Opinion
Docket Nos. 68314, 68315.
Decided February 9, 1983. Leave to appeal applied for.
Joselyn, Rowe, Jamieson Grinnan, P.C. (by James A. Callahan), for plaintiff.
Hibbs Lewis, P.C. (by Don Hibbs and Terry S. Welch), for defendants.
Moore, Sills, Poling, Wooster Sinn, P.C. (by James M. Prahler), for third-party defendant Broad Crane and Engineering Service Company.
Before: BRONSON, P.J., and M.F. CAVANAGH and N.J. KAUFMAN, JJ.
ON REMAND
In the original appeal of this case we held, inter alia, that the trial court did not err in refusing to allow the defense of comparative negligence to go to the jury where the plaintiff had alleged that the defendant breached its duty of care and caution while employing the plaintiff in an inherently dangerous activity. Brown v Unit Products Corp, 105 Mich. App. 141, 153-154; 306 N.W.2d 425 (1981). Defendants Unit Products Corporation and H.F. Campbell Company sought leave to appeal to the Supreme Court. By order of that Court, their application for leave to appeal was held in abeyance pending the Court's decision in Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich. 29; 323 N.W.2d 270 (1982). Now, in lieu of granting leave to appeal, the Supreme Court has remanded the case to this Court for reconsideration in light of the subsequent decision in Hardy, supra.
In our decision in Brown, supra, we concluded that the defense of comparative negligence would only be available if the defense of contributory negligence had been available, prior to the Supreme Court's holding in Placek v Sterling Heights, 405 Mich. 638; 275 N.W.2d 511 (1979). This ruling is no longer viable in light of the Supreme Court's recent holding that the defense of comparative negligence is available as a defense in cases where the defense of contributory negligence was not formerly available. Hardy, supra, p 38.
In Hardy, the Supreme Court was faced with the issue of whether the defense of comparative negligence was available when a worker alleged negligence in the failure of his or her employer to provide adequate safety devices on the job. The Court concluded that the public policy of promoting safety in the workplace would be enhanced by the application of the principles of comparative negligence. 414 Mich. 39. The Court based its conclusion upon two principal considerations: (1) if a worker is charged with some responsibility for his or her own safety-related behavior, it will give him or her a financial incentive to act in a reasonable and prudent fashion; and (2) application of comparative negligence will reward safety-conscious employers, who should not be held liable for damages in excess of the amount causally related to any negligence on their part. 414 Mich. 41. The Court repeated its conclusion in Placek, supra:
"`What pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice.' 405 Mich. 661." 414 Mich. 45.
To hold otherwise, the Court concluded in Hardy, would be clearly unjust.
We are persuaded that Hardy also suggests that the defense of comparative negligence should be available in situations involving inherently dangerous activities. Although the theory behind the inherently dangerous activity doctrine is similar to that of strict liability, the doctrine does not require the imposition of absolute liability. Vannoy v City of Warren, 15 Mich. App. 158, 163; 166 N.W.2d 486 (1968), lv den 382 Mich. 768 (1969), remanded on other grounds 382 Mich. 771 (1969). The fact that the employer in these circumstances may not delegate his or her duty of care and caution need not relieve the worker of the duty to take care in a prudent fashion in the light of known risks and dangers. Here, as in Hardy, the application of comparative negligence principles to workplace negligence situations encourages safer behavior by both employers and workers and results in a more equitable resolution of injuries and damages when concurrent negligence exists on the part of both the employer and the worker.
We thus hold that the trial court erred in refusing to allow the defense of comparative negligence to go to the jury. We reaffirm our holdings with respect to the other issues previously decided. The case is reversed and remanded to the trial court for proceedings consistent with this opinion.
BRONSON, P.J., concurred.
I agree that Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich. 29; 323 N.W.2d 270 (1982), requires us to reverse and remand this case. I concur separately, though, to express my agreement with the late Justice BLAIR MOODY'S opinion in Hardy, 414 Mich. 48 (MOODY, J., dissenting in part).