Opposition Brief — Dabish v. Charter Arms Corp.

me Court, U.de

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(y) OCT 28 19868

No. 86-437, JOSEPH — IRs

In The fis

Supreme Court of the United States

a

@ctober Term, 1986

Seana

JUANA DABISH, Executrix of the Estate

of SAM DABISH, JR., a Minor,

Petitioner,

-vs-

CHARTER ARMS CORPORATION,

a foreign corporation,

Respondent.

RESPONSE IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ANTHONY G. ARNONE SUSAN HEALY ZITTERMAN

KITCH, SAURBIER, DRUTCHAS, KITCH, SAURBIER, DRUTCHAS,

WAGNER & KENNEY, P.C. WAGNER & KENNEY, P.C.

Tenth Floor Tenth Floor

One Woodward Avenue One Woodward Avenue

Detroit, Michigan 48226 Detroit, Michigan 48226

Telephone: (313) 965-7461 Telephone: (313) 965-7905

Counsel of Record for Respondent

Interstate Brief & Record Co., Suite 731, David Whitney Building, Detroit, MI 48226

(313) 962-8745

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QUESTIONS PRESENTED

I.

SHOULD THIS COURT GRANT CERTIORARI UPON PETI-

TIONER’S REQUEST WHERE THE UNDISPUTED AND

FULLY DEVELOPED RECORD DEMONSTRATES THERE

WAS NO JUROR MISCONDUCT OR NONDISCLOSURE AND

THAT REMAND TO THE DISTRICT COURT FOR AN EVIDEN-

TIARY HEARING WOULD BE POINTLESS?

II.

SHOULD THIS COURT GRANT CERTIORARI UPON PETI-

TIONER’S REQUEST WHERE PETITIONER HAS FAILED TO

DEMONSTRATE THAT THERE EXISTED AN ISSUE OF FACT

OR ANY POSSIBILITY OF CONFUSION AS TO RESPON-

DENT’S RESPONSIBILITY FOR ITS AGENT’S ALLEGED NEG-

LIGENCE NECESSITATING THE INSTRUCTION TO WHICH

PETITIONER CLAIMS ENTITLEMENT?

ili

TABLE OF CONTENTS

sy bo wees bs ws see we

EE

Opinions and Orders Below ................

EE I ere

Constitutional Provisions Involved ...........

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cummemeny GF Afmument ..............+.6.-

Argument and Reasons for Denying the Writ:

I.

II.

THE COURT OF APPEALS PROPERLY DECLINED

TO REMAND FOR AN EVIDENTIARY HEARING

ON THE ISSUE OF JUROR NONDISCLOSURE AS

THE RECORD ESTABLISHES THERE WAS NO

NONDISCLOSURE OF INFORMATION RESPON-

SIVE TO ANY QUESTION ON VOIR DIRE.

THE COURT OF APPEALS PROPERLY AFFIRMED

THE DISTRICT COURT’S DECISION NOT TO IN-

STRUCT THE JURY THAT THE NEGLIGENCE OF

CORPORATE OFFICERS OR AGENTS IS THE NEG-

LIGENCE OF THE CORPORATION WHERE THIS

WAS NOT AT ISSUE IN THE CASE AND THERE

WAS NO POSSIBILITY OF JURY CONFUSION.

on woes a oe e's

10

13

19

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

Farnarjain v. American Exports Isbrandtsen Lines,

Inc., 474 F.2d 361 (2d Cir. 1973) ........ 13, 15

Federal Crop Ins. Corp. v. Hester, 765 F.2d 723 (8th

Re WE Sons cae cae es ee a 12

Johnston v. Narmore, 1 Mich. App. 160, 164, 134

N.W.2d 837 (1965) affd., 378 Mich. 491, 146

ok 8 | errr eee ee 14

McDonough Power Equipment, Inc. v. Greenwood,

464 U.S. 548, 104 S. Ct. 845, 78 L.Ed.2d 663

PN iol dcks ein ee aw oie oe en Oe 10, 11, 12

Missouri, K.&T. Ry. Co. v. Jackson, 174 F.2d 297

SEE ea dS RK hee ee es 13

Moody v. Pulte Homes, Inc., 423 Mich. 150, 378

Re Rar 15, 16, 17

United States v. Howard, 752 F.2d 220 (6th Cir.

