Curry v. MEIJER, INC.

• Decision Date: 29 December 2009
• Docket Number: Docket No. 288187.
• Citation: 286 Mich. App. 586,780 N.W.2d 603
• Parties: CURRY v. MEIJER, INC.
• Court: Court of Appeal of Michigan — District of US

780 N.W.2d 603

286 Mich. App. 586

CURRY v. MEIJER, INC.

Docket No. 288187.

Court of Appeals of Michigan.

Submitted December 1, 2009, at Grand Rapids.

Decided December 29, 2009, at 9:10 a.m.

DeNardis, McCandless & Miller, P.C. (by Mark F. Miller, Ronald F. DeNardis, Mount Clemens, and Linda M. Galante), for plaintiffs.

Vittorio E. Porco, East Lansing, for Meijer, Inc.

Thomas P. Murray, Jr. & Associates (by Thomas P. Murray, Jr.), Grand Rapids, for Faber Brothers, Inc.

Garan Lucow Miller, P.C. (by Megan K. Cavanagh, Detroit, and Michael P. McCasey, Grand Rapids), for Stream and Lake Tackle, Inc.

Before: MARKEY, P.J., and BANDSTRA and MURRAY, JJ.

MURRAY, J.

Plaintiffs appeal as of right the trial court's order granting defendants' motions for summary disposition pursuant to MCR 2.116(C)(10). At issue is whether the trial court erred by ruling that MCL 600.2947(6)(a) of the Revised Judicature Act requires a plaintiff to establish a failure to exercise reasonable care to prevail on a breach of implied warranty claim against a nonmanufacturing defendant. We hold that such a showing is necessary and, because plaintiffs failed to meet this burden, summary disposition of plaintiffs' complaint was appropriate. Accordingly, we affirm.

I. BACKGROUND

On November 25, 2001, plaintiff Robert Curry was injured when he fell approximately 20 feet from a tree stand while hunting in Calhoun County. Curry had purchased the tree stand from defendant Meijer, Inc., some time between 1993 and 1995. The tree stand, manufactured by Loc-On Corporation, was supplied exclusively to Meijer by defendant Stream and Lake Tackle, Inc. (SLT), in 1993, and exclusively by defendant Faber Brothers, Inc., in 1994 and 1995.

Curry and his wife subsequently initiated suit against the seller and distributors of the tree stand alleging negligent design and manufacture, failure to warn, sale of a defectively designed and manufactured tree stand, breach of express and implied warranties, and loss of consortium.¹ Defendants answered in turn, and Meijer filed a cross-claim seeking indemnification from Faber Brothers and SLT.

Following the close of discovery, Meijer, SLT, and Faber Brothers filed motions for summary disposition. Meijer argued that it made no express warranty and that it could not be liable for breach of implied warranty where plaintiffs could not show that Meijer did not exercise reasonable care under MCL 600.2947(6)(a), Curry purchased the tree stand without relying on Meijer's skill and judgment, and the tree stand owner's manual disclaimed all warranties except a three-year limited warranty. SLT's motion was identical in substance to Meijer's, with the additional arguments that besides plaintiffs' failure to show that SLT distributed the tree stand, plaintiffs' theory of causation was based on speculation and conjecture. Faber Brothers contested its liability on the grounds that Robert Curry was aware of the aforementioned three-year limited warranty and the accompanying warranty disclaimer, Curry misused the tree stand by failing to wear a safety belt, plaintiffs could not prove Faber Brothers distributed the tree stand, and plaintiffs could not overcome the statutory presumption of nonliability where the tree stand was in compliance with industry standards.

Plaintiffs responded that because a breach of implied warranty claim against a seller or distributor does not require a showing of negligence and because a seller or distributor need not know the particular purpose for which a good was purchased, expert testimony that the tree stand was defectively designed and not fit for its intended purpose was sufficient to withstand defendants' motion for summary disposition. Additionally, plaintiffs contended that an implied warranty of merchantability could not be disclaimed, the nonliability aspect of the products liability statute applied only to the negligence (or reasonable care) portion of the statute, Robert Curry did not misuse the tree stand or if he did such misuse was foreseeable, and Curry's claims that he purchased the tree stand from Meijer and that Faber Brothers and SLT were the only potential distributors of the tree stand were sufficient to survive a causation challenge.

