Durkee v. Cooper of Canada, Ltd.

• Decision Date: 28 August 1980
• Docket Number: K-M,Docket No. 45372
• Citation: 99 Mich.App. 693,298 N.W.2d 620
• Parties: Thomas DURKEE and Patricia Durkee, husband and wife, Plaintiffs-Appellants, v. COOPER OF CANADA, LTD., a foreign corporation, Defendant-Appellee, and Harold W. Richardson, Barbara A. Richardson, Delwin R. Richardson and Barbara J. Richardson, d/b/a Lakeland Arena, Andrew J. Dooley, III, andart Corporation, a Michigan Corporation ,99 Mich.App. 693, 298 N.W.2d 620
• Court: Court of Appeal of Michigan — District of US

Page 620

298 N.W.2d 620

Thomas DURKEE and Patricia Durkee, husband and wife, Plaintiffs-Appellants, v. COOPER OF CANADA, LTD., a foreign corporation,

Defendant-Appellee,

and

Harold W. Richardson, Barbara A. Richardson, Delwin R.

Richardson and Barbara J. Richardson, d/b/a

Lakeland Arena, Andrew J. Dooley, III,

and K-Mart Corporation, a

Michigan

Corporation

,

Docket No. 45372.

99 Mich.App. 693, 298 N.W.2d 620

Court of Appeals of Michigan.

Aug. 28, 1980.

Rehearing Denied Oct. 14, 1980.

Released for Publication Dec. 9, 1980.

[99 MICHAPP 695] Richard L. Steinberg, Detroit, for plaintiffs-appellants.

Christine D. Oldani, Detroit, Patrick M. Barrett, Southfield, for Cooper of Canada.

Stuart A. Ulanoff, Southfield, for Richardson.

Before DANHOF, C. J., and CYNAR and MacKENZIE, JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order granting defendant Cooper of Canada, Ltd.'s motion for summary judgment. Plaintiff Thomas Durkee was injured on September 5, 1974, while skating at a warm-up in a practice session in an "over 30" hockey league. As Mr. Durkee was skating, another hockey player launched a slap shot that struck plaintiff in the head, on the plastic chin strap of his helmet. Mr. Durkee's helmet was designed, manufactured and sold by defendant Cooper of Canada, Ltd.

Plaintiffs claim that defendant was negligent in designing a helmet which failed to offer sufficient coverage of the head and in failing to warn that the helmet would not protect against reasonably foreseeable blows.

The parties engaged in discovery through interrogatories and depositions. Before plaintiffs filed their answers to Cooper's second set of supplementary interrogatories, Cooper filed a motion for summary judgment. That motion was argued March 14, 1979, and an order granting summary [99 MICHAPP 696] judgment in favor of defendant Cooper was entered May 9, 1979.

Plaintiffs alleged two errors in the grant of that motion. First, plaintiffs claimed the trial court misapplied the "open and obvious" doctrine to bar recovery. In granting summary judgment, the court noted, "People buy the helmet, they see what it is. They have to take the consequences." The court found that the danger of the blow was open and obvious to the plaintiff and concluded that defendant was entitled to judgment as a matter of law because no duty to warn of an open and obvious danger exists.

Plaintiff's claim was not predicated solely on defendant's failure to warn-a separate allegation of defective design was also included. The court's opinion did not, however, address this count.

This Court has recognized a duty to warn where a product carries a latent risk of injury. Fabbrini Family Foods, Inc. v. United Canning Corp., 90 Mich.App. 80, 92-93, 280 N.W.2d 877 (1979), lv. den. 407 Mich. 956 (1980). ¹ Where, however, the danger is apparent, any failure to warn may be regarded as inconsequential in the circumstances of the case. In Crews v General Motors Corp., 400 Mich. 208, 219, 253 N.W.2d 617 (1977), Justice Coleman wrote, for a divided Court, that plaintiff's experience as a truck mechanic made him fully aware of the dangers of a fire if proper precautions were not taken. She concluded that any failure to warn was harmless error in that case. Similarly, this Court concluded that failure to warn was immaterial when [99 MICHAPP 697] an experienced crane operator tried to lift a 159,000-pound machine with a crane designed to hoist only 140,000 pounds. Holbrook v. Koehring Co., 75 Mich.App. 592, 595, 255 N.W.2d 698 (1977). In the case at bar, plaintiff was an adult with 28 years of experience playing hockey. He was aware of the dangers of head injuries and selected the helmet he considered to be the best. In making this purchase, he was aware that not all parts of his head would be covered by the helmet. His answers to interrogatories clearly show that he was aware of the dangers. We agree fully with the trial court that the danger was open and obvious, and that, as a matter of law, no duty to warn existed. Giving a warning in the instant case would not have served the prophylactic purpose underlying such duty, as it would not have served to dissuade plaintiff from engaging in a sport fraught with risk of injury. Analyzed in terms of proximate cause, it cannot be said that the failure to warn was the proximate cause of the injury.

Plaintiffs also asserted that defendant Cooper was negligent in designing a hockey helmet that insufficiently protected the head. The trial court did not discuss this allegation when it granted defendant's motion for summary judgment. On appeal, defendant Cooper argues that the open and obvious doctrine applies to design defects and urges this Court to follow Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950), which held that the manufacturer of an onion-topping machine had no duty to protect a user against obvious dangers by equipping the machine with safety guards. The New York court overruled Campo in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976).

The Michigan Supreme Court embraced the [99 MICHAPP 698] open and obvious doctrine in Fisher v. Johnson Milk Co. Inc., 383 Mich. 158, 160, 174 N.W.2d 752 (1970). Relying in part on Campo, the Court concluded that the manufacturer of a carrier for glass milk bottles was not negligent in designing a carrier that could not protect against breakage. The Court reasoned:

"There was no inherent, hidden or concealed defect in the wire carrier. Its manner of construction, how the bottles would rest in it, and what might happen if it were dropped, upright, on a hard surface below, with the possibility that the contained bottles might break, was plain enough to be seen by anyone including a patent attorney as well as a milk dealer. There is no duty to warn or protect against dangers obvious to all." (Emphasis added.)

Fisher remains good law, although it has been distinguished in many cases. Byrnes v. Economic Machinery Co., 41 Mich.App. 192, 200 N.W.2d 104 (1972), lv. den. 388 Mich. 765 (1972); Coger v. Mackinaw Products Co., 48 Mich.App. 113, 210 N.W.2d 124 (1973); Casey v. Gifford Wood Co., 61 Mich.App. 208, 232 N.W.2d 360 (1975), lv. den. 395 Mich. 810 (1975); Shears v. Pardonnet, 80 Mich.App. 358, 263 N.W.2d 373 (1977), lv. den. 402 Mich. 906 (1978).

This Court rejected the Fisher doctrine in Owens v. Allis-Chalmers, 83 Mich.App. 74, 81, 268 N.W.2d 291 (1978). Where plaintiff's decedent was killed when a forklift overturned, plaintiff alleged a design defect in the manufacturer's failure to include driver restraints. The Court noted the many considerations in a manufacturer's choice of product design, including the intended use and utility, costs, and industry or government safety regulations. The Court concluded that a...