SN ec ee ee ee ee es 12

United States v. Kerr, 778 F.2d 690 (11th Cir. 1985) 11, 12

United States v. Perkins, 748 F.2d 1519 (11th Cir.

ED hee oe ee ee Fe eek Oe Pee eee 12

No. 86-437

In The

Supreme Court of the Gnited States

ee

@ctober Term, 1986

a

JUANA DABISH, Executrix of the Estate

of SAM DABISH, JR., a Minor,

Petitioner,

-vs-

CHARTER ARMS CORPORATION,

a foreign corporation,

Respondent.

RESPONSE IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINIONS AND ORDERS BELOW

On June 28, 1984, the United States District Court for

the Eastern District of Michigan entered a judgment for

respondent Charter Arms Corporation on the jury’s ver-

dict of no cause for action.

On July 30, 1984, the District Court issued an un-

published memorandum opinion and order denying

petitioner's Motion for Judgment Notwithstanding the

Verdict or, Alternatively, for New Trial.

On April 30, 1986, the United States Court of Appeals

for the Sixth Circuit issued an unpublished decision

affirming the judgment entered upon the jury verdict.

2

Petitioner’s Petition for Rehearing was denied June 20,

1986, and the opinion issued as mandate June 30, 1986.

The Text of these opinions is set forth in petitioner's

Appendix.

JURISDICTION

Respondent upon information and belief accepts peti-

tioner’s statement as to jurisdiction.

CONSTITUTIONAL PROVISIONS INVOLVED

No constitutional provisions are involved.

STATEMENT OF THE CASE

Petitioner Juana Dabish in this “products liability

action” unsuccessfully sought to hold the manufacturer

of a revolver, Charter Arms Corporation,’ liable for

injuries suffered by a third party, Sam Dabish, Jr., when

the weapon was deliberately fired by Gordon Osborne,

age 10. The facts and the parties’ relative positions

during the trial were succinctly summarized by the Dis-

trict Court in its July 30, 1984, opinion:

“In [1976], Jesus Moreno shared a home with

Sam and Juana Dabish and their children. On the

evening of December 7, [1976], he returned home

carrying a five-shot .38 caliber revolver manufac-

tured by defendant Charter Arms Corporation

(Charter Arms). Mr. Moreno did not have a

permit for the revolver; it was owned by his

' Charter Arms Corporation has no affiliates or subsidiaries.

~—_—__ + _—-—-_-—--

3

employer, Frank Kuraikuz. Mr. Moreno placed

the weapon on the kitchen table and retired. He

did not unload the revolver or take any other

steps to make it inoperable.

“On the morning of December 8, [1976], Gordon

Osborne, age 10, arrived at the Dabish home for

the purpose of obtaining a ride to school with

Sam Dabish, Jr. Osborne observed the revolver

and, believing it to be a toy, picked it up and

pulled the trigger. The bullet from the loaded

weapon struck Sam Dabish, Jr., in the neck

and severed his spinal cord, rendering him a

quadriplegic.

“On May 10, 1982, a products liability action was

filed by Juana Dabish, executrix of the estate of

Sam Dabish, Jr., against Charter Arms. The com-

plaint alleged counts of negligence and breach of

warranty.

“A jury trial was commenced on June 18, 1984.

The thrust of plaintiff's case as presented at trial

was that, despite defendant’s awareness that re-

volvers couuld fall into the hands of children, it

failed to incorporate an external manual safety

device on its product. Defendant countered that

the revolver actually incorporated four safety

devices: a trigger guard, a trigger pull and a

cylinder which would not open or close when the

hammer was cocked. Further, that the external

manual safety device proposed by plaintiff would

render the weapon unfit for its intended use: the

personal protection of adult consumers and law

enforcement personnel.”

As noted by the District Court with respect to the via-

bility of plaintiff's legal theory:

+

“Additionally, the Court notes that plaintiff's

product liability theory, premised on the tre-

mendous danger of firearms and the great likeli-

hood that such a danger will occur, has been

rejected by the vast majority of courts that have

considered the issue. See, Mavilia v. Stoeger Indus-

tries, 574 F. Supp. 107 (D Mass. 1983), and the

cases cited therein.”

The District Court, however, had declined to grant

respondent’s motions for a directed verdict.

On June 28, 1984, the jury rendered a verdict for

respondent on a special verdict form on which the jury

found no negligence by respondent and, therefore, did

not reach the issues of proximate cause and damages.

