp, 130 Mich. App. 452, 463; 344 N.W.2d 582 (1983). In the present case, the trial court properly permitted plaintiffs to be cross-examined concerning Tim Warner's drinking and smoking on the evening of the accident.
Thus, while the specific regulations may have been relevant to the applicable standard of care, any error in their exclusion was harmless, and Mr. Ratcliff suffered no prejudice. The point is denied. See, e.g. Gagnon v. Dresser Indus. Corp., 130 Mich.App. 452, 344 N.W.2d 582, 587 (1983) (exclusion of evidence of OSHA safety regulations was harmless where jury was informed of similar ANSI standard, which contained applicable standard of care, and expert was permitted to testify that conduct violated the excluded regulations), overruled on other grounds by Salter v. Patton, 261 Mich.App. 559, 682 N.W.2d 537 (2004). Compare LePage v. Walsh Constr. Co., 126 Ill.App.3d 1075, 82 Ill.Dec. 247, 468 N.E.2d 509, 511 (Ill.Ct.App. 1984) (exclusion of OSHA regulation was prejudicial even though identical ANSI regulation, which was a user-created standard, was introduced because "it would be `of substantial relevance' in evaluating the standard to know that its source was a government agency.")