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In Shears v Pardonnet, 80 Mich. App. 358; 263 N.W.2d 373 (1977), lv den 402 Mich. 906 (1978), this Court stated that Javis adopted the Missouri rule which reverses " `unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation,'" quoting Brown v St Louis Public Service Co, 421 S.W.2d 255, 259 (Mo, 1967).
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Docket No. 31516.
Decided December 22, 1977. Leave to appeal denied, 402 Mich ___.
Appeal from Shiawassee, Peter J. Marutiak, J. Submitted November 8, 1977, at Lansing. (Docket No. 31516.) Decided December 22, 1977. Leave to appeal denied, 402 Mich ___.
Complaint by Lorn E. Shears against George Pardonnet, Margaret Pardonnet, Kenneth Haughton, Avco Corporation, and others, seeking damages for injuries sustained when plaintiff's leg became entangled in an underground feed auger manufactured by Avco Corporation and installed on a farm owned by defendants Pardonnet and Haughton. Judgment for defendants. Plaintiff appeals. Reversed as to Avco Corporation, affirmed as to defendants Pardonnet and Haughton.
Church, Wyble, Kritselis Tesseris (by Thomas H. Hay), for plaintiff.
Fraser, Trebilcock, Davis Foster (by Michael H. Perry and Robert W. Townsend), for defendants Pardonnet and Haughton.
Smith, Haughey, Rice Roegge (by Lance R. Mather), for defendant Avco Corporation.
Plaintiff appeals a judgment entered on a jury verdict for defendants. This action arises out of an incident in which plaintiff, a 15-year-old boy, sustained injuries on defendants Pardonnet's farm. On December 29, 1970, plaintiff, having heard that defendants Pardonnet and Haughton, partners in a dairy farm, were hiring, went to defendants' farm seeking employment. When told that there were no job openings plaintiff, instead of leaving the farm, went to visit his step-uncle who lived on defendants Pardonnet's farm and worked there as a tenant farmer.
After spending the afternoon in his step-uncle's house, plaintiff and his step-cousin left the house after supper to look around the barnyard. Plaintiff, feeling the need to urinate, headed toward a dark area of the barnyard where his leg became entangled in an underground feed auger resulting in severe permanent injuries to his leg. Defendant Avco Corporation was the manufacturer of the auger which was installed on the farm in 1964.
Plaintiff claims defendant Avco's failure to cover the auger with adequate plates, and to install a cut-off switch to make the auger inoperative when the protective cover was out of place, constituted negligence. Plaintiff's first claim of error is the trial court's instruction to the jury that they could find the plaintiff either an invitee, a licensee or trespasser. It was defendant Pardonnet's claim that previously he had forbidden the tenant cousin from going in the area of the premises where plaintiff was injured.
The status of a person on the land of another is ordinarily a question of fact for the jury. Nezworski v Mazanec, 301 Mich. 43; 2 N.W.2d 912 (1942), Hranach v Proksch Construction Co, 69 Mich. App. 540; 245 N.W.2d 345 (1976). It cannot be said that the evidence demonstrated plaintiff was a licensee or invitee as a matter of law.
Since hiring an employee is part of a business enterprise, plaintiff could be deemed to be an invitee if defendant Pardonnet had made any type of overture to the general public regarding the hiring of employees.
"A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." 2 Restatement Torts, 2d, § 332(3), p 176.
However, upon being advised that there was no work available plaintiff did not leave the property but remained for the purpose of visiting his step-uncle and cousin. His status of invitee would last only as long as he remained on the property within the scope of that status.
"The possessor of land is subject to liability to another as an invitee only for harm sustained while he is on the land within the scope of his invitation. Thus an invitee ceases to be an invitee after the expiration of a reasonable time within which to accomplish the purpose for which he is invited to enter, or to remain. Whether at the expiration of that time he becomes a trespasser or a licensee will depend upon whether the possessor does or does not consent to his remaining on the land:" 2 Restatement Torts, 2d, § 332, Comment l, p 181.
If plaintiff was a guest or licensee of his cousin he could gain no better right to enter the defendants' property than his cousin. Thus, a jury could find that plaintiff's cousin was forbidden to be in the area where plaintiff was injured and plaintiff through this relationship could be considered a trespasser.