Petitioner's primary contention on appeal to the Court

of Appeals for the Sixth Circuit was an allegation of pos-

sible juror misconduct based upon a juror’s revelation

after commencement of deliberations that “her husband

had a pending case”. This occurred in the following

context.

After the commencement of jury deliberations, the

District Court announced that it had been advised that

the jury had reached a verdict in this matter. Counsel

for the parties were then advised of the following

development:

“(THE COURT:] At 2:00 p.m. Mrs. Henson, the

Bailiff, received a note stating: ‘Jury deliberations

are over’ signed by Patricia A. Brooks. So Mrs.

Henson made a call for the parties then.

“At 2:14 p.m. got another note: ‘May I see you?’

Patricia A. Brooks.

“Mrs. Henson, not knowing what it was all about,

saw Mrs. Brooks who is the foreperson of the jury.

‘“—_ »

5

“Now Mrs. Henson, would you state for the

record what Mrs. Brooks said to you? Mrs.

Brooks should have given you a note, but she

didn’t.

“MRS. HENSON: Mrs. Brooks indicated that

after the jury deliberations were over with and

after they had filed all the information necessary,

one of the other jurors mentioned that her hus-

band has a pending case that was coming up July

9. She said she didn’t state what court, what type

of case. I have no idea what exactly is involved

and neither does she and that is it.”

After expressing uncertainty as to what should be done,

petitioner's counsel consulted with his client and re-

turned to eventually request a mistrial after further dis-

cussion with the court. The court denied the request

and, with respect to respondent’s counsel’s indication

that he had been going to ask the court to inquire of the

juror, the court responded “[n]o. I see no reason to do

that. There is nothing that has been indicated to the

court on the recitation made that the court feels would

dictate the necessity of any inquiry.”

In fact, the record has revealed that the indication that

a juror’s spouse had a pending lawsuit would not have

been responsive to any question asked of any juror or

prospective juror on voir dire. As summarized by the

Court of Appeals:

“During the voir dire examination of the prospec-

tive Jurors Mr. Meklin [sic], the lawyer repre-

senting plaintiff Dabish, asked the panel these

questions and received these answers:

“Has any member of the jury or member of

your immediate family ever been involved in

6

accident investigation, accident reconstruction

or claims work?

“JUROR NUMBER 3: Do you mean for like

car accidents?

“*MR. MEKLIR: Yes, they work in the capa-

city where somebody has a claim for injury or

property loss.

“‘TUROR NUMBER 3: My husband had a law-

suit for a car accident. Is that what you meant?

“*MR. MEKLIR: No. My question was: Has

anybody ever worked where they would have

to evaluate claims either for injury or prop-

erty damage?

“‘TUROR NUMBER 3: No.

“*MR. MEKLIR: Has anybody on the jury

ever been involved in any kind of accident

where they were injured? .

“JUROR NUMBER 7: Car accident.

““MR. MEKLIR: When did that occur?

“‘TUROR NUMBER 7: A few summers ago.

“*MR. MEKLIR: What type of injury did you

have?

“‘TUROR NUMBER 7: There was just minor

injuries.

“*MR. MEKLIR: Was there any _ lawsuit

brought?

“JUROR NUMBER 7: No.

“‘TUROR NUMBER 1: I just received an out-

of-court settlement because I was bit by a

junkyard dog.

7

““MR. ARNONE: You have another hand.

“‘JUROR NUMBER 9: Any type of accident

where you were injured?

““MR. MEKLIR: Yes.

“‘JUROR NUMBER 9: About thirty-five years

ago, I was shot with a pellet gun, was hit in

the eye.

““MR. MEKLIR: What kind of injuries did

you sustain?

“‘JUROR NUMBER 9: Lost the eye.

“ad

MR. MEKLIR: You have only vision in one

eye, then?

““‘JUROR NUMBER 9: Yes.

““MR. MEKLIR: That is a serious loss. Would

you in any way be affected in terms of feeling

sympathy for my client who, by the way, has

suffered a tremendous injury, because, just

because of your past experience, without re-

gard to the other evidence that may be brought

out?

“JUROR NUMBER 9: _ I would be objective.’

“Later in the voir dire the lawyer for defendant

Charter Arms asked the panel ‘[h]as any member

of the jury or prospective juror every had a law-

suit filed against them (sic)?’. There was no

response to this question.”

