Boumelhem v. Bic Corp., Docket No. 168098

• Decision Date: 26 May 1995
• Docket Number: Docket No. 168098
• Citation: 211 Mich.App. 175,535 N.W.2d 574
• Parties: , Prod.Liab.Rep. (CCH) P 14,245 Mohamed BOUMELHEM, Next Friend of Ibrahim Boumelhem and FRANKLIN Gates, Minors, Plaintiffs-Appellants, v. BIC CORPORATION, a New York Corporation, Defendant-Appellee, and Chembond Limited, a Canadian Corporation, Flooring Master, Inc., a Canadian Corporation, Shoppers World, Inc., a Michigan Corporation, Ousama Mehaidli and Mohamad Boumelhem, Jointly and Severally, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 574

535 N.W.2d 574

211 Mich.App. 175, Prod.Liab.Rep. (CCH) P 14,245

Mohamed BOUMELHEM, Next Friend of Ibrahim Boumelhem and FRANKLIN Gates, Minors, Plaintiffs-Appellants, v. BIC CORPORATION, a New York Corporation, Defendant-Appellee and Chembond Limited, a Canadian Corporation, Flooring Master Inc., a Canadian Corporation, Shoppers World, Inc., a Michigan Corporation, Ousama Mehaidli and Mohamad Boumelhem Jointly and Severally, Defendants.

Docket No. 168098.

Court of Appeals of Michigan.

Submitted Jan. 10, 1995, at Detroit.

Decided May 26, 1995, at 9:00 a.m.

Released For Publication Aug. 3, 1995.

Keane & Keane, P.C. by Christopher J. Keane, Dearborn, for plaintiffs.

Vandeveer Garzia by Thomas M. Peters, Bruce E. Pearce, Robert D. Brignall, and Pamela L. Abbott, Detroit, for Bic Corp.

Before WHITE, P.J., and GRIBBS and SMOLENSKI, JJ.

SMOLENSKI, Judge.

In this products liability case, plaintiffs appeal as of right from the trial court order that granted summary disposition to defendant Bic Corporation (hereafter defendant) and dismissed plaintiffs' claims for damages for personal injuries. We affirm.

The minor plaintiffs, then aged four years and approximately one-half year, were injured in a fire allegedly started when the older plaintiff obtained and ignited a disposable lighter designed and manufactured by defendant. ¹ The older plaintiff sustained burns on his legs below the knees; the younger plaintiff sustained severe burns over approximately eighty-five percent of his body. Plaintiffs' complaint alleged the following claims against defendant: negligent failure to warn, negligent design, negligent manufacture, breach of implied warranty, wilful and wanton misconduct, negligent misrepresentation, fraud, and intentional tort. Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) on the grounds that either it owed no duty to plaintiffs or plaintiffs' claims were not cognizable under Michigan products liability law. The circuit court granted defendant's motion. Plaintiffs argue that the circuit court erred in granting defendant's motion for summary disposition.

On appeal, we review the trial court's grant or denial of summary disposition de novo. Mieras v. DeBona, 204 Mich.App. 703, 706, 516 N.W.2d 154 (1994); Allstate Ins. Co. v. Elassal, 203 Mich.App. 548, 552, 512 N.W.2d 856 (1994). A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. All factual allegations supporting the claim are accepted as true, as well as any reasonable inferences or conclusions that can be drawn from the facts. The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. ETT Ambulance Service Corp. v. Rockford Ambulance, Inc., 204 Mich.App. 392, 395-396, 516 N.W.2d 498 (1994). However, a motion for summary disposition pursuant to MCR 2.116(C)(10) tests whether there is factual support for a claim. When deciding such a motion, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Allen v. Keating, 205 Mich.App. 560, 562, 517 N.W.2d 830 (1994). Summary disposition pursuant to MCR 2.116(C)(10) is proper when, except with regard to the amount of damages, there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Allstate, supra.

Plaintiffs first argue that the trial court erred in dismissing their claim alleging failure to warn. We disagree. The manufacturer of a simple product has no duty to warn of the product's potentially dangerous conditions or characteristics that are readily apparent or visible upon casual inspection and reasonably expected to be recognized by the average user of ordinary intelligence. Glittenberg v. Doughboy Recreational Industries (On Rehearing), 441 Mich. 379, 385, 491 N.W.2d 208 (1992). Plaintiffs argue that summary disposition was improper because defendant's lighter is not a simple tool. However, this question was answered in Adams v. Perry Furniture Co. (On Remand), 198 Mich.App. 1, 497 N.W.2d 514 (1993), lv. den. 445 Mich. 901, 519 N.W.2d 860 (1994). In Adams, the plaintiff was the personal representative of the estates of four minors who died in a house fire; the fire was allegedly started by a disposable lighter manufactured by defendant Bic Corporation. Id. at 3, 9, 497 N.W.2d 514. The plaintiff's complaint included a claim that Bic failed to warn of the dangerous character of its lighter. Id. at 3, 497 N.W.2d 514. This Court affirmed the trial court's grant of summary disposition for Bic pursuant to MCR 2.116(C)(8) on the ground that Bic had no duty to warn children of the dangerous character of its lighters because a disposable lighter is a simple tool and reasonable minds could not differ with regard to the obvious character of the lighter's danger. Id. at 13, 497 N.W.2d 514. Accordingly, in this case, the trial court properly granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(8).

