RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0021A (6th Cir.) File Name: 00a0021a.06
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________
; LAURA HOLLISTER, Plaintiff-Appellant, 98-1660 AMERICAN COMMUNITY MUTUAL INSURANCE > COMPANY, Intervenor, v. DAYTON HUDSON Defendant-Appellee. CORPORATION,
1
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 96-73142—John Feikens, District Judge. Argued: August 4, 1999 Decided and Filed: January 13, 2000
1 2 Hollister v. Dayton Hudson Corp. 98-1660
Before: SILER and GILMAN, Circuit Judges; GRAHAM, District Judge.* _________________ COUNSEL ARGUED: Steven P. Handler, McDERMOTT, WILL & EMERY, Chicago, Illinois, for Appellant. Barry B. Sutton, HARVEY & KRUSE, Troy, Michigan, for Appellee. ON BRIEF: Steven P. Handler, Charles M. Gering, McDERMOTT, WILL & EMERY, Chicago, Illinois, Robert P. Lynn, Jr., Mineola, New York, for Appellant. Barry B. Sutton, Dennis M. Goebel, HARVEY & KRUSE, Troy, Michigan, for Appellee. ______________________ AMENDED OPINION ______________________ RONALD LEE GILMAN, Circuit Judge. Laura Hollister, a citizen of Michigan, was severely burned when the shirt that she was wearing ignited upon contact with a hot electric burner on her apartment stove.1 She brought a lawsuit against Dayton Hudson Corporation, the Minnesota-based owner of the department store where the shirt was purchased, alleging negligence and breach of the store’s implied warranty of merchantability. Her claims were based on allegations that (1) the shirt’s design rendered it unreasonably dangerous, and (2) the shirt failed to carry a warning as to its extreme flammability. The district court granted Dayton Hudson’s
* The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by designation. 1 This case is the subject of an earlier opinion. See Hollister v. Dayton Hudson Corp., 188 F.3d 414 (6th Cir.1999). Upon Hollister’s petition for rehearing, the panel is persuaded that the earlier opinion should be withdrawn and this opinion substituted. 98-1660 Hollister v. Dayton Hudson Corp. 3
motion for summary judgment, concluding that Hollister had not established a prima facie case of design defect under Michigan law, and that any duty to warn was obviated by the open and obvious nature of the alleged defect. Contrary to the decision of the district court, we believe that Hollister has adduced sufficient evidence to allow a reasonable juror to conclude that the shirt sold by Dayton Hudson was defective because of its failure to carry a warning regarding its extreme flammability. Although Hollister has failed to show any negligence on Dayton Hudson’s part regarding this alleged defect, she need only establish a prima facie case that the shirt was defective and that it caused her injuries in order to pursue her claim for breach of implied warranty. We therefore AFFIRM the district court’s entry of summary judgment on Hollister’s negligence claim, REVERSE its entry of summary judgment on Hollister’s breach of implied warranty claim to the extent that the claim is based upon a failure to warn, and REMAND for further proceedings consistent with this opinion. I. BACKGROUND A. The accident In November of 1995, Hollister was a business student at Northwestern University in Evanston, Illinois. On November 4, 1995, she attended a business-school party with her friend Jerome Joliet. She later returned to her apartment accompanied by another friend, Diarmuid O’Connell, at approximately 1:45 a.m. the next morning. According to O’Connell, Hollister was intoxicated when the two left the party. O’Connell departed from Hollister’s apartment at approximately 2:10 a.m. Hollister has no memory of subsequent events. The next thing that she can recall is seeing herself in the mirror at approximately 9:30 a.m. on November 5. Realizing that she was injured, Hollister phoned her parents in Michigan. According to Hollister’s parents, she repeated the words “fire, burner, pasta.” Hollister’s parents asked her for the number 4 Hollister v. Dayton Hudson Corp. 98-1660 98-1660 Hollister v. Dayton Hudson Corp. 21