Among petitioner's other claims of error in the Sixth

Circuit which she now seeks to place before this Court is

that regarding the trial court’s declining to instruct the

jury that the negligence of a corporation's officers is the

negligence of the corporation. Petitioner claims that this

instruction was necessary to allow the jury to impute to

8

respondent the alleged negligence of its President, Mr.

David Ecker.

David Ecker testified by deposition during petitioner's

proofs that he had been the President of Charter Arms,

a closely held corporation, since approximately 1977, and

Executive Vice President prior to that. He is also a stock-

holder. Mr. Ecker indicated that the handgun in ques-

tion had been manufactured in 1971 and was designed

and developed for a particular market and particular

use, i.e., for off-duty police or for detectives, or for

home protection. Mr. Ecker, of course, indicated that the

possibility of injury by the weapon falling into the hands

of a child was foreseeable. He also indicated that there

had not been research regarding “childproofing” the

handgun in question. He was not aware of any type of

trigger safety at any time prior to 1971 which would pre-

vent a gun from being discharged if someone pulled the

trigger; however, the gun was designed to prevent it

from being fired accidentally.

During respondent’s proofs Mr. Ecker testified that

there was a way to “childproof” a revolver but that it

would thereby be rendered unfit for its intended use:

“That's by putting a 50 pound trigger pull on a

double action or a single action but then some

adults would not be able to use it, so then the

gun would not be able to do what it is supposed

to do.”

On appeal, the Court of Appeals for the Sixth Circuit

held that petitioner was not entitled to a new trial on the

allegation of juror deception because, quite simply, the

record demonstrated there had been no juror deception:

“Plaintiff Dabish failed to pass the first part of

the test [to obtain a new trial based upon juror

misconduct as set forth in McDonough Power

d

%

9

Equipment, Inc. v Greenwood, 464 U.S. 548, 104 S.

Ct. 548, 78 L.Ed.2d 663 (1984)]. There has been

no showing here that ‘a juror failed to answer

honestly a material question . . .” Plaintiff Dabish’s

real complaint is that the prospective juror failed to

volunteer an answer to a question that was never asked.

This is not a basis for declaring a mistrial.” (Em-

phasis added).

The Court of Appeals rejected petitioner’s claim of

instructional error in its initial opinion and in denying

rehearing because, under the proofs of this cause, there

was “no likelihood . . . that the jury might conclude the

president had been negligent but the corporation itself

had not been.”

SUMMARY OF ARGUMENT

The Court of Appeals properly declined to remand for

an evidentiary hearing upon petitioners’ allegations of

juror misconduct based upon a juror’s revealing that her

spouse had a lawsuit. The record as is and without need

for supplementation by evidentiary hearing conclusively

esiablishes there was no “failure to answer honestly a

material question on voir dire” because there was no

question posed on voir dire regarding lawsuits involving

the jurors’ spouses.

The Court of Appeals properly found no error in the

District Court’s declining to instruct the jury that the

negligence of a corporation’s officer is that of the corpor-

ation where such was self-evident in the context of this

trial and there was no possibility that the jury could

have found the respondent corporation’s president neg-

ligent while the corporation was not.

10

ARGUMENT - REASONS FOR DENYING THE WRIT

F

THE COURT OF APPEALS PROPERLY DECLINED TO RE-

MAND FOR AN EVIDENTIARY HEARING ON THE ISSUE

OF JUROR NONDISCLOSURE AS THE RECORD ESTAB-

LISHES THERE WAS NO NONDISCLOSURE OF INFORMA-

TiON RESPONSIVE TO ANY QUESTION ON VOIR DIRE.

In McDonough Power Equipment, Inc. v. Greenwood, 464

U.S. 548, 104 S. Ct. 845, 78 L.Ed.2d 663 (1984), the

Supreme Court set forth the test for determining when

juror nondisclosure will necessitate a new trial:

“We hold that to obtain a new trial in such a situ-

ation, a party must first demonstrate that a juror

failed to answer honestly a material question on

voir dire, and then further show that a correct

respoiise would have provided a valid basis for a

challenge for cause.” 104 S. Ct. at 850.

The record here establishes that petitioner cannot

satisfy the first of these two prongs, regardless of

whether an evidentiary hearing were to be conducted.

