Hollister v. Dayton Hudson Corp.

• Decision Date: 04 August 1999
• Citation: 201 F.3d 731
• Parties: (6th Cir. 2000) Laura Hollister, Plaintiff-Appellant, American Community Mutual Insurance Company, Intervenor, v. Dayton Hudson Corporation, Defendant-Appellee. 98-1660 Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 731

201 F.3d 731 (6th Cir. 2000)

Laura Hollister, Plaintiff-Appellant, American Community Mutual Insurance Company, Intervenor, v. Dayton Hudson Corporation, Defendant-Appellee.

98-1660

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 4, 1999

Decided and Filed: January 13, 2000

Rehearing and Suggestion for Rehearing En Banc Denied March 2, 2000.

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 96-73142--John Feikens, District Judge. [Copyrighted Material Omitted] Steven P. Handler, Charles M. Gering, McDERMOTT, WILL & EMERY, Chicago, Illinois, Robert P. Lynn, Jr., Mineola, New York, Gary C. Rogers, Fraser, Trebilcock, Davis, & Foster, Lansing, MI, for Appellants.

Barry B. Sutton, Dennis M. Goebel, HARVEY & KRUSE, Troy, Michigan, for Appellee.

Before: SILER and GILMAN, Circuit Judges; GRAHAM, District Judge.^*

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 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 of a friend and she supplied O'Connell's. After leaving a message on O'Connell's machine, Hollister's father asked his daughter for another number, and she supplied Joliet's. Mr. 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 Chicago, where she stayed until December 21, 1995. After treatment at Loyola, Hollister was transferred to the University of Michigan Medical Center in Ann Arbor, Michigan, where she remained until April 17, 1996.

As a result of her burns, Hollister has undergone comprehensive skin grafting to most of her upper body, as well as plastic and reconstructive surgery. She remains profoundly disfigured. Her medical expenses at the time of the district court's ruling in May of 1998 amounted to approximately $980,000.

B. Procedural background

On March 27, 1996, Hollister's parents filed suit in the Circuit Court of Wayne County, Michigan. Named as defendants were Dayton Hudson (the parent company of the department store where the shirt was purchased), Ralph Lauren (the company that Hollister's mother originally believed was the manufacturer of the shirt), Banana Republic (the retailer of the T-shirt), Victoria's Secret (the retailer of the bra), and General Electric (the manufacturer of the stove). The complaint alleged that the shirt was defective because it was extremely flammable and because it did not provide a warning of this condition. On July 11, 1996, the case was removed to the United States District Court for the Eastern District of Michigan on the basis of diversity of citizenship. Pursuant to a July 31, 1997 motion, Hollister was substituted for her parents as the plaintiff.

On August 1, 1997, the district court held a status conference with all of the parties. At that time, the court noted that in the 16 months that the case had been in existence, a "whole lot of nothing" had taken place. At that point, Hollister had arranged for no expert witnesses other than a consultant who was going to conduct tests of various fabrics. The court directed Hollister to secure and disclose her experts, pursuant to Rule 26 of the Federal Rules of Civil Procedure, by September 1, 1997. A discovery deadline of October 31, 1997 was also set.

On September 1, 1997, Hollister submitted reports pursuant to Rule 26 from the following four experts: David Hall (textile expert), Edmund Knight (expert on cause and origin of the fire), Anna Dutka (economic damages expert), and Alan Hedge (stove design expert). Dr. Hall's report stated that he was still looking for "exemplar" fabric identical to the rayon used in the shirt in question, and that in his opinion the fabric was dangerously flammable. The report identifies the fabric as 100% rayon, loosely woven with 1.5 denier threads.

Dr. Hall offered no opinion as to the feasibility of using a different fabric to construct a similar shirt, and acknowledged that he had no expertise in the use of fabrics in clothing. He initially testified that the flammability test promulgated by the Consumer Products Safety Commission (CPSC), set forth in 16 C.F.R. § 1610, determines whether a fabric is "unreasonably dangerous." The regulation's purpose is "to reduce danger of injury and loss of life by providing, on a national basis, standard methods of testing and rating the flammability of textiles and textile products for clothing use, thereby discouraging the use of any dangerously flammable clothing textiles." 16 C.F.R. § 1610.1. Because their products passed the CPSC flammability test, Banana Republic and Victoria's Secret were eventually dismissed as defendants. Although Dr. Hall never tested the shirt remnants pursuant to 16 C.F.R. § 1610, Dayton Hudson's expert did. The fabric passed the test. Despite this fact, Dayton Hudson remained as a defendant. By October of 1997, Hollister had dismissed all of the other remaining parties.

In his deposition on October 31, 1997, Dayton Hudson's causation expert, John Campbell, acknowledged that he had located an "exemplar" shirt composed of fabric identical to that used in the shirt involved in the accident. Hollister's counsel subsequently purchased identical shirts to the one that Campbell had identified, and gave them to Dr. Hall for examination and testing.

Dr. Hall determined that the characteristics of the exemplar fabric were substantially identical to the shirt that Hollister had been wearing at the time of the accident. He then conducted a test comparing the exemplar fabric with fourteen other fabrics. The test utilized a stove-top electric...