of a friend and she supplied O’Connell’s. After leaving a on Hollister’s breach of implied warranty claim to the extent message on O’Connell’s machine, Hollister’s father asked his that the claim is based upon a failure to warn, and REMAND daughter for another number, and she supplied Joliet’s. Mr. for further proceedings consistent with this opinion. Hollister then left a message on Joliet’s machine. Joliet arrived at Hollister’s apartment at about 10:00 a.m. that day, discovered that Hollister was severely burned, and called 911. Evanston Fire Department paramedics came immediately and treated Hollister. One of the paramedics found that the right front and rear burners of Hollister’s stove were glowing red when he arrived. There was a bowl of cooked pasta in the sink, and a pot sitting on the stove between the burners. The fire department report concludes that the fire began in the kitchen. At the request of the fire department, the United States Bureau of Alcohol, Tobacco, and Firearms (BATF) assisted in investigating the accident. The BATF report also indicates that the fire began in the kitchen. It concludes that the accident most likely occurred when Hollister reached for something in the cabinet above the stove (the door to which was open) and her shirt-tail, which was hanging loose, brushed against the burner and ignited. Hollister next apparently attempted to smother the flames on the counter, where burned cloth was found. The report states that there was evidence that she then attempted to extinguish the flames with water from the bathtub. There was evidence that after doing so, Hollister rested on her bed, where more burned clothing and body fluids were found. Small remnants of Hollister’s shirt, a brown and black plaid button-down, were found. Hollister’s mother stated that she had purchased this shirt for Hollister at a Dayton Hudson’s department store six years earlier. Hollister was also wearing a T-shirt and bra under the large plaid shirt at the time of the accident. The report concludes that “the cause of this fire should be classified as accidental caused by ignition of the victim’s clothing by the stove burner while she was cooking.” Hollister was brought to Evanston Hospital, where she was treated for third-degree burns over fifty-five percent of her body. She was later transferred to Loyola Hospital in 20 Hollister v. Dayton Hudson Corp. 98-1660 98-1660 Hollister v. Dayton Hudson Corp. 5
jury is entitled to consider any other relevant evidence on the Chicago, where she stayed until December 21, 1995. After issue.” Howard, 601 F.2d at 138. treatment at Loyola, Hollister was transferred to the University of Michigan Medical Center in Ann Arbor, This last holding is particularly significant because Dayton Michigan, where she remained until April 17, 1996. Hudson cites the fact that the exemplar fabric met federal flammability standards as a factor supporting the grant of As a result of her burns, Hollister has undergone summary judgment. Although such evidence would comprehensive skin grafting to most of her upper body, as undoubtedly be relevant evidence for Dayton Hudson to well as plastic and reconstructive surgery. She remains introduce at trial, it is not dispositive of Hollister’s claim at profoundly disfigured. Her medical expenses at the time of this stage. See id.; Wilson v. Bradlees of New England, Inc., the district court’s ruling in May of 1998 amounted to 96 F.3d 552 (1st Cir. 1996) (holding that evidence of a approximately $980,000. garment meeting the federal flammability standards was relevant to, but not dispositive of, plaintiff’s claims). B. Procedural background We therefore conclude that Hollister has established a On March 27, 1996, Hollister’s parents filed suit in the prima facie case against Dayton Hudson for breach of implied Circuit Court of Wayne County, Michigan. Named as warranty based upon a failure to warn, and that the district defendants were Dayton Hudson (the parent company of the court erred in entering the grant of summary judgment on this department store where the shirt was purchased), Ralph claim. This is not to say, however, that Hollister will Lauren (the company that Hollister’s mother originally necessarily prevail at trial. She will still have to convince a believed was the manufacturer of the shirt), Banana Republic jury that the shirt was considerably more flammable than a (the retailer of the T-shirt), Victoria’s Secret (the retailer of reasonable consumer would expect. See Glittenberg, 491 the bra), and General Electric (the manufacturer of the stove). N.W.2d at 212-13. She will also have to convince a jury that The complaint alleged that the shirt was defective because it the lack of a warning on the shirt was a proximate cause of was extremely flammable and because it did not provide a her injuries. See Moll v. Abbott Labs., 506 N.W.2d 816, 824 warning of this condition. On July 11, 1996, the case was (Mich. 1993). Finally, if Hollister does establish liability, the removed to