Opinion
Docket No. 110164.
Decided March 6, 1990. Leave to appeal applied for.
Fielstra, Flynn, Reider, Wierengo Brown, P.C. (by Andrew Wierengo, III), for plaintiff.
Tolly, Fisher Verwys, P.C. (by Mark H. Verwys and David L. Harrison), for defendant.
Before: DANHOF, C.J., and MAHER and HOOD, JJ.
Plaintiff appeals as of right from a judgment of no cause of action following an Ottawa County jury trial. We affirm.
Plaintiff brought a cause of action against defendant for injuries caused by a "wood chipper" machine manufactured by defendant. Plaintiff worked for S H Tree Service for several months prior to his injury. Plaintiff was instructed on how to use the chipper and operated it fifteen to twenty hours per week. He specifically knew that he should not put his feet into the feed chute.
On the day of the incident, plaintiff drove the chipper to the work site. Plaintiff claimed he parked the truck with the chipper attached on a crest of a hill which caused the end of the chute to tilt downward. The lip of the chipper was approximately six to seven inches from the ground. Plaintiff claimed that he picked up a curved tree and threw the trunk end of the tree into the chute. As the tree trunk hit the rotor blades, the tree rotated, caught plaintiff behind his legs, and knocked him to the ground. Plaintiff's foot became snagged on a branch and he was pulled into the chipper, feet first. As a result, plaintiff lost his right foot from above the ankle.
Plaintiff brought suit, alleging that defendant was negligent in failing to install safety devices on the chipper and in failing to provide appropriate warnings regarding the machine's operation. Plaintiff presented evidence that the chipper was unreasonably dangerous when operated on uneven ground and that warnings should have been provided regarding the need to operate the machine on level ground to keep the lip of the chute approximately twenty-seven inches off the ground. Defendant argued that it was impossible for the machine to flip a tree and then pull it and plaintiff into the machine but, rather, that plaintiff had knowingly placed his foot into the feed chute in order to force branches through and had been injured as a result. The jury returned a verdict of "no cause."
On appeal, plaintiff argues that the trial court erred by instructing the jury that a manufacturer of a product is not required to warn of dangers which are open and obvious. We disagree.
The determination whether a jury instruction is applicable and accurately states the law is within the discretion of the trial court. Petrove v Grand Trunk W R Co, 174 Mich. App. 705, 712; 436 N.W.2d 733 (1989). In order for a court to give a requested jury instruction, sufficient evidence must be presented by the party to warrant the instruction. Wincher v Detroit, 144 Mich. App. 448, 456; 376 N.W.2d 125 (1985), lv den 424 Mich. 872 (1986). Jury instructions are reviewed by this Court in their entirety and should not be extracted piecemeal. Niemi v Upper Peninsula Orthopedic Ass'n, 173 Mich. App. 326, 328; 433 N.W.2d 363 (1988). Reversal is not required if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury. Scalabrino v Grand Trunk W R Co, 135 Mich. App. 758, 766; 356 N.W.2d 258 (1984), lv den 422 Mich. 877 (1985). We find that, in viewing the court's instructions in their totality, there was sufficient evidence warranting instructing the jury regarding "open and obvious danger" and that the instruction was an applicable and accurate statement of the law.
On appeal, plaintiff argues that in Owens v Allis-Chalmers Corp, 414 Mich. 413; 326 N.W.2d 372 (1982), our Supreme Court held that the test regarding duty to warn is not whether risks are obvious, but whether they are unreasonable in light of foreseeable injury. Plaintiff's reliance on that case is misplaced because Owens did not reject the long-standing proposition that a manufacturer has no duty to warn of obvious and open dangers. Rather, Owens rejected this Court's holding that a plaintiff must prove a lack of warning of a latent defect to present a prima facie case. Id. at 423. In fact, the Supreme Court expressly stated that Owens was not a "duty to warn" case. Id. at 427. The Court held that open and obvious dangers do not absolutely preclude liability and that determining whether a duty exists requires determining whether the risks were unreasonable in light of the foreseeable injury. Id. at 425. Owens therefore serves as a corrective to the notion that liability does not attach where dangers are patent and obvious.
Since Owens, this Court has upheld the continuing viability of the "open and obvious" test. See Reeves v Cincinnati, Inc, 176 Mich. App. 181, 190; 439 N.W.2d 326 (1989); Bullock v Gulf Western Mfg, 128 Mich. App. 316, 322-323; 340 N.W.2d 294 (1983); Bishop v Interlake, Inc, 121 Mich. App. 397, 406; 328 N.W.2d 643 (1982).
Plaintiff also relies on Horen v Coleco Industries, Inc, 169 Mich. App. 725, 729; 426 N.W.2d 794 (1988). However, the holding in Horen is factually distinguishable because it addressed the question of whether the trial court properly granted summary disposition based on the "open and obvious" test. Id. at 728. In this case, the issue of negligence was not taken away from the jury. Further, the plaintiff in Horen was injured while diving off a manufacturer-supplied deck into a swimming pool, a "normal" use; whereas, in this case, defendant's theory and proofs were that plaintiff was injured due to improper use. Although this Court stated in Horen that the "open and obvious" test does not adequately state the law in Michigan due to its subsequent modification by Owens, it did not state that an instruction based on that test is error. This Court explained:
Although such a determination may be utilized as one factor among others to conclude that the manufacturer has no duty to warn because the product is not unreasonably dangerous, the new test is whether the risks are unreasonable in light of the foreseeable injuries. [ Id. at 729.]
It is nonetheless clear, however, that Horen does not completely preclude utilization of the "open and obvious" analysis as a factor to use in determining liability.
In this case, plaintiff's expert testified that it was obvious that one should not place a foot on the chute of the wood chipper. Plaintiff also testified that the danger of placing a foot on the chute was open and obvious. In addition, there was testimony that plaintiff had been previously warned by his foreman not to use his foot to kick the trees into the chipper.
We find that, where the defendant provides evidence indicating that the plaintiff had specific knowledge of an obvious danger and that the plaintiff caused his own injury by ignoring the danger, it is not error for the trial court to instruct that the defendant does not owe a duty to warn of that "open and obvious" danger. Clearly, in this case, the trial court's instruction did not foreclose the jury's responsibility to address the issue whether, despite the "open and obvious" danger, the hazard was unreasonable in light of the foreseeable injuries.
Affirmed.