Glittenberg v. Doughboy Recreational Industries, Inc.

• Decision Date: 28 September 1990
• Docket Number: Docket No. 85391
• Parties: , Prod.Liab.Rep. (CCH) P 12,637 David and Connie GLITTENBERG, Plaintiffs-Appellees, v. DOUGHBOY RECREATIONAL INDUSTRIES, INC., a foreign corporation, Defendant-Appellant, and Robert and Dianne Wilcenski, Defendants.
• Court: Michigan Supreme Court

Page 348

462 N.W.2d 348

436 Mich. 673, Prod.Liab.Rep. (CCH) P 12,637

David and Connie GLITTENBERG, Plaintiffs-Appellees, v. DOUGHBOY RECREATIONAL INDUSTRIES, INC., a foreign corporation, Defendant-Appellant and Robert and Dianne Wilcenski, Defendants.

Docket No. 85391.

Supreme Court of Michigan.

Argued April 3, 1990.

Decided Sept. 28, 1990.

[436 Mich. 675] Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen and Bartnick by Richard E. Shaw, Detroit, for plaintiffs-appellees.

Robert G. Russell, Joanne Geha Swanson, Janice A. Furioso, Kerr, Russell and Weber, Detroit, for defendant-appellant.

Ronald R. Gilbert, Chairman, Detroit, amicus curiae brief for Foundation for Spinal Cord Injury Prevention and Aquatic Injury Safety Foundation on Glittenberg.

Plunkett & Cooney, P.C. by Ernest R. Bazzana, Detroit, for amicus curiae Ass'n of Defense Trial Counsel and Michigan Defense Trial Counsel.

Mark Granzotto, Detroit, Monica Linkner, Berkley, Charles P. Burbach, Southfield, amicus curiae brief for Michigan Trial Lawyers Ass'n.

Jeannette A. Paskin, Daniel J. Seymour, Paskin, Nagi & Baxter, P.C., Detroit, amicus curiae brief for Hartford Ins. Co. and Claims Management, Inc.

OPINION

GRIFFIN, Justice.

In this products liability case alleging negligent failure to warn, we must decide whether the manufacturer of an above-ground swimming pool had a duty to warn plaintiff that serious or permanent injuries could result from a dive into the shallow end of the pool. Because a reasonably prudent person would recognize that a headfirst dive into observably shallow water carries with it substantial risk of serious injury, we would find as a matter of law that the defendant had no duty to warn plaintiff of this open and obvious danger. Since the trial court properly granted summary judgment for defendant, we would reverse the decision of the Court of Appeals.

I

This lawsuit against defendant Doughboy Recreational Industries, Inc., a pool manufacturer, arises out of a diving accident which occurred in September 1978. Plaintiff David Glittenberg, then thirty years old, dove off the edge of his neighbor's above-ground swimming pool into three and one-half feet of water and struck his head on the bottom, rendering him a quadriplegic. The details surrounding the accident are recounted by plaintiff in his deposition.

On the day in question, plaintiff accompanied his ex-wife Connie Glittenberg, ¹ to the home of neighbors Robert and Dianne Wilcenski. Plaintiff carried with him a container of beer that he had been drinking while splitting wood at his residence. He consumed one or two additional beers at his neighbors' house before he dove into their pool. The shallow end of the Wilcenski pool was three feet deep and the other end was seven feet in depth. Plaintiff testified that he had been in the pool on at least two occasions prior to the accident and had observed others in the pool at various times as well. Thus, he was familiar with the shallow end of the pool and its three-foot depth. He was able to discern where the shallow water ended and the deep water began; plaintiff acknowledged that he did not need depth markers to remind him of the water's depth.

Connie Glittenberg was basking in a floating chair in the deep end of the pool. Plaintiff attempted a "shallow" or "racing" dive into the shallow end with the intention of swimming across the pool to his wife. Tragically, he never made it.

Plaintiff testified that he did not slip or trip when making the dive. He was an experienced swimmer, having received instruction in both swimming and diving in high school and life-saving certification which qualified him to become a lifeguard. As a result of this training, plaintiff admitted in his deposition testimony that he knew serious injury could result from diving into shallow water. However, he testified that "[j]ust exactly what type of injury would result from it, I couldn't have said at the time."

No warning against diving was posted on or near the pool. Warning labels and instructions for posting the labels were provided by defendant to the original purchaser of the pool, Fred Bancroft. However, the warning labels were not placed on the pool by Mr. Bancroft or by the Wilcenskis, who purchased the pool from Bancroft.

Plaintiff sued defendant, the pool manufacturer, and others, ² alleging in his complaint failure "to warn the Plaintiff of the dangerous conditions existing in the pool...."