There was no failure to answer honestly a material ques-

tion on voir dire because there was no question posed to

the prospective jurors on voir dire regarding lawsuits

involving their spouses or family. As noted by the Court

of Appeals:

“The jury panel had not been asked any ques-

tions on voir dire about spousal litigation, as

opposed to ‘accident investigation, accident re-

construction or claims work’, and the juror con-

cerned had seen no reason to mention her

husband’s lawsuit earlier. That judgment does

not seem unreasonable, particularly in view of

counsel’s express statement to the jury that he

11

was not inquiring about Juror Number Three’s

husband's car accident lawsuit.

+ + *

“Plaintiff Dabish’s real complaint is that the pros-

pective juror failed to volunteer an answer to a

question that was never asked.”

Petitioner’s reliance on McDonough for the proposition

that the Circuit Court improperly proceeded to the

merits of the issue without first remanding to the Dis-

trict Court for an evidentiary hearing is misplaced. In

McDonough Justice Rehnquist in a footnote was critical of

the Court of Appeals’ addressing and resolving the juror

misconduct issue where it had not been raised before

nor addressed by the District Court at any point,

because “[a]ppellate tribunals are poor substitutes for

trial courts for developing a record or resolving factual

controversies.”

McDonough involved the failure of a juror to respond

affirmatively to a question on voir dire seeking to elicit

information about previous injuries to members of the

juror’s immediate family. It was determined subsequent

to trial that the juror in question in fact had a son who

had been injured in the explosion of a truck tire. It was

because the record did not reveal why the juror failed to

respond that remand for an evidentiary hearing was

appropriate. Here, there was no failure to respond; there

was no question asked.

That an evidentiary hearing is not warranted under

such circumstances was recognized in United States v.

Kerr, 778 F.2d 690 (11th Cir. 1985), cited by petitioner.

There the jurors were asked during voir dire whether

they or family members were employed by or worked

with federal law enforcement agencies of a fire depart-

ment. After the verdict it was learned that one juror,

12

who did not respond to those questions, was married to

a former county law enforcement officer. Affirming the

District Court’s denial of the appellant’s motion for an

evidentiary hearing to determine whether a new trial

was required by McDonough, the Court in Kerr reasoned:

“McDonough involved an absence of response to a

question clearly and directly posed. We have a

different case here. The lawyers in this case did

not ask a question about the jury venire’s relation

to former law enforcement officers. While the

parties in this or any other case are of course

entitled to an impartial jury and to an honest and

straightforward response from potential jurors on

voir dire in order to obtain such a jury, we cannot

put upon the jury the duty to respond to ques-

tions not posed. Had the lawyers wished to

know about relations to former law enforcement

officers they should have asked. They did not.

We affirm the district court’s denial of an eviden-

tiary hearing on this issue.” Id. at 694.

So too here, had petitioner's counsel wished to know

about jurors’ spouse’s lawsuits, he should have asked.

He did not. The Court of Appeals properly declined to

impose upon the jurors here “the duty to respond to

questions not posed.” Id.

Petitioner’s reliance upon United States v. Perkins, 748

F.2d 1519 (11th Cir. 1984); Federal Crop Ins. Corp. v. Hester,

765 F.2d 723 (8th Cir. 1985); and United States v. Howard,

752 F.2d 220 (6th Cir. 1985), is misplaced as in each of

those cases the juror in question erroneously failed to

respond affirmatively to questions clearly and directly

posed. :

Petitioner's one-sentence assertion at the close of her

first argument, that the Sixth Circuit “failed to take into

13

account the possible impropriety which developed when

the bailiff and foreperson had a conversation about the

unidentified juror’s disclosure”, is simply irrelevant. The

only ground for new trial associated with juror miscon-

duct asserted by petitioner at any stage in this matter is

that with regard to nondisclosure during voir dire. Peti-

tioner has never claimed she is entitled to a new trial by

virtue of communications by a juror after commence-

ment of deliberations. Such is obviously irrelevant to the

question of another juror’s alleged misconduct during

voir dire.

II.

THE COURT OF APPEALS PROPERLY AFFIRMED THE DIS-

TRICT COURT’S DECISION NOT TO INSTRUCT THE JURY

THAT THE NEGLIGENCE OF CORPORATE OFFICERS OR

AGENTS IS THE NEGLIGENCE OF THE CORPORATION

WHERE THIS WAS NOT AT ISSUE IN THE CASE AND

THERE WAS NO POSSIBILITY OF JURY CONFUSION.

