Walker v. Consumers Power Co.

J. J. Kelley, J. While plaintiff Leola Walker was working as a kitchen supervisor, she sustained severe burns when a gas-fueled broiler exploded. She sued Consumers Power Company and Mr. Gas, Inc., alleging, inter alia, that the defendant power company was negligent in not shutting off the gas, or taking other action, to remedy the dangerous condition resulting from gas escaping into the kitchen, after it had knowledge thereof. The court granted Mr. Gas’s motion for a directed verdict in — 267 — its favor. The jury specifically found that defendant Consumers Power Company had not been negligent. On appeal plaintiff alleges errors in the trial court’s instructions. The judge instructed the jury as follows: "I’m now going to give you some definitions of important legal terms. Please listen carefully to these definitions so that you will understand these terms when they’re used later. "When I use the word negligence, I mean a failure to do something which a reasonably careful person would do. Or the doing of something which a reasonably careful person would not do under the circumstances which you find existed in this case. "It is for you to decide what a reasonable careful person would do or not do under such circumstances. The law is complied with when a gas company or others engage in the transmission or use of gas provided such a protection as will safely guard against any contingency that is reasonably to be anticipated. "The extent of the duty or standard of care is measured in the terms of foreseeability of injury from the situation created. "There is no duty to safeguard against occurrences that cannot be reasonably expected or contemplated. A failure to anticipate and guard against a happening which would not have arisen but for exceptional and unusual circumstances, is not negligence, nor does the law require those maintaining gas facilities to anticipate any possible fortuitous circumstance that might cause injuries. Injurious contacts with those facilities. "When I use the word, ordinary care, I mean the care a reasonably careful person would use under the circumstances which you find existed in this case. "The law does not say what a reasonably careful person would do or would not do under such circumstances. That is for you to decide. "It is the duty of the plaintiff, in connection with this occurrence, to use ordinary care for her safety. It is the duty of the defendant in connection with this occur — 268 — rence to use that degree of care that a reasonably prudent person would have exercised in light of the explosive nature of gas.” Plaintiff claims that these instructions were erroneous for the following reasons: (1) Inasmuch as a dangerous substance — gas—was involved, the court should have instructed on the "higher standard of care test” rather than on the "reasonably careful person test”, and failure so to instruct requires reversal; and (2) the instructions did not cover Consumers’ duty to inspect and stop the leak when notified of the situation. GCR 1963, 516.6(2) requires that pertinent portions of the Michigan standard jury instructions shall be given if they accurately state the law. To the Michigan standard jury instruction on "negligence”, SJI 10.02, the trial judge added: "The law is complied with when a gas company or others engage in the transmission or use of gas provided such a protection as will safely guard against any contingency that is reasonably to be anticipated. "The extent of the duty or standard of care is measured in terms of foreseeability of injury from the situation created. "There is no duty to safeguard against occurrences that cannot be reasonably expected or contemplated. A failure to anticipate and guard against a happening which would not have arisen but for exceptional and unusual circumstances, is not negligence, nor does the law require those maintaining gas facilities to anticipate any possible fortuitous circumstance that might cause injuries. Injurious contacts with those facilities.” and expanded on Consumers’ duty to use ordinary care, SJI 10.15: "It is the duty of the defendant in connection with — 269 — this occurrence to use that degree of care that a reasonably prudent person would have exercised in light of the explosive nature of gas.” In Frederick v Detroit, 370 Mich 425; 121 NW2d 918 (1963), the plaintiff sued after sustaining injuries in a fall while alighting from a bus. The court instructed the jury: "Now, I will say this to you at this point; that the D.S.R. is not liable unless they were negligent. They are not an insurer. They are a common carrier. A common carrier has, in the vernacular, a higher degree, — owes a higher degree of care to its passengers than a person ordinarily owes to another person. Now, that definition is open to question; because the actual definition reads that they have the duty, — anyone has the duty to exercise due care. That is the general test of negligence. Do you exercise due care? And, what do you mean by 'due care’? Due care means that amount of care that a reasonably prudent person would exercise under the circumstances then and there existing. But where the common carriers come into a different category, as it were, is the fact that it is more difficult for a common carrier to measure up to the standard of due care than it is for an ordinary person. The reason for that greater difficulty is precisely because he is a common carrier; he is carrying people for hire; and that makes him something less than an insurer, but someone who should exercise more care, in order to come up to the standard of due care, than an ordinary person. So, the Supreme Court in this state has sometimes referred,— and I personally believe erroneously, — to the fact that the common carrier owes a higher degree of care. I think that that is ultimately what it amounts to, but I think that is a very inaccurate way of stating it. They owe due care just like everybody else, but they have a harder time reaching that standard than the ordinary person does; * * *. "What is negligence? I will define it. Negligence is the failure to use that amount of care that a reasonably prudent person would use under the circumstances. — 270 — That is the standard by which the D.S.R. liability must be measured in this case. You must ask yourselves, did the D.S.R. use the usual amount of care in this case that a common carrier, a reasonable common carrier, would and should use. That is the standard you go by when you are determining liability.” 370 Mich 427-428. In its determination that these instructions were not erroneous the Frederick Court stated: "while the parties assume that the law imposes upon the defendant a duty more stringent than due care, — a duty to exercise a high degree of care, or the highest degree of care, for the safety of its fare-paying passengers, — the law correctly stated requires no more than due care and, therefore, had the challenged instruction imposed a duty burden greater than due care, we would be obligated to strike it down”. 370 Mich 430. Frederick v Detroit, supra, is the foundation of the decision in Laney v Consumers Power Co, 418 Mich 180; 341 NW2d 106 (1983). In Laney, the Court noted that in Frederick the plaintiff claimed, as here, that the trial court erred by failing to give a "high degree of care” instruction. Comparison of instructions in the two cases reveals that those on negligence and due care in special circumstances, given in the case before us, do correctly state the law and are as clear as those given in Frederick. The Frederick instructions, quoted above, were closely scrutinized and found sufficient: "It goes without saying that the language used lacks the clarity to be desired in jury instructions. However, upon close analysis it fairly conveyed to the jury its obligation to determine whether defendant’s actions constituted due care and its right, in making that factual determination, to find that a reasonably prudent common carrier in like circumstances would have exer — 271 — cised greater diligence than would a reasonably prudent person in the pursuit of affairs unlike those of a common carrier. Notwithstanding the understandable difficulties the trial judge experienced in explaining our own prior erroneous rulings, the instruction was a substantially correct statement of the law of the case.” 370 Mich 438-439. The trial judge used the Standard Jury Instructions, tailored to meet the particular circumstances presented in the case. The resulting instructions accurately, fully, and fairly stated the law. They were not misleading. Affirmed. J. H. Gillis, P.J., concurred.