the United States District Court for the Eastern damages that Hollister sustained will be diminished in District of Michigan on the basis of diversity of citizenship. proportion to any amount of negligence attributed to her by Pursuant to a July 31, 1997 motion, Hollister was substituted the jury. See M.C.L. § 600.2949; Karl v. Bryant Air for her parents as the plaintiff. Conditioning Co., 331 N.W.2d 456, 462 (Mich. 1982) (holding that the Michigan comparative negligence statute On August 1, 1997, the district court held a status applies to breach of implied warranty actions). These hurdles conference with all of the parties. At that time, the court are likely to be significant ones. We are convinced, however, noted that in the 16 months that the case had been in that Hollister has the right to proceed to the next stage of the existence, a “whole lot of nothing” had taken place. At that litigation. point, Hollister had arranged for no expert witnesses other than a consultant who was going to conduct tests of various III. CONCLUSION fabrics. The court directed Hollister to secure and disclose her experts, pursuant to Rule 26 of the Federal Rules of Civil For all of the reasons set forth above, we AFFIRM the Procedure, by September 1, 1997. A discovery deadline of district court’s entry of summary judgment on Hollister’s October 31, 1997 was also set. negligence claim, REVERSE its entry of summary judgment 6 Hollister v. Dayton Hudson Corp. 98-1660 98-1660 Hollister v. Dayton Hudson Corp. 19
On September 1, 1997, Hollister submitted reports pursuant that the robe’s unexpected flammability was a proximate to Rule 26 from the following four experts: David Hall cause of her injuries. See id. at 592. (textile expert), Edmund Knight (expert on cause and origin of the fire), Anna Dutka (economic damages expert), and The Fourth Circuit’s decision in Howard v. McCrory Corp., Alan Hedge (stove design expert). Dr. Hall’s report stated 601 F.2d 133 (4th Cir. 1979), is also instructive. In that case, that he was still looking for “exemplar” fabric identical to the a products liability action was brought by a mother whose rayon used in the shirt in question, and that in his opinion the infant son was fatally burned when his pajamas and bathrobe fabric was dangerously flammable. The report identifies the inexplicably caught fire. The mother sued the manufacturer fabric as 100% rayon, loosely woven with 1.5 denier threads. and the retailer of the infant’s pajamas, as well as the manufacturer and the retailer of his bathrobe, alleging strict Dr. Hall offered no opinion as to the feasibility of using a liability, negligence, and breach of implied warranty. different fabric to construct a similar shirt, and acknowledged Judgment as a matter of law was entered in favor of the two that he had no expertise in the use of fabrics in clothing. He retailers. The Fourth Circuit reversed for two distinct reasons, initially testified that the flammability test promulgated by the both of which are relevant to the instant case. Consumer Products Safety Commission (CPSC), set forth in 16 C.F.R. § 1610, determines whether a fabric is The district court had entered judgment in favor of Kresge, “unreasonably dangerous.” The regulation’s purpose is “to the retailer of the pajamas, because the plaintiff presented no reduce danger of injury and loss of life by providing, on a expert testimony regarding the pajamas’ flammability, only national basis, standard methods of testing and rating the offering eyewitness testimony that the pajamas had ignited flammability of textiles and textile products for clothing use, quickly and burned very rapidly. In reversing, the Fourth thereby discouraging the use of any dangerously flammable Circuit wrote: clothing textiles.” 16 C.F.R. § 1610.1. Because their products passed the CPSC flammability test, Banana Republic It has been held that, even where all the standard tests and Victoria’s Secret were eventually dismissed as demonstrated that a product was not dangerously defendants. Although Dr. Hall never tested the shirt remnants inflammable for use by infants, it is perfectly permissible pursuant to 16 C.F.R. § 1610, Dayton Hudson’s expert did. for the jury to find that the product was dangerously The fabric passed the test. Despite this fact, Dayton Hudson inflammable from . . . proof that the product “ignited remained as a defendant. By October of 1997, Hollister had easily, (and) burned rapidly and intensely with a high dismissed all of the other remaining parties. degree of heat.”
