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Tabieros v. Clark Equipment Co.9/15/1997
n Michigan, there are two theories that will support a finding of negligent design. The first theory is based on a failure to warn. This theory renders the product defective even if the design chosen does not render the product defective. This warning includes the duty to warn about dangers regarding the intended uses of the product, as well as foreseeable misuses. If, however, the manufacturer is not aware of the defect until after manufacture or sale, it has a duty to warn upon learning of the defect; if there exists a point-of-manufacture duty to warn, a post manufacture duty to warn necessarily continues upon learning of the defect.
The other, more traditional means of proving negligent design questions whether the design chosen renders the product defective, i.e., whether a risk-utility analysis favored an available safer alternative. In such a complaint, the focus of any duty begins with whether the product was defective when it left the manufacturer's control.
Because a prima facie case is established once the risk-utility test is proven, we are persuaded that it is unnecessary and unwise to impose or introduce an additional duty to retrofit or recall a product. Focusing on postmanufacture conduct in a negligent design case improperly shifts the focus from point-of-manufacture conduct and considers postmanufacture conduct and technology that accordingly has the potential to taint a jury's verdict regarding a defect.
Id. 538 N.W.2d at 326, 328-29, 333-34 (citations and footnotes omitted) (emphasis added).
Similarly, in Habecker v. Copperloy Corp., 893 F.2d 49 (3d Cir. 1990), the widow and child of a forklift operator, who was crushed to death when the forklift he was backing off a ramp overturned and fell on top of him, brought a product liability action -- based, inter alia, on theories of strict liability and negligence -- against, inter alia, Clark Equipment Company, the manufacturer of the forklift. The forklift had not been designed with (and did not contain) any operator restraints, such as seat belts. Accordingly, the plaintiffs "alleged that the forklift was defective because . . . it had no operator restraints (seat belts)." Id. at 50. At trial, the jury returned a defense verdict in Clark's favor on the seat belt issue.
On appeal, the Habecker court reversed the verdict and remanded for a new trial on the operator restraints issue on the basis that the district court had erred in refusing to allow the plaintiffs to adduce the testimony of an expert witness regarding "the causal relation between the lack of operator restraints and operator injury ." Id. at 51. The following analysis is especially pertinent to the issue before us:
The plaintiffs . . . contend that the district court erred . . . by eliminating the issue of retrofitting the forklift with a seat belt.
Id. 893 F.2d at 53-54 (footnote omitted).
See also Burke v. Deere & Co., 6 F.3d 497, 503, 509-10 (8th Cir. 1993) ("In a case alleging negligent failure to warn, . . . there may be a continuing duty to warn of dangers which become known after the product has entered the stream of commerce. . . . [However,] we find nothing to indicate that an independent cause of action exists in Iowa under a duty to redesign and/or retrofit. . . . Moreover, . . . a duty to recall is not generally incorporated in a duty to warn." (Citations and footnotes omitted.)); Wallace v. Dorsey Trailers Southeast, Inc., 849 F.2d 341, 344 (8th Cir. 1988) ("Appellants . . . argue that [the defendant] was negligent by failing to retrofit the allegedly defective [equipment]. . . . Appellants concede that at present, Missouri law does not impose a duty to retrofit; they
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