
    VINCENT v ALLEN BRADLEY COMPANY
    Docket No. 78-2147.
    Submitted January 3, 1980, at Detroit.
    Decided February 20, 1980.
    Leave to appeal applied for.
    Frances Vincent was injured while attempting to remove a piece of scrap metal from a power press. She and her husband Edward Vincent brought an action for damages against Allen Bradley Company, the manufacturer of a foot switch which activated the press, Federal Press Company, the manufacturer of the press, and Robert F. Brown Machinery, Inc., the seller of the press. The matter was tried on the theory of breach of implied warranty. A judgment of no cause of action was entered by the Wayne Circuit Court, Andrew DiMaggio, J. Plaintiffs appeal, alleging, among other things, that the trial court erroneously instructed the jury regarding misuse of the machine. Held:
    
    The instructions given by the trial court in effect presented the theory of contributory negligence rather than misuse. While misuse of a product is a defense to a products liability claim based upon breach of implied warranty, contributory negligence is not available as a defense to such an action. The instructions were erroneous because they allowed the jury to interpret them as denying recovery if they found Mrs. Vincent to have been negligent.
    Reversed and remanded.
    1. Products Liability — Breach of Warranty — Contributory Negligence.
    Contributory negligence is not a defense to a products liability suit based on breach of warranty.
    2. Products Liability — Breach of Warranty — Defenses — Misuse of Product.
    A cause of action for breach of implied warranty is established upon proof of injury caused by a defect in a product that made it not reasonably fit for its intended or reasonably foreseeable use, and although contributory negligence is not a defense, misuse of the product is.
    
      References for Points in Headnotes
    [1] 63 Am Jur 2d, Products Liability § 97.
    Contributing negligence or assumption of risk as defense to action for personal injury, death, or property damage resulting from alleged breach or implied warranty. 4 ALR3d 501.
    [2] 63 Am Jur 2d, Products Liability § 101.
    
      
      Cicinelli, Mossner, Majoros & Alexander, P.C. (by Eugene D. Mossner and William S. Pearson), for plaintiffs.
    
      Harvey, Kruse & Westen, P.C. (by Dennis M. Goebel), for Allen Bradley Company.
    
      Kerr, Russell & Weber (by C. Kenneth Perry, Jr.), for Federal Press Company.
    Before: T. M. Burns, P.J., and Bashara and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Plaintiffs appeal as of right from a verdict of no cause of action entered by a Wayne County Circuit Court jury in their products liability suit.

Plaintiff Frances Vincent was injured while op- . erating a power press used to stamp out sheet metal parts. The accident occurred when Frances left her position as press operator, walked to the back of the machine and attempted to remove a piece of scrap from the die. The press ram activated while her hand was in the die area, mutilating her fingers.

In their complaint, plaintiffs averred negligent design and breach of implied warranty against defendant Federal Press Company, the manufacturer of the press, defendant Allen Bradley Company, the manufacturer of the foot switch used to activate the press, and defendant Robert F. Brown Machinery, Inc., the seller of the press. Defendants’ answers denied negligence or breach of implied warranty. Defendant Bradley asserted, as special and affirmative defenses, the alleged contributory negligence and misuse of the product by plaintiff Frances Vincent and the intervening negligence of others. Plaintiffs then moved to dismiss the negligence count and to preclude reference to contributory negligence. This motion was granted without objection.

At trial, plaintiffs offered testimony to show that the foot pedal that activated the press was ultra-sensitive, insufficiently guarded, and could be triggered by slight lateral pressure, whereas Federal safety standards mandated activation through downward pressure only. Plaintiffs’ expert also testified that the press was deficient in that it lacked a barrier guard, a device which would surround the die space.

Defendants took the position that the press and footswitch were safe if not misused. To this end, defendant introduced testimony that Frances Vincent was acting against plant policy in reaching into the press and that tongs were provided for this very purpose. Furthermore, defendants introduced expert testimony to the effect that it was the employer’s responsibility to provide barrier guards for the die space. Defendants’ theory, then, was that the press, as manufactured, was reasonably fit for its intended purposes but unsafe as set up by the employer and as operated by plaintiff Frances Vincent.

The trial court gave the following instruction on misuse of the press:

"The Defendants have claimed misuse of the press by Mrs. Vincent and her employer in this case. In the absence of a special reason to expect otherwise, the maker is entitled to assume that this product will be put to a normal use for which the product is intended and he is not subject to liability when it is safe for all such uses and harm results only because it is mishandled in a way which he has no reason to expect or has been used in some unusual or unforseeable [sic] manner.

"Now, in order to prove misuse, the Defendant must prove that Mrs. Vincent used the press for a purpose that was not reasonably forseeable [sic] to the manufacturer or in a manner that was not reasonably forseeable [sic] to the manufacturer, that the misuse by Mrs. Vincent concurred with the defective condition of the press in order to cause the injury and that Mrs. Vincent voluntarily and unreasonably proceeded to encounter a risk which was known to her at the time.”

As stated, the jury found no cause of action against any of the defendants.

Plaintiffs present three allegations of error in this appeal, only one of which we find warrants reversal. Plaintiffs claim that, in the instant factual context, the aforestated trial court instruction on misuse was erroneous. We agree.