In his deposition on October 31, 1997, Dayton Hudson’s Howard, 601 F.2d at 137 (citing LaGorga, 275 F. Supp. at causation expert, John Campbell, acknowledged that he had 378). located an “exemplar” shirt composed of fabric identical to that used in the shirt involved in the accident. Hollister’s McCrory, the retailer of the bathrobe, was granted judgment counsel subsequently purchased identical shirts to the one that notwithstanding the verdict on the grounds that remnants of Campbell had identified, and gave them to Dr. Hall for the robe had been tested and found to meet the standards of examination and testing. Class I fabrics under the CPSC flammability test. The Fourth Circuit reversed this holding as well, reasoning that Dr. Hall determined that the characteristics of the exemplar “[c]ompliance with federal standards, while plainly relevant, fabric were substantially identical to the shirt that Hollister is not conclusive on the issue of McCrory’s liability and the 18 Hollister v. Dayton Hudson Corp. 98-1660 98-1660 Hollister v. Dayton Hudson Corp. 7
expert, the exemplar fabric ignited instantly and burned had been wearing at the time of the accident. He then completely within six seconds. Of the fourteen comparison conducted a test comparing the exemplar fabric with fourteen samples, eleven failed to ignite at all when passed over a other fabrics. The test utilized a stove-top electric burner set burner at the same rate. The three samples that did ignite at 1100-1160 degrees, and involved sweeping 3.5 by 10-inch were another 100% rayon sample and a rayon-polyester blend, strips of the various fabrics across the burner. Hall then timed both of which burned in about twelve seconds, and a piece of the rate of ignition and burning. The exemplar fabric ignited newspaper, which burned in four seconds. Thus the exemplar immediately, and burned completely within six seconds. fabric burned twice as quickly as other rayon fabrics, and only Eleven of the fourteen non-exemplar samples failed to ignite two seconds slower than a piece of newspaper. A reasonable at all. The three samples that did ignite were another 100% juror could conclude from this evidence that the shirt’s rayon sample, a rayon-polyester blend (both of which took manufacturer had a duty to know that the shirt possessed a about twelve seconds to burn completely), and a piece of latent danger, and a corresponding duty to warn consumers of newspaper (which burned in four seconds). that danger. At the close of discovery, Dayton Hudson moved for Once a plaintiff establishes that a product is summary judgment. One ground focused upon the defective—whether because of its design or because of a requirement that a plaintiff such as Hollister must prove the failure to warn—she must then demonstrate that this defect effectiveness of a proposed alternative design. In response, was a proximate cause of her injuries in order to make out a Hollister acknowledged that she would not be calling an claim for breach of implied warranty. See Piercefield, 133 expert witness on the effectiveness of an alternative design. N.W.2d at 134. Hollister’s mother stated in an affidavit that She claimed that this was a question of fact for the jury that she would not have bought the shirt for her daughter if she did not require expert testimony. The district court had known that the shirt was extremely flammable, and subsequently held a hearing on January 5, 1998 to clarify Hollister herself maintained in an affidavit that she would not Hollister’s position, stating as follows: have worn the shirt in question if she had possessed such knowledge. A reasonable jury could find, based on this THE COURT: —you say that this is so clear, the risk of evidence, that the shirt’s failure to carry a warning was a severe injury from a highly flammable fabric is so proximate cause of Hollister’s injuries. manifest, that no expert testimony is needed. That— that really made me open my eyes. You mean we can simply In Deffebach v. Lansburgh & Bro., 150 F.2d 591 (D.C. Cir. impanel a jury, and you can put on your proof without 1945), the D.C. Circuit addressed a fact pattern quite similar any testimony to show this? to the one before us. That case involved an implied warranty ... claim against a non-manufacturing retailer who sold the MR. HANDLER: We mean it. plaintiff a chenille robe. Ignited by a spark as the plaintiff attempted to light a cigarette, the robe caught fire and burned The district court then presented the parties with a list of six explosively. The district court granted judgment as a matter requirements necessary to establish a prima facie case of of law to the retailer. On appeal, the D.C. Circuit reversed, design defect under Michigan law. holding that judgment as a matter of law was inappropriate because the plaintiff had produced evidence to satisfy both After briefing by both parties, the district court granted elements of an implied warranty claim—she had Dayton Hudson’s motion for summary judgment on May 12, demonstrated that the robe was dangerously flammable and 1998. Hollister timely filed her notice of appeal to this court. 8 Hollister v. Dayton Hudson Corp. 98-1660 98-1660 Hollister v. Dayton Hudson Corp. 17