Next, plaintiffs argue that the trial court erred in dismissing their claim alleging defective design. We agree. However, this issue is again controlled by Adams. Like this case, the plaintiff's complaint in Adams also included a claim of defective design against Bic Corporation that alleged that Bic owed a duty to design a child-resistant lighter because misuse of Bic's lighters by children was foreseeable and that Bic's disposable lighters were unreasonably dangerous products because the lighters were not designed with a child-resistant cap. Id. at 3, 13, 497 N.W.2d 514. The plaintiff maintained that "the issue [was] whether it was foreseeable to Bic that its lighters would be handled by children." Id. at 14, 497 N.W.2d 514. This Court disagreed and stated:

The test in design defect cases concerning simple tools is whether the risks are unreasonable in light of the foreseeable injuries. Owens [v. Allis-Chalmers Corp., 414 Mich. 413, 425, 326 N.W.2d 372, (1982) ]. The parties do not dispute that it is foreseeable that children will handle lighters and might injure themselves in doing so. However, we are not persuaded that the risk of this danger imposes a duty upon the manufacturer of the lighter to make it child-resistant in light of the fact that the product is intended to be sold to adults. See King v. RG Industries, Inc, 182 MichApp 343, 346; 451 NW2d 874 (1990). Moreover, Bic placed a warning on its lighters to keep them out of the reach of children. We believe that the risk of danger to children is best obviated by the supervisory control of the product by its adult purchasers. We recognize the tragic loss of life under these circumstances. However, courts have never made sellers insurers of their products and thus absolutely liable for any and all injuries sustained from the use of those products. Prentis v. Yale Mfg Co, 421 Mich 670, 682-683; 365 NW2d 176 (1984); See also Glittenberg, supra, p 388, n 8 . Thus, we conclude that Bic does not have a duty to manufacture child-resistant lighters. [Id.]

Because Adams is binding precedent under Administrative Order No. 1994-4, we must affirm the trial court's grant of summary disposition for Bic with regard to plaintiffs' claim of negligent design. However, we disagree with Adams and follow it only because we are required to do so by Administrative Order No. 1994-4. We disagree with the narrowing in Adams of the scope of defendant's duty in designing its lighters. ²

The determination of duty is a question of law for the court to decide. Moning v. Alfono, 400 Mich. 425, 436-437, 254 N.W.2d 759 (1977), supplemental order 402 Mich. 958 (1978). In a case alleging defective design, even one involving a simple tool, a manufacturer has a duty to design its product, not to make it accidentproof, but, rather, to eliminate any unreasonable risk of foreseeable injury. Prentis, supra at 681-682, 692-693, 365 N.W.2d 176 Owens, supra. The scope of this duty is owed not only to intended users but to persons who foreseeably misuse the product. Glittenberg, supra at 394, 491 N.W.2d 208; Moning, supra at 439, 254 N.W.2d 759; Rutherford v. Chrysler Motors Corp., 60 Mich.App. 392, 399, 231 N.W.2d 413 (1975).

Once the question of duty has been determined, the question whether a defendant was negligent, i.e., whether the defendant breached its duty, is generally a question of fact. Moning, supra at 438, 254 N.W.2d 759. In a case alleging defective design, Michigan has adopted a pure negligence, risk-utility test for determining whether a defendant has breached its duty of care in designing a product. Glittenberg, supra at 394, 491 N.W.2d 208; Prentis, supra at 691, 365 N.W.2d 176; see also Owens, supra. In a case alleging defective design, the obviousness of the product's danger is merely one factor in the analysis of whether a design is reasonable. Owens, supra.

In this case, we believe that "there is no justification for departing from general negligence ... principles merely because the dangers are patent." Owens, supra at 425, 326 N.W.2d 372. Even though adults are the intended users of defendant's lighters, it is foreseeable that children will be injured through misuse of defendant's disposable lighters. ³ We would hold that, as a matter of law, defendant owed a duty to design its disposable lighters so as to eliminate any unreasonable risk of foreseeable injury to children. Accord Carlson v. Bic Corp., 840 F.Supp. 457, 464 (E.D.Mich., 1993); but see Kirk v. Hanes Corp. of North Carolina, 16 F.3d 705 (CA 6, 1994). We would reverse the trial court's grant of summary disposition for Bic regarding plaintiffs' claim of defective design and remand to the trial court where the obviousness of the dangerous character of defendant's lighter properly could be considered in determining the factual question whether...