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01/26/76 PIPPEN v. DENISON DIVISION ABEX

January 26, 1976

PIPPEN
v.
DENISON DIVISION OF ABEX CORPORATION



Appeal from Wayne, George E. Wicklund, J.

Leave to appeal applied for.

J. H. Gillis, P. J., and Bronson and T. M. Burns, JJ. T. M. Burns, J., concurred. J. H. Gillis, P. J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. Products Liability -- Manufacturer's Liability -- Elements.

The plaintiff in a products liability suit against the manufacturer of an industrial power press must allege and prove that (1) the press was transferred from the manufacturer's possession while in a defective state and (2) as a result of being defective, the product caused personal injury or property damage.

2. Products Liability -- Evidence of Defect -- Circumstantial Evidence.

Proof that a product is defective can be drawn from circumstantial evidence without a showing of a specific demonstrable defect.

3. Evidence -- Causation -- Conjecture Rule.

A case based upon an injury that cannot be accounted for will fail for want of proof where the cause of the injury rests wholly in conjecture; however, this rule should not be extended to deny an injured person a right of action where there is room for balancing the probabilities and for drawing reasonable inferences that are better supported upon one side than the other.

4. Products Liability -- Breach of Warranty -- Evidence -- Age of Product -- Sealed Container -- Jury.

The evidence in a products liability case arising out of an injury caused by a malfunctioning power press was sufficient to support the plaintiff's theory that a defect in the press existed when it left the manufacturer's possession where there was evidence that (1) the press was relatively new when the accident occurred and (2) the control mechanism of the press, which must have caused the malfunctioning, was located in a sealed container; therefore, the trial Judge did not err by instructing the jury on plaintiff's theory of a breach of warranty in the design and manufacture of the press.

5. Judgment -- Remittitur -- Jury Verdict -- Excessiveness.

Remittitur is the procedural process by which a jury verdict is diminished by subtraction; in a typical case, a plaintiff is given an election to remit a portion of the jury verdict or submit to a new trial, after the defendant has moved for a new trial because of an excessive verdict.

6. Judgment -- Remittitur -- Personal Injury Case.

Remittitur can be ordered only if the jury verdict is so excessive as to shock the judicial conscience, and courts are particularly reluctant to disturb jury verdicts in personal injury cases because there is no absolute standard by which damages in personal injury cases can be measured.

7. Judgment -- Jury Verdict -- Personal Injury Case -- Setting Aside Verdict.

A jury verdict in a personal injury case should not be set aside as long as the amount awarded is within the range of the evidence and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries and pain and suffering.

8. Appeal and Error -- Remittitur -- Abuse of Discretion.

A trial Judge's order of remittitur will not be reversed on appeal unless the trial Judge abused his discretion; however, appellate courts have not been slow to find an abuse of discretion where the verdict was within the range of, and supported by, the proofs.

9. Damages -- Per Diem Formula -- Pain and Suffering -- Loss of Consortium.

A per diem formula may be used to calculate damages for pain and suffering and loss of consortium.

Dissent by J. H. Gillis, P. J.

10. Damages -- Future Damages -- Inflation -- Present Worth -- Instructions to the Jury.

A jury may consider the effect of inflation when determining lost wages; however, a trial Judge should instruct the jury to reduce an award ...


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