II. ANALYSIS exercise reasonable care to inform consumers of the danger. See Glittenberg, 491 N.W.2d at 212-13 (holding that the A. Standard of review dangers of diving headfirst into a manufacturer’s aboveground swimming pool were open and obvious). If a We review de novo the district court’s grant of summary product’s danger is open and obvious to a reasonable judgment. See, e.g., Smith v. Ameritech, 129 F.3d 857, 863 consumer, the manufacturer has no duty to warn. See id. at (6th Cir. 1997). Summary judgment is appropriate when 213. In such a case, a retailer who sells the product cannot be there are no issues of material fact in dispute and the moving found liable for breach of implied warranty because the party is entitled to judgment as a matter of law. See FED. R. product is not defective. CIV. P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable The district court disposed of Hollister’s failure to warn inferences in favor of the non-moving party. See Matsushita argument in a cursory manner, concluding that the danger Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, inherent in having clothing come into contact with a hot stove 587 (1986). The judge is not “to weigh the evidence and is “open and obvious.” We find this analysis to be determine the truth of the matter but to determine whether oversimplified. It is true that a reasonable person would there is a genuine issue for trial.” Anderson v. Liberty Lobby, know that clothing is flammable; the question, however, is Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial is one of degree. See Michigan Mut. Ins. Co. v. Heatilator presented when there is sufficient “evidence on which the jury Fireplace, 366 N.W.2d 202, 205 (Mich. 1985) (holding that could reasonably find for the plaintiff.” Id. at 252. even if a reasonable consumer would know that covering the vents on a fireplace presented a “vague danger,” a jury might B. The district court properly disposed of Hollister’s still reasonably find that a warning was required to give the claims based on negligence, but erred in failing to consumer “a full appreciation of the seriousness of the life- separately consider Hollister’s breach of implied threatening risks involved”). A consumer might reasonably warranty claim be expected to know that a rayon shirt will catch fire more easily and burn more quickly than a shirt made of heavy Hollister’s original complaint asserts two distinct causes of flannel. An ordinary consumer would have no way of action—negligence and breach of implied warranty. The knowing, however, that a particular rayon shirt was former is a tort action and the latter is an action for breach of substantially more combustible and flammable than another contract. In evaluating Hollister’s claims, however, the rayon shirt. Cf. LaGorga v. Kroger, 275 F. Supp. 373 (W.D. district court did not distinguish between the two. The district Penn. 1967) (denying a retailer’s motion for judgment as a court’s summary disposition of Hollister’s negligence claim matter of law where the plaintiff charged the retailer with was proper. Hollister failed to offer any evidence of breach of implied warranty for selling him a jacket that was negligence on Dayton Hudson’s part, such as proof that the unusually flammable and lacked a warning, noting that “[t]he retailer knew of the shirt’s extreme flammability or that it had public cannot be expected to possess the facilities or technical received consumer complaints about the shirt in the past. An knowledge to apprehend inherent or latent dangers”), aff’d, implied warranty claim, on the other hand, does not require a 407 F.2d 671 (3d Cir. 1969). plaintiff to prove that the retailer was negligent—only that the product was defective and that the defect caused her injury. Hollister presented credible evidence that the exemplar fabric burned explosively, like newspaper, and that other Hollister has not been particularly helpful in bringing this comparable fabrics did not. In tests conducted by Hollister’s distinction to the court’s attention. Indeed, in her appellate 16 Hollister v. Dayton Hudson Corp. 98-1660 98-1660 Hollister v. Dayton Hudson Corp. 9
safer manner. The category of failure to warn, on the other brief, she incorrectly states that “[u]nder Michigan law, hand, applies to a product that may be designed in an negligence and breach of warranty claims for design defect in optimally safe way, but nevertheless bears a latent danger that product liability cases are judged by the same standard, i.e., a would not be apparent to an ordinary consumer. For example, pure negligence risk-utility test.” Thus, Hollister has argued without a warning as to its weight restrictions, a highway her two causes of action as if the negligence standard bridge might be legally “defective” even if it was designed governed both. safely and was in perfect working order. See Wilson v. Bradlees of New England, Inc., 96 F.3d 552, 559 (1st Cir. Hollister’s and the district court’s confusion as to the 1996). Similarly, a prescription drug might be well designed appropriate legal standard most likely stems from the fact and effective for its intended use, but