Plaintiffs grounded their action solely on breach of implied warranty. Contributory negligence is not a defense to a products liability suit based on breach of warranty. Kujawski v Cohen, 56 Mich App 533, 542; 224 NW2d 908 (1974), lv den 394 Mich 772 (1975), Dooms v Stewart Bolling & Co, 68 Mich App 5, 16-17; 241 NW2d 738 (1976), lv den 397 Mich 862 (1976). A cause of action for breach of implied warranty is established upon proof of injury caused by a defect in the product that made it not reasonably fit for its intended or reasonably foreseeable use. Elsasser v American Motors Corp, 81 Mich App 379; 265 NW2d 339 (1978). Although contributory negligence is not a defense, misuse of the product is. Barefield v LaSalle Coca-Cola Bottling Co, 370 Mich 1; 120 NW2d 786 (1963), Parsonson v Construction Equipment Co, 386 Mich 61; 191 NW2d 465 (1971).

Defendants assert that plaintiff Frances Vincent’s conduct, in reaching into the die area of the punch press to take out a piece of scrap metal, constituted a misuse of the product, thereby shielding them from liability. The trial court’s instructions echo this theory. We find that this theory, and the instructions presenting it, are more closely aligned with the defense of contributory negligence than they are with the defense of misuse. Clearly, it was negligent for Frances Vincent to place her hand in the die space, but this is not to say that it was a misuse of the product. In fact, the product was designed with just such a use foreseen, which accounts for the necessity of the foot switch and die barrier guards.

We find this cause to be controlled by the recent Supreme Court decision in Tulkku v Mackworth Rees Div of Avis Industries, Inc, 406 Mich 615; 281 NW2d 291 (1979). In that case, Tulkku also injured his hand reaching into a power press to dislodge a piece of metal stuck in the die space. He brought a products liability action, claiming that defendants had negligently provided an inadequate safety device. The trial court instructed on contributory negligence and this Court affirmed the jury’s finding of no cause of action, 76 Mich App 472; 257 NW2d 128 (1978). The Supreme Court reversed.

Expanding upon its holding in Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), the Court held that there could be no defense of contributory negligence to a claim that the defendant provided inadequate safety devices. The Court explained, 406 Mich at 622-623:

"To allow defendants in this case to invoke the protection of the contributory negligence doctrine would be tantamount to subverting the very safety concerns that the Koenig [v Patrick Construction Corp, 298 NY 313; 83 NE2d 133 (1948)] and Funk courts extolled as of paramount importance. Such a position might allow a manufacturer to escape its duty of due care, as the New Jersey Supreme Court has noted:

" 'It would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against. We hold that under the facts presented to us in this case the defense of contributory negligence is unavailable.’ Bexiga v Havir Manufacturing Corp, 60 NJ 402, 412; 290 A2d 281 (1972). (Citations omitted.)”

We find the same logic in order herein. The instant plaintiffs’ claim was based on the inadequacy of the safety devices guarding the foot pedal and the absence of safety devices guarding the die space. Though this claim was couched in warranty language, defendants countered with essentially a contributory negligence defense. Thus, the anomalous situation spoken to in Tulkku would still present itself in the instant factual situation.

The only feature distinguishing Tulkku and the case at bar is that the former involved a negligence-products liability complaint, whereas this case represents a warranty-products liability complaint. This difference is insubstantial. Products liability based on negligence or on warranty are very similar concepts. In the context of adequacy of warning, the Supreme Court has called the two theories identical. Smith v E R Squibb & Sons, Inc, 405 Mich 79, 88-90; 273 NW2d 476 (1979). In fact, MCL 600.2945; MSA 27A.2945, which became effective on December 31, 1978, abandons the dual concept in favor of a unitary cause of action labeled simply "products liability”.

The issue raised herein has become the topic of a series of magazine and law review articles as of late. In one such law review article, Dean Aaron Twerski suggests:

"In attempting to delineate the appropriate role for the affirmative defenses which arise from plaintiffs interaction with the product, it is first necessary to focus on the defendant’s duty in manufacturing a reasonably safe product. The duty of producing a non-defective product under strict liability has been placed on the manufacturer.”

Thus, where the harm that has befallen a plaintiff is directly within the risk of the defect against which the manufacturer has a duty to guard, as here, the plaintiff should not be denied recovery due to his own negligence. See Timmerman v Universal Corrugated Box Machinery Corp, 93 Mich App 680; 287 NW2d 316 (1979). Because the trial court’s instructions on misuse have allowed for just such a jury interpretation, we reject them as erroneous.

Reversed and remanded for a new trial. 
      
       In pertinent part, defendants averred: that plaintiff Frances Vincent had operated this particular press in the past and had asked for a die-set man’s assistance when similar problems had occurred on prior occasions; that she knew that company policy required the use of tongs to clear the die-space area; and that a co-employee was in an area near the foot pedal when the accident occurred and might have negligently activated the switch to operate the press while Frances Vincent was clearing the die space.
     
      
       Woods, The Quickening March of Comparative Fault, Trial Magazine, Vol 15, No 11, p 26, 28-29, November, 1979; Products Liability Task Force, a Bar-Related Annual Report, 58 Mich Bar Journal 524-525 (1979).
     
      
       Twerski, From Defect to Cause to Comparative Fault — Rethinking Some Product Liability Concepts, 60 Marquette L Rev 297 (1977).
     