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01/27/76 DENOLF v. FRANK L JURSIK COMPANY

January 27, 1976

DENOLF
v.
FRANK L JURSIK COMPANY



Fitzgerald, J. Kavanagh, C. J., and Williams, Levin, Coleman, and Lindemer, JJ., concurred with Fitzgerald, J. Ryan, J., took no part in the decision of this case.

SYLLABUS BY THE COURT

1. Evidence -- Negligence -- Repairs After Injury -- Third Persons -- Policy.

The rule that evidence of repairs, change of conditions, or precautions taken after an accident is not admissible as evidence of negligence before the accident or as an admission of negligence is grounded primarily in the policy that owners would be discouraged from attempting repairs that might prevent future injury if such evidence could be introduced against them, but the policy consideration is absent where imposition of liability on the person taking remedial action is not sought.

2. Evidence -- Products Liability -- Negligence -- Repairs After Injury -- Third Persons.

Admission of evidence of installation of a safety device on equipment after a plaintiff was injured by the equipment in a trial for damages arising out of the injury was not erroneous where the evidence was not introduced for the purpose of establishing the negligence of the company which undertook the remedial action, the repairing company was not a party to the suit and was not prejudiced in any way by the admission of the evidence, the evidence was otherwise relevant, admission of the evidence would not offend policy considerations favoring encouragement of repairs, and the repairs were not undertaken at the direction of a party plaintiff so that it did not constitute a self-serving, out-of-court declaration by that party.

3. Trial -- Pleading -- Pretrial Statements -- Admissions.

A statement of a fact by a defendant in a products liability suit which is contained in the defendant's pretrial statement is not an admission because the pretrial statement is not a pleading within the meaning of a court rule concerning admissions of facts by pleading (GCR 1963, 606).

4. Trial -- Pretrial Summary -- Admissions of Facts.

A factual statement in a pretrial statement by a defendant in a products liability suit which was corrected at the pretrial conference and which was not included in the trial court's pretrial summary did not control the subsequent course of the proceedings where there was no unfair surprise of the plaintiff attributable to the defendant making the statement when the actual facts were disclosed shortly before trial and the statement was not an admission of fact made in a pleading (GCR 1963, 301.3, 606).

The opinion of the court was delivered by: Fitzgerald

Plaintiff Adhemar Denolf, a driver for the Borden Company, was injured by a motorized lift mounted on his milk truck when his hand was crushed between the lift platform and the frame of the truck. Plaintiff brought an action for damages against the Frank L. Jursik Company alleging breach of warranty of fitness and negligent installation of the lift. Todco Division of Overhead Door Corporation was added as a third-party defendant upon stipulation of the parties. Plaintiff's expert witness testified that a simple safety guard on the lift would have prevented the plaintiff's injuries. Over Jursik's objections, the jury was allowed to view the plaintiff's truck and photographs of the truck showing a safety guard which was installed by the Borden Company after the injury. Todco filed a pretrial statement which said that the lift was manufactured by Todco, but the statement was corrected at the pretrial conference so that the identity of the manufacturer was not conceded. Shortly before trial, it was discovered that the lift was manufactured by the Watson-Atlas Division of H. S. Watson Company before that division was acquired by Todco. No evidence was introduced at trial regarding an alleged contractual assumption by Todco of the manufacturer's liability. A jury in Wayne Circuit Court, William J. Beer, J., by a special verdict, assessed damages against Jursik and Todco. The Court of Appeals, V. J. Brennan, P. J., and Quinn and Carland, JJ., reversed without a new trial as to Todco and reversed and remanded as to Jursik (Docket Nos. 14520, 14521). Plaintiff appeals. Held:

1. The rule that excludes evidence of repairs, change of conditions, or precautions after an accident is inapplicable to subsequent repairs made by one not a party to the action where the evidence is otherwise relevant, admission of the evidence would not offend policy considerations favoring encouragement of repairs, and the remedial action is not undertaken at the direction of a party plaintiff so that it does not constitute a self-serving, out-of-court declaration by that party. The circuit court did not err in allowing the jury to view the photographs and vehicle.

2. Jursik was not subjected to unfair surprise attributable to Todco by the disclosure shortly before trial that Todco did not design, manufacture, or sell the lift.

3. A pretrial statement is not a pleading within the meaning of GCR 1963, 606 relating to admissions in pleadings, and an admission contained in a party's pretrial statement which is not incorporated into the trial court's pretrial ...


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