it would nevertheless be that, in cases where a seller is also the manufacturer, legally “defective” if it lacked appropriate warnings as to its Michigan courts have observed that claims of negligence and proper dosage and possible side effects. See Restatement breach of implied warranty are, for all intents and purposes, (Second) Torts § 402A, comment h (1972); see also Barry v. identical. The reason for this confluence is that a plaintiff Don Hall Labs., 642 P.2d 685, 688 (Or. Ct. App. 1982) alleging breach of implied warranty on the part of a seller (holding that properly manufactured vitamins might still be must show that the purchased product was defective. That found defective due to the absence of a warning as to their showing, in turn, requires proof that the product’s high sugar content). manufacturer acted negligently, typically by omitting a safety feature or in failing to give warning of a latent danger. A suit Under Michigan law, design defect claims and failure to for breach of implied warranty against a seller who is also the warn claims are governed by distinct analyses. See Gregory manufacturer will therefore require the same showing of v. Cincinnati Inc., 538 N.W.2d 325, 329 (Mich. 1995) negligence on the defendant’s part as an ordinary products (holding that a manufacturer’s failure to warn can support a liability suit against a manufacturer. See Prentis v. Yale Mfg. product liability claim “even if it the design chosen does not Co., 365 N.W.2d 176, 186 (Mich. 1984); Smith v. E. R. render the product defective.”); Glittenberg v. Doughboy Squibb & Sons, Inc., 245 N.W.2d 52, 56 (Mich. Ct. App. Recreational Indus., 491 N.W.2d 208, 216 (Mich. 1992) 1976), aff’d, 273 N.W.2d 476 (Mich. 1979) (cautioning that “design defect analysis must not be used to evaluate failure to warn claims”). In the present case, the When the defendant is a non-manufacturing seller, most relevant difference between the two claims is that a however, the two analyses diverge. See Prentis, 365 N.W.2d prima facie case of design defect requires that the plaintiff at 186 n.30 (“Thus . . . the only time the distinction between propose a reasonable alternative design, but a failure to warn implied warranty and negligence may have any significance claim does not. Thus Hollister’s failure to propose a safer, in design defect cases, is in determining the liability of a seller alternative design for the rayon blouse, which was fatal to her who is not also the manufacturer of a product.”). Because the design defect claim, does not support a grant of summary existence of a defect is generally determined by the negligent judgment against her claim for failure to warn. conduct of the manufacturer, a retailer may be held liable for breaching its implied warranty of merchantability by selling In order to establish, under Michigan law, that a product is a defective product, even if the retailer’s conduct is wholly defective due to a failure to warn, a plaintiff must demonstrate free from negligence. See Johnson v. Chrysler Corp., 254 that a manufacturer (1) had actual or constructive knowledge N.W.2d 569, 571 (Mich. Ct. App. 1977) (reversing a directed of the alleged danger, (2) had no reason to believe that verdict in favor of the retailer of a defective power punch consumers would know of this danger, and (3) failed to press, even though the retailer was not negligent); Piercefield 10 Hollister v. Dayton Hudson Corp. 98-1660 98-1660 Hollister v. Dayton Hudson Corp. 15
v. Remington Arms Co., 133 N.W.2d 129, 134 (Mich. 1965) shooting above the shoulders of an exemplar shirt that her (holding that a breach of implied warranty claim relating to expert burned in its entirety. Hollister’s demonstration that the sale of a defective shotgun shell could be established the shirt would burn quickly and intensely, coupled with the without proof of negligence on the part of the retailer). Cf. CPSC’s report on hospitalization from clothing burns, creates Marcon v. Kmart Corp., 573 N.W.2d 728 (Minn. Ct. App. a question of fact for the jury on the issues of severity and 1998) (affirming a verdict against the non-negligent seller of foreseeability. a sled, which was found to be defective because it lacked a warning advising riders not to kneel). As yet another alternative ground for its holding, the district court opined that Hollister’s own actions would preclude her As noted above, Hollister has not argued at any stage of this from relief based on her alleged misuse of the clothing. litigation that her implied warranty claim requires distinct Manufacturers, however, have a duty to warn consumers of treatment from her negligence claim. Hollister’s implied the dangers associated with foreseeable misuses of the warranty claim, however, has been properly raised both below products they produce. See Shipman v. Fontaine Truck and on appeal—it was simply analyzed under the wrong legal Equip. Co., 459 N.W.2d 30, 33 (Mich. Ct. App. 1990) standard. Ultimately, it is the district court’s responsibility to (reversing a trial court’s entry of judgment notwithstanding apply the proper legal standard, regardless of the the verdict in favor of the manufacturer of a feed truck, where