It is axiomatic that, where the instructions of the court

fairly, substantially, and adequately cover the material

issues in a cause, the court is not required to give addi-

tional requested instructions even though they were a

correct statement of the law. Miss.uri, K.&T. Ry. Co. v.

Jackson, 174 F.2d 297, 301 (10th Cir. 1949). A trial court’s

refusal to give the jury a party’s proferred instruction

will not support reversal unless it is shown by the

appellant that the refusal was legal error (i.e., that the

instruction covers a material issue in the case not other-

wise covered by the instructions), and that the non-

prevailing party’s “substantial rights” were prejudiced.

Fed.R. Civ.P. 61, see Farnarjain v. American Exports

Isbrandtsen Lines, Inc., 474 F.2d 361, 364-365 (2d Cir.

1973). In other words, where the instructions as given

read as a whole “adequately inform the jury on the

14

applicable law reflecting and reflected by the various

evidentiary claims in the particular case” the refusal to

give a supplemental instruction is not reversible error.

Johnston v. Narmore, 1 Mich. App. 160, 164, 134 N.W.2d

837 (1965), affd., 378 Mich. 491, 146 N.W.2d 655 (1966).

Even assuming, arguendo, that the instruction

demanded by plaintiff to the effect that the negligence of

corporate officers or agents is the negligence of the cor-

poration, was a correct statement of law, petitioner's

“substantial rights” could not have been prejudiced here

by virtue of the trial court’s declining to give this

instruction to the jury. Whether the negligence of cor-

porate officers or agents was the negligence of the

corporation was simply not an issue in this case. See

Farnarjain, supra.

There was in the record of this cause absolutely no

factual basis upon which the jury could have concluded

that the President of the corporation, David Ecker, was

negligent while the corporation was not negligent. Mr.

Ecker testified as President of, and on behalf of, the cor-

poration and, as pointed out by petitioner in her brief,

admitted on cross-examination that the circumstances

surrounding and the injury to petitioner’s minor in this

cause were foreseeable by the defendant corporation.

There was absolutely no distinction in the proofs

between the acts or purported negligence of Mr. Ecker

and those of the corporation itself.

Not only was there no factual basis in the proofs at

trial upon which the jury could have found the corpora-

tion non-negligent while at the same time finding Mr.

Ecker to be individually negligent, but there was no

argument to the jury by counsel for either party that

such a distinction should or could be made. There is,

accordingly, no question but that the trial court’s refusal

to instruct the jury that the corporation would be liable

15

for the negligence of Mr. Ecker was not and could not

have been outcome determinative. Regardless of whether

the instruction requested by petitioner was a correct

statement of law, it was irrelevant to any issue in this

cause.

In Farnarjain v. American Exports Isbrandtsen Lines, Inc.,

supra, the Court recognized that an instructional error

with respect to a matter which was not an issue in the

case is not grounds for reversal. In that case the plain-

tiff, who had slipped and fallen on a ship deck, brought

an action predicated on negligence against the vessel

owner. On appeal by defendant from a verdict in favor

of plaintiff, the Court of Appeals agreed that the trial

court had erred in using “substantial factor” language in

defining proximate cause. The Court of Appeals, how-

ever, concluded that such error did not warrant reversal

in that cause was not an issue in the case. There was no

cause of the accident other than the condition of the

deck ever suggested at trial. Under those circumstances,

the Court held that no “substantial rights” of the plain-

tiff were prejudiced by the error in the charge. Here, as

in Farnarjain, the instructional error asserted had no

impact on any issue in the case.

As was held by the Court of Appeals here on rehear-

ing, petitioner’s reliance on Moody v. Pulte Homes, Inc.,

423 Mich. 150, 378 N.W.2d 319 (1985), is misplaced.

The plaintiff in Moody, who had been hired by

defendant Clyde Cinader to haul dirt at a construction

project, was injured while helping a fellow employee,

defendant Cinader’s son Scott, start a bulldozer. The

complaint alleged that defendant Clyde Cinader knew

his son was incompetent and was directly negligent both

in permitting such an individual to operate heavy equip-

ment and in failing adequately to supervise him. The

complaint also alleged that defendant Clyde Cinader

16

was vicariously liable for his son’s negligence under the

respondeat superior principle.