On January 20, 1984, defendant moved for summary judgment pursuant to GCR 1963, 117.2(1), alleging failure to state a claim. The motion was predicated on the "open and obvious danger" rule--a manufacturer has no duty to warn of dangers involved in the use of simple and otherwise nondefective products which are so open and obvious that a reasonably prudent user would require no warning. The trial court granted the motion on April 9, 1984. Plaintiff subsequently filed a motion for rehearing, which was denied on May 2, 1985.

Plaintiff filed a timely claim of appeal, and the Court of Appeals reversed on January 17, 1989. 174 Mich.App. 321, 435 N.W.2d 480 (1989). The Court opined that the "open and obvious danger" rule relied upon by the trial court is no longer viable in Michigan and that, at any rate, the risk of serious injury, i.e., quadriplegia, is not an obvious danger:

"We do not believe the risk is open and obvious. We believe the risk of serious injury, in this case paraplegia, is not obvious in the absence of some form of warning. A simple act of pleasure on a hot summer's day, a dive into a pool, can result in a lifetime of heartache, frustration, pain and loss. Nothing in the appearance of the pool itself gives a warning of the very serious consequences to which a mundane dive can lead. Nor are we convinced that the danger of serious injury from a dive is a risk of which the public is generally aware." 174 Mich.App. p. 326, 435 N.W.2d 480.

We then granted leave to appeal. 433 Mich. 880, 446 N.W.2d 168 (1989). ³

II

Typically, the perimeters of appellate review are defined by the procedural posture of the case. In this instance, we are called upon to review the disposition of a pretrial motion for summary judgment. Although defendant's motion was brought pursuant to GCR 1963, 117.2(1), failure to state a claim, the record makes clear that the parties, the trial court, and the Court of Appeals relied on matters outside of the pleadings--most notably plaintiff's deposition testimony--to argue and rule on the motion. In such a situation, even though the parties and the lower courts have referred to the motion as one for failure to state a claim, we will treat it as one brought pursuant to then GCR 1963, 117.2(3), under which the court may properly consider matters outside of the pleadings. ⁴

A federal rule, F.R.Civ.P. 12(b)(6), which was the model for the former GCR 1963, 117.2(1) and the current MCR 2.116(C)(8), provides that a dismissal is appropriate if a pleading fails to state a claim upon which relief can be granted. However, the federal rule also states that

"[i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." F.R.Civ.P. 12(b).

Although no analogous provision appears in our court rules, Michigan appellate courts have previously reviewed the disposition of a motion for summary judgment as though it were brought under GCR 1963, 117.2(3), or MCR 2.116(C)(10), where the parties have gone outside the pleadings and even though the parties and the lower courts have labeled the motion as one for failure to state a claim under MCR 2.116(C)(8) or GCR 1963, 117.2(1). See, e.g., Velmer v. Baraga Area Schools, 430 Mich. 385, 389, 424 N.W.2d 770 (1988); Ross v. Jaybird Automation, Inc., 172 Mich.App. 603, 606, 432 N.W.2d 374 (1988); Huff v. Ford Motor Co., 127 Mich.App. 287, 293, 338 N.W.2d 387 (1983). Thus, we will treat the present motion as if it had been brought pursuant to GCR 1963, 117.2(3).

Such a motion tests the factual basis of a plaintiff's claim and may be granted only if, giving " 'the benefit of any reasonable doubt to the opposing party,' " it is determined that " 'there is no genuine issue as to any material fact.' " Rizzo v. Kretschmer, 389 Mich. 363, 372, 207 N.W.2d 316 (1973).

III

Actionable negligence presupposes the existence of a legal relationship--in other words, a duty. Clark v. Dalman, 379 Mich. 251, 150 N.W.2d 755 (1967). This maxim applies as a matter of course to products liability actions. A prima facie case of negligent failure to warn requires the plaintiff to demonstrate that the defendant manufacturer owed the plaintiff a duty to warn of the danger. See Antcliff v. State Employees Credit Union, 414 Mich. 624, 327 N.W.2d 814 (1982); Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977). As explained by this Court in Antcliff, supra, 414 Mich. pp. 630-631, 327 N.W.2d 814:

" 'A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.' Prosser, Torts (4th ed), Sec. 53, p. 324. The terse legal conclusion that a duty is owed by one to another represents a judgment, as a matter of policy, that the latter's interests are entitled to legal protection against the former's conduct."

It is equally well established that the threshold issue of the existence of a duty is a question of law for the court to decide:

"It is generally agreed that the duty question--'whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for...