misconceptions by the parties. See Industrial Development there was evidence suggesting that the manufacturer Bd. v. Fuqua Indus. Inc., 523 F.2d 1226, 1240 (5th Cir. 1975) reasonably could have foreseen the unsafe modification that (“[A] trial court has the ultimate responsibility to apply the the plaintiff made to the truck). As noted above, the CPSC law to the uncontested facts before it.”); Troupe v. Chicago, study at least demonstrates the existence of a genuine issue of D. & G. Bay Transit Co., 234 F.2d 253, 261 (2d Cir. 1956) material fact as to whether accidentally brushing a stove (Frank, J., concurring) (“A litigant surely has the right to burner, as Hollister did, is a foreseeable misuse of clothing. assume that a federal trial judge knows the elementary substantive legal rules, long established by the precedents, 2. Hollister successfully established a prima facie case and that therefore the judge will act accordingly, without that the shirt was defective because it lacked a prompting by the litigant’s lawyer.”). We will therefore warning regarding its extreme flammability independently consider and apply the proper analysis to Hollister’s implied warranty claim. See Empire Life Ins. Co. Hollister’s second basis for asserting that the shirt was v. Valdak Corp., 468 F.2d 330, 334 (5th Cir. 1972) (“Here, defective, and therefore sold in breach of Dayton Hudson’s however, it is not one of the parties seeking to advance a new implied warranty of merchantability, is her claim that the shirt theory, rather, it is this court, in fulfillment of its duty to apply required a warning regarding its extreme flammability. the correct law, that is seeking to put the case back on the Dayton Hudson counters that for Hollister to make out a right track.”). failure to warn claim, she must first show that the shirt was defectively designed. It therefore maintains that Hollister’s C. Breach of implied warranty inability to establish a prima facie case of design defect is necessarily fatal to her claim. We find that Michigan law is A plaintiff seeking to recover on a claim against a retailer contrary to Dayton Hudson’s argument. for breach of implied warranty must establish two elements: (1) that the product was sold in a defective condition, and (2) Conceptually, the two claims identify different types of that the defect caused her injury. See Piercefield, 133 N.W.2d defect. A design defect is the mark of a poorly designed product, which could reasonably have been designed in a 14 Hollister v. Dayton Hudson Corp. 98-1660 98-1660 Hollister v. Dayton Hudson Corp. 11
report indicates that kitchen ranges are a common source of at 134. Hollister contends that the shirt in question was ignition in accidents involving burning apparel. In fact, the defective because it was made of a fabric that was report refers to precisely the type of accident that occurred in dangerously flammable (design defect) and because it should the present case: have carried a warning advising wearers of its extreme flammability (failure to warn). Kitchen ranges were the second most common ignition source. Ignition occurred most frequently when adults 1. Hollister failed to establish a prima facie case of were leaning against or reaching across a range while design defect wearing shirts/blouses, when children were climbing on or playing with ranges while wearing pajamas, and when a. The district court applied the proper elderly women were cooking while wearing robes or analysis to Hollister’s allegations of housecoats. design defect Also included in the report are statistics showing the Hollister argues on appeal that the district court held her to number of injuries, by age group, that result from shirts’ a higher burden than is required by the Michigan courts. The igniting on stove tops. In concluding that Hollister had not district court restated the Michigan law on design defect as presented sufficient evidence regarding the magnitude of the requiring Hollister to produce evidence showing: risk involved, the district court noted that the CPSC report was from 1985, four to five years before Hollister’s mother (1) that the severity of the injury was purchased the shirt in question. It did not explain, however, foreseeable by the manufacturer; why the date of the report invalidates it as evidence. The (2) that the likelihood of occurrence of her district court then analyzed the statistics contained in the injury was foreseeable by the CPSC report and determined that there would be 123 injuries manufacturer at the time of per year to persons in Hollister’s age group that might match distribution of the product; the severity of the injury that she incurred. It concluded, (3) that there was a reasonable alternative without citation or explanation, that “these are small numbers design available; indeed.” The district court thus judged the sufficiency of the (4) that the available alternative design evidence presented, which is generally a question for the jury, was practicable; not the court. See Zettle, 998 F.2d at 360. (5) that the available and practicable reasonable alternative design would The CPSC report also considered the severity of injuries have reduced