The trial court in Moody failed adequately to apprise

the jury of the plaintiff's theory of the case as required

by Michigan law. This, combined with serious deficiencies

in the substantive charge to the jury, “so unfairly pre-

judiced [the plaintiff] in a materially substantial way” as

to require reversal. 378 N.W.2d at 328.

“Nothing in the court’s abbreviated statement of

the plaintiffs’ theories of liability against Cinader

suggested that it was plaintiff's claim that Cinader

was liable because of his failure to supervise the

work of his employee-son, or because he placed a

dangerous bulldozer on a job site, or because the

law imposes vicarious liability upon an employer

for the negligent act of his employee committed |

within the course of employment. Moreover, |

nothing in the trial court’s substantive instruc- |

tions to the jury concerning the law applicable to

this case suggested, even remotely, that the

asserted negligence of Scott Cinader was attribut-

able to his father-employer Clyde Cinader, or

that recovery could be had against Clyde Cinader

for his primary negligence in failing to supervise

the job or for negligently placing a dangerous

instrumentality on the job site.” 378 N.W.2d at

335-36.

ae nA ll cS? A Renner.

The instructions on vicarious liability requested by the

plaintiff in Moody had a “special significance”, the

Supreme Court said, because the senior Cinader “was

not present at the construction site at the time of the

accident and had no direct involvement in the activities

which ultimately resulted in the plaintiffs injury.” 378

N.W.2d at 335. Furthermore, the Supreme Court noted:

17

“Given the fact that most of the evidence in the

case bearing on the question of active negligence

related to the acts or omissions of Scott Cinader

and very little related to the acts or omissions of

Clyde Cinader, the jurors could not have been

expected to know, without instructions from the

court, that Clyde Cineder could be liable under

the legal fiction of vicarious liability or directly

liable upon proof that he failed to supervise his

employees upon the job site and provided a

dangerous bulldozer for use in their work.” 378

N.W.2d at 336.

Here, on the other hand, there was no possibility of

confusion, no possibility that the jury would conclude

that Mr. Ecker, who clearly spoke on behalf of the cor-

poration, was negligent while the corporation was not.

As the Court of Appeals concluded:

“In the case at bar, by way of contrast to

[Moody], Plaintiff Dabish expressly waived any

requirement that the court give the jury the

plaintiff's particular theories of the lawsuit. (Joint

Appendix, pp. 1002-23). There was no risk, in the

case at bar, that the jury might fail to impute any

negligence of the defendant's president to the

corporation because the president was present at

the accident and the corporation was not. And

we see no likelihood, in the case at bar, that the

jury might conclude that the president had been

negligent but the corporation itself had not been.

“The jury was told, in the case at bar, that:

“‘The Defendant had a duty to use reasonable

care in designing and/or manufacturing the

revolver so as to eliminate all risks of harm

18

Or injury which were unreasonable and |

foreseeable.

““A failure to fulfill that duty is negligence.’

(Joint Appendix, p. 1130).

“Under the facts of the case at bar, and in light of

the charge that was given, the trial court con-

sidered it ‘self-evident’ that Charter Arms Cor-

poration would be liable for any negligence of its

officers or employees in designing or manufac-

turing the revolver with which Sam Dabish, Jr.

was shot. We agree, and we see nothing to the

contrary in Moody v. Pulte Homes.”

Thus, petitioner has demonstrated no basis upon

which certiorari should be granted.

;

i

19

CONCLUSION

Petitioner's Petition for Writ of Certiorari sets forth

(and there exists) no basis for this Court to grant cer-

tiorari in this matter, including but not limited to pur-

suant to this Court’s Rule 17.1(b) and/or 17.1(c).

For these reasons, respondent Charter Arms Corpora-

tion respectfully prays and asks that petitioner’s Petition

for Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit be denied.

Respectfully submitted,

ANTHONY G. ARNONE

KITCH, SAURBIER, DRUTCHAS,

WAGNER & KENNEY, P.C.

Tenth Floor

One Woodward Avenue

Detroit, Michigan 48226

(313) 965-7461

Counsel of Record for Respondent

Charter Arms Corporation

SUSAN HEALY ZITTERMAN

KITCH, SAURBIER, DRUTCHAS,

WAGNER & KENNEY, P.C.

Tenth Floor

One Woodward Avenue

Detroit, Michigan 48226

(313) 965-7905

DATED: October 15, 1986