Agreeing with defendants' arguments, the trial court found that under MCL 600.2947(6)(a), "for the Plaintiffs to prevail on a breach of implied warranty claim against a non-manufacturing Defendant, they must show that the Defendant failed to exercise reasonable care — that the Defendant knew or had reason to know of the alleged defect." Thus, the court granted summary disposition because plaintiffs could neither satisfy this burden nor show that defendants had provided plaintiffs with any express warranties. In light of this order, Meijer stipulated to dismissal of its cross-claims, and on September 17, 2008, the trial court entered the final order from which plaintiffs now appeal.

II. ANALYSIS

Before this Court, plaintiffs challenge the trial court's ruling only insofar as it held that MCL 600.2947(6) requires a showing of negligence to sustain a breach of implied warranty claim. We review de novo matters of statutory interpretation as well as the grant or denial of a motion for summary disposition. Allison v. AEW Capital Mgt, L.L.P., 481 Mich. 419, 424, 751 N.W.2d 8 (2008). A motion for summary disposition pursuant to MCR 2.116(C)(10) should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999). A genuine issue of material fact exists when reasonable minds could differ after drawing reasonable inferences from the record. West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003). In reviewing this issue, the Court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence and construe them in the light most favorable to the nonmoving party. Corley v. Detroit Bd. of Ed., 470 Mich. 274, 278, 681 N.W.2d 342 (2004). Where the burden of proof rests with the nonmoving party, that party must respond with documentary evidence to demonstrate the existence of a genuine issue of material fact for trial. Maiden, 461 Mich. at 120-121, 597 N.W.2d 817. The failure of the nonmoving party to so respond results in the entry of judgment for the moving party. Id.

Before 1996, it was settled in Michigan that a plaintiff was not required to establish negligence to recover under a breach of implied warranty theory. Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 96, 133 N.W.2d 129 (1965). Rather, at common law, a plaintiff need only show that a product was sold in a defective condition and the defect caused the plaintiff's injury. Id. at 96-97, 133 N.W.2d 129. However, tort reform legislation effective in 1996 displaced application of the common law in certain products liability actions. Greene v. A.P. Products, Ltd., 475 Mich. 502, 507-508, 717 N.W.2d 855 (2006). Thus, MCL 600.2947(6), contained within the Revised Judicature Act, now governs the liability of a nonmanufacturing seller in breach of implied warranty cases. That section provides:

In a product liability action, a seller other than a manufacturer is not liable for harm allegedly caused by the product unless either of the following is true:

(a) The seller failed to exercise reasonable care, including breach of any implied warranty, with respect to the product and that failure was a proximate cause of the person's injuries.

(b) The seller made an express warranty as to the product, the product failed to conform to the warranty, and the failure to conform to the warranty was a proximate cause of the person's harm. MCL 600.2947(6).

At issue, then, is whether the tort reform legislation now requires a showing of fault, i.e., that a seller failed to exercise reasonable care, to maintain an action for breach of implied warranty (as defendants argue) or whether the tort reform legislation left the traditional test for breach of implied warranty intact (as plaintiffs argue). Because plaintiffs failed to present any evidence of negligence on the part of defendants as required to withstand defendants' summary disposition motions,² Maiden, 461 Mich. at 120-121, 597 N.W.2d 817, plaintiffs' claim is wholly dependent on resolution of this issue.

We begin our analysis by reviewing the plain language of the statute to determine the Legislature's intent. DiBenedetto v. West Shore Hosp., 461 Mich. 394, 402, 605 N.W.2d 300 (2000). Where the language is clear and unambiguous, "further construction is neither required nor permitted." Nastal v. Henderson & Assoc. Investigations, Inc., 471 Mich. 712, 720, 691 N.W.2d 1 (2005).

MCL 600.2947(6)(a) and (b) clearly and unambiguously predicate product liability on a nonmanufacturing seller for harm allegedly caused by the product under only two scenarios: (a) where the seller fails to exercise reasonable care, or (b) where there is a breach of an express warranty. The language is about as clear and unambiguous as it could be. However, plaintiffs argue that there are two liability standards within subsection (a), i.e., failure to exercise reasonable care and breach of implied warranty. While subsection (a) contains the clause, "including breach of any implied warranty," the grammatical context and placement of this clause indicate that the Legislature did not intend to create a third avenue of liability. See Bush v. Shabahang, 484 Mich. 156, 167, 772 N.W.2d 272 (2009) ("statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended") (citations and quotation marks omitted), and Sun Valley Foods Co. v. Ward, 460 Mich. 230, 237, 596 N.W.2d 119 (1999) (interpretation of critical statutory language involves consideration of both the placement and purpose of the critical phrase in the statutory scheme as well as its grammatical...