the foreseeable risk of that result when clothing catches fire: “Over one third of all harm posed by defendant’s product; clothing-related burn victims were hospitalized. This fact and becomes dramatic when compared to the 4 percent (6) that omission of the available and hospitalization rate for all consumer product-related injuries practicable reasonable alternative . . . and the 8 percent reported for all burn injuries.” design rendered defendant’s product Furthermore, Hollister presented evidence that the fabric in not reasonably safe. question would ignite upon contact with an electric burner and be consumed within seconds. In addition to the test Our review of the district court’s formulation convinces us comparing strips of fabric, her videotape shows the flames that its restatement of Michigan law was correct. The test applied by Michigan courts to design defect claims is set out 12 Hollister v. Dayton Hudson Corp. 98-1660 98-1660 Hollister v. Dayton Hudson Corp. 13
in Reeves v. Cincinnati, Inc., 439 N.W.2d 326, 329 (Mich. the Michigan Supreme Court affirmed the grant of a directed Ct. App. 1989). Steps one and two of the district court’s verdict for the defendant when the plaintiff offered no test—the foreseeability of serious injury and the likelihood information as to the practicability of a seatbelt on a forklift that injury would occur—echo the language of Reeves, which truck that had overturned on its operator. held that “a prima facie case of a design defect premised upon the omission of a safety device requires first a showing of . . . In sum, Dr. Hall never presented a “proposed alternative the likelihood of occurrence of the type of accident . . . and design” with any specificity. His only recommendation was the severity of injuries sustainable from such an accident.” that the weight of the fabric should have been heavier. 439 N.W.2d at 329. Ignoring for the moment his silence on the practicality of such a suggestion, Dr. Hall also admitted “that he could not Steps three, four, and five required Hollister to present articulate the exact effect on flammability of the changes” he evidence that a reasonable design alternative was available, proposed. The district court thus properly dismissed that it was practicable, and that it would have reduced the risk Hollister’s claims to the extent that they were premised on the of the accident at issue in the case. These requirements shirt’s allegedly defective design. See Zettle v. Handy Mfg. parallel the second half of the Reeves test, which calls for “a Co., 998 F.2d 358, 362 (6th Cir. 1993) (affirming a grant of showing of alternative safety devices and whether those summary judgment and holding that the plaintiff had failed to devices would have been effective as a reasonable means of present sufficient evidence concerning the effectiveness of a minimizing the foreseeable risk of danger.” Id. proposed alternative design for a power washer under Michigan law). Finally, step six of the district court’s test, requiring that the product must be unreasonably dangerous in the absence of the c. The district court’s evaluation of other factors alternative design, simply states the logical conclusion of was inconsistent with Michigan law steps one through five. We therefore conclude that the district court applied the correct test in adjudicating Dayton Hudson’s Rather than rest its decision solely on Hollister’s failure to motion for summary judgment based upon design defect. meet the district court’s formulation of requirements 3 through 6 of Michigan’s risk-utility test, the district court also b. Hollister failed to establish a prima facie ruled against her on the alternate grounds of severity case of design defect (requirement 1), foreseeability (requirement 2), and the alleged misuse of the shirt (one of Dayton Hudson’s Hollister’s claim of design defect is primarily based upon affirmative defenses). Because the district court’s opinion the tests conducted by Dr. Hall, in which the exemplar fabric was published, see 5 F.Supp. 2d 530 (E.D. Mich. 1998), and and fourteen other fabric samples were dragged across a hot because we conclude that its rulings on these alternate burner at a prescribed rate. Those tests indicate that the grounds were erroneous, we discuss each of them below. exemplar fabric was significantly more flammable than other fabrics. Hollister presented no evidence, however, as to the In Parts VI.A.1. & 2. of its opinion, the district court availability of alternative fabrics when the shirt was concluded, as a matter of law, that a manufacturer could not manufactured, the cost of manufacturing the shirt with such have foreseen either the likelihood of the accident suffered by fabrics, or the effect of a fabric change upon the wearability, Hollister or the severity of injuries that would result from durability, or appearance of the fabric. Her failure to submit such an accident. Hollister, however, presented credible such evidence is similar to the situation in Owens v. Allis- evidence to the contrary. A 1985 CPSC report sets forth Chalmers Corp., 326 N.W.2d 372, 379 (Mich. 1982), where statistics on injuries resulting from apparel catching fire. The