Appeal from Wayne, Harry J. Dingeman, Jr., J.
Leave to appeal denied, 397 Mich .
J. H. Gillis, P. J., and Allen and M. J. Kelly, JJ. J. H. Gillis, P. J., concurred. M. J. Kelly, J. (concurring).
1. Products Liability -- Torts -- Negligence -- Implied Warranty -- Strict Liability.
A plaintiff in a products liability case may proceed under the tortious theories of negligence and implied warranty, but not under a theory of strict liability.
2. Products Liability -- Defect Attributable to Manufacturer -- Causal Connections.
A plaintiff may recover against a manufacturer of a defective product only when he is able to prove a defect attributable to the manufacturer and a causal connection between the defect and the injury or damage of which he complains.
3. Products Liability -- Negligence -- Defective Products -- Reasonably Prudent Person.
A defect is established, in a products liability case proceeding under a theory of negligence, by proofs that the manufacturer failed to do what a reasonably prudent person would do or did what a reasonably prudent person would not have done under the circumstances.
4. Products Liability -- Defective Products -- Implied Warranty.
A defect is established, in a products liability case proceeding under a theory of implied warranty imposed by law, by proof that the product is not reasonably fit for the use intended, anticipated, or reasonably foreseeable.
5. Products Liability -- Defective Products -- Unreasonably Dangerous Conditions -- Strict Liability in Tort.
A product must be not only defective, but must also be in an unreasonably dangerous condition, in order to hold a manufacturer liable for injury caused by the product under the theory of strict liability in tort.
6. Products Liability -- Instructions to Jury -- Strict Liability in Tort -- Implied Warranty -- Prejudice.
A jury instruction, in a products liability case, which included instructions on both strict liability in tort and implied warranty was not prejudicial to a defendant manufacturer where under the facts the jury could find liability under either theory and any prejudice which might have occurred by reason of the jury interpreting strict liability as liability without fault was precluded by the trial court's definition of strict liability.
7. Negligence -- Contributory Negligence -- Breach of Warranty.
Contributory negligence, as characteristically understood in the common law of negligence, is not a defense to a breach of warranty action.
8. Products Liability -- Negligence -- Implied Warranty -- Misuse of Products.
A defendant's negligence is not pertinent to a products liability action based upon implied warranty; however, a defendant may offer evidence to establish misuse of a product.
9. Products Liability -- Misuse of Products -- Proximate Causes -- Defects.
A plaintiff in a products liability case may not recover if the proximate cause of the plaintiff's injury is found to have stemmed from his own conduct, such as misuse of the product, and not from the product's lack of fitness, because the proofs have failed to establish a causal connection between the defect and the injury.
10. Products Liability -- Misuse of Products -- Defects -- Implied warranty -- Proximate Causes.
The fact that a plaintiff's misuse of a product concurred with a defect in the product to cause injury to the plaintiff will not bar recovery under a theory of implied warranty if the failure of the manufacturer to provide a product reasonably fit for the use intended or reasonably foreseen is found to be a proximate cause of the injury, unless it can be said that the plaintiff voluntarily and unreasonably proceeded to encounter the known risk.
11. Damages -- New Trial -- Judge's Discretion -- Court Rules.
The question of damages is one of fact for the jury, but under court rules a party may be granted a new trial on the basis that damages awarded were inadequate or excessive; the grant or denial of a new trial is within the discretion of the trial court, and a grant or denial of a new trial grounded upon inadequate damages will be reversed on appeal only where the trial court has palpably abused its discretion (GCR 1963, 527.1, 527.6).
12. New Trial -- Legally Recognized Reasons -- Judge's Discretion -- Support for Decision.
The question to be determined when considering whether a trial court abused its discretion in granting a new trial, where the reason given for granting the new trial is legally recognized, is whether by any reasonable interpretation of the record there is support for the decision.
13. New Trial -- Appeal and Error -- Partial New Trial -- Circumstances of Case.
Appellate courts do not generally favor the practice of granting partial new trials in personal injury cases because liability and damage issues are commonly interwoven; however, a partial new trial is justified where the circumstances of ...