We conclude that the status of plaintiff is one dependent on the facts to be determined by the jury and find that the trial court did not err in instructing the jury on this point.
Plaintiff also contends that the court committed error in giving defendant Avco's requested instruction No. 10 following the giving of SJI 25.21 and 25.23 on implied warranty. Avco's requested instruction No. 10 reads as follows:
"If the manufacturer does everything necessary to make a machine function properly for the purpose for which it was designed, if the machine is without any latent defect and if its functioning creates no danger or peril that is not known at the time, then the manufacturer has satisfied the law's demand.
"We have not yet reached that state where the manufacturer is under the duty of manufacturing a machine accident-proof or foolproof."
The first paragraph of requested instruction No. 10 is a clear misstatement of the law in Michigan. The test for assessing a manufacturer's liability to persons injured by their product is whether the risk to the plaintiff is unreasonable and foreseeable by the manufacturer, not whether the risk is patent or obvious to the plaintiff. Casey v Gifford Wood Co, 61 Mich. App. 208, 218; 232 N.W.2d 360, 364-365 (1975), Coger v Mackinaw Products Co, 48 Mich. App. 113; 210 N.W.2d 124 (1973).
In Javis v Board of Education of the School District of Ypsilanti, 393 Mich. 689, 700; 227 N.W.2d 543 (1975), the Supreme Court issued a strong endorsement of the Michigan Standard Jury Instruction. In that case they adopted the Missouri Rule regarding deviation or modifications of the standard instructions by a trial court, quoting Brown v St Louis Public Service Co, 421 S.W.2d 255, 259 (Mo, 1967), as follows:
"Accordingly, where there is deviation from an applicable MAI (Missouri Approved Instruction) instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation."
In the present case SJI 25.21 and 25.23 as given were correct and adequately covered the law. It was the defendant's requested instructions which misstated the law and requires us to reverse and remand for a new trial.
Plaintiff's final contention of error is the trial court's exclusion from evidence of certain safety standards. The trial court excluded the safety standards of the International Labor Office because they were promulgated after sale of the auger.
Many jurisdictions, including Michigan, Coger v Mackinaw Products Co, supra, now allow safety standards to be admitted at trial as evidence of prevailing community standards. However, most states also require that the standards must have been promulgated prior to the production or construction of the device in question. George v Fox West Coast Theatres, 21 Ariz. App. 332, 337; 519 P.2d 185, 190 (1974), Dominick v Brockton-Taunton Gas Co, 356 Mass. 669; 255 N.E.2d 370 (1970), Lemery v O'Shea Dennis, Inc, 112 N.H. 199, 201; 291 A.2d 616, 618 (1972).
The rationale behind the rule is that subsequently promulgated standards may simply reflect a new consensus in the industry rather than a codification of the prevailing view in the industry at the time the product in question was manufactured, and thus, such standards are not really relevant to the case. This is the accepted view in Michigan. See Carreras v Honeggers Co, Inc, 68 Mich. App. 716; 244 N.W.2d 10 (1976).
We conclude the trial court's exclusion was not erroneous.
Two other standards that were excluded from evidence were the documents containing an official set of orders by the California Department of Industrial Relations specifying certain safety devices that had to be installed in auger-type devices in California and the safety standards of the American Society of Agricultural Engineers (A.S.A.E.). Both standards were in effect at the time the auger in question was sold. This ruling is erroneous. The California standard should have been admitted to show the state of the art at the time the auger was sold. The jury could consider this evidence in deciding which safety devices the defendant Avco knew or should have known were feasible at the time the auger was sold. Merchants National Bank of Aurora v Elgin, Joliet Eastern R Co, 49 Ill.2d 118, 125; 273 N.E.2d 809, 813 (1971).
The A.S.A.E. recommendations also should have been admitted in the evidence upon proper foundation, since they were promulgated prior to sale of the auger and do establish a reliable indicator of the prevailing opinion of the industry concerning the safety devices which should be included on augers.
Reversed as to Avco Corporation, affirmed for defendants Pardonnet and Haughton. Costs to plaintiff against Avco and to defendants Pardonnet and Haughton.