Glittenberg v. Doughboy Recreational Industries

Citation441 Mich. 379,491 N.W.2d 208
Decision Date01 October 1991
Docket NumberNos. 1-3,Docket Nos. 85391,88429 and 88580,s. 1-3
CourtSupreme Court of Michigan
Parties, 61 USLW 2214, Prod.Liab.Rep.(CCH)P. 13,320 David and Connie GLITTENBERG, Plaintiffs-Appellees, v. DOUGHBOY RECREATIONAL INDUSTRIES, a foreign corporation, Defendant-Appellant, and Robert and Dianne Wilcenski and Victor Hill & Charles Wilson d/b/a/ Hilson's Pool Company, Defendants. Allan SPAULDING and Jane Spaulding, Plaintiffs-Appellants, v. LESCO INTERNATIONAL CORPORATION, and Coleco Industries, Incorporated, Defendants-Appellees, and Ernest J. Pietila and Thomas R. Pietila, d/b/a/ Pietila Brothers Pool Service & Specialty Company, Defendants-Cross Plaintiffs-Appellees, and S.K. Plastics Corporation, Defendant-Cross-Defendant-Appellee, and Oceanic Leisure Corporation, John G. McCracken, d/b/a Pool Site, Doughboy Recreational Incorporated, Hoffinger Industries, Incorporated, and Sears Roebuck & Company, Defendants. William HOREN and Pamela Horen, Plaintiffs-Appellees, v. COLECO INDUSTRIES, a foreign corporation; Bridgeport Pools, Inc., a Michigan corporation; and Lomart Industries, a Division of Doughboy, successor corporation to Coleco Industries, Defendant-Appellants. Calendar,

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Richard E. Shaw, Detroit, for plaintiffs-appellees in No. 85391.

Kerr, Russell and Weber by Robert G. Russell, Joanne Geha Swanson, Janice A. Furioso, Detroit, for defendant-appellant in No. 85391.

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

Chad C. Schmucker, Jackson, for Robert and Diane Wilcenski.

Aaron D. Twerski, Professor of Law, Brooklyn Law School, Brooklyn, N.Y., and Terrence E. Haggerty, Bowman and Brooke, Detroit, for amicus curiae Product Liability Advisory Council.

Barry P. Waldman, Detroit, Monica Farris Linkner, Berkley, Charles P. Burbach, Southfield, for amicus curiae of the Michigan Trial Lawyers Ass'n Mark Granzotto, Detroit, for amicus curiae.

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

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

Richard M. Goodman, Jonathan L. Walker, Thomas W. Stephens, Mark Granzotto, Detroit, for plaintiffs-appellants in No. 88429.

Ulanoff, Ross & Wesley, P.C. by Stuart A. Ulanoff, Hilde Farmer-Brooks, Southfield, for defendant-appellee Lesco Intern. Corp.

Plunkett & Cooney, P.C. by Ernest R. Bazzana, Dwight G. Conger, Detroit, for defendants-appellees Pietila Bros.

Paskin, Nagi & Baxter, P.C. by Jeannette A. Paskin, Daniel J. Seymour, Dennis Zamplas, Paul J. Johnson, Detroit, for defendant-appellee Coleco Industries, Inc. and defendants Doughboy and Hoffinger.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Milton Lucow, Rosaslind Rochkind, David M. Shafer, Detroit, for S.K. Plastics.

Gregory M. Kopacz, Detroit, for Sears.

Bruce F. Trogan, Trogan & Trogan, P.C., Saginaw, for William Horen and Pamela Horen.

Jeannette A. Paskin, Detroit, for Coleco/Lomart.

Irwin F. Hauffe II, Irwin F. Hauffe, P.C., Saginaw, for Bridgeport Pools, Inc.


BOYLE, Justice.

In these cases, we confront again the scope of the duty to warn. The issue is whether summary disposition was properly granted in favor of the defendant manufacturers and sellers on the basis that they had no duty to warn of the danger of a headfirst dive into the shallow water of an aboveground pool, which the parties do not dispute is a simple tool, 1 that is, a product all of whose essential characteristics are fully apparent.

The lengthy factual and procedural background for this inquiry is set forth in the appendix. In brief, each plaintiff sustained tragic injuries when he dove into the shallow water of an aboveground pool. Each previously had been in the pool in question and each acknowledged that he knew the depth of the water in the pool and that a deep dive into shallow water was dangerous. The Court of Appeals reversed the trial court's grant of summary disposition in Glittenberg v. Wilcenski, 174 Mich.App. 321, 435 N.W.2d 480 (1989), and Horen v. Coleco Industries, Inc., 169 Mich.App. 725, 426 N.W.2d 794 (1988), and affirmed summary disposition in Spaulding v. Lesco Int'l. Corp., 182 Mich.App. 285, 451 N.W.2d 603 (1990). This Court's plurality result in Glittenberg v. Doughboy Recreational Industries, Inc., 436 Mich. 673, 462 N.W.2d 348 (1990) (Glittenberg I ), led to rehearing and consolidation of these cases. 437 Mich. 1224, 464 N.W.2d 710 (1991).

After meticulous consideration of the records below and the significant issues implicated, 2 we now hold that summary disposition was properly granted in favor of the defendants. 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. On this record we conclude that the product is not defective or unreasonably dangerous for want of a warning. Because the duty question involves the issue of fault for which there is no material issue of fact, we reverse the decisions of the Court of Appeals in Glittenberg and Horen and affirm

the decision of the Court of Appeals inSpaulding.


In the products context, duty to warn has been described as an exception to the general rule of nonrescue, imposing an obligation on sellers to transmit safety-related information when they know or should know that the buyer or user is unaware of that information. As agreed in Glittenberg, the question of duty is to be decided by the trial court as a matter of law. Antcliff v. State Employees Credit Union, 414 Mich. 624, 640, 327 N.W.2d 814 (1982); Smith v. Allendale Mut. Ins. Co., 410 Mich. 685, 713-715, 303 N.W.2d 702 (1981). 3

Most jurisdictions that have addressed similar cases have been unwilling to impose liability on the pool manufacturer or seller. 4 Summary judgment in favor of the defendant has been based on lack of a causal connection between the alleged negligent failure to warn and the plaintiff's injury. 5 Courts typically focus on the plaintiff's deposition testimony, establishing familiarity with the pool and awareness of the depth of the water in relation to the body, and hence recognition of the need to execute a shallow, flat dive in order to avoid contact with the bottom of the pool and injury. From this, it is concluded that, because the plaintiff was aware of the shallow condition of the pool's water and the dangers inherent in a headfirst dive into observably shallow water, the absence of a warning conveying those very facts could not be a proximate cause of the plaintiff's injuries. 6

Although these cases could be decided on the fact specific basis of causation, the temptation to do so or to rely on the observation that a jury should be permitted to determine whether the asserted danger is latent, Levin, J., Op., p. 225, simply postpones to another day the need to grapple with the more difficult duty analysis. On the record here presented, we find that the plaintiffs' evidence fails to demonstrate the existence of a necessary antecedent to resolution of the causation issue, i.e., that the defendants owe the plaintiffs a duty to warn.


Manufacturers have a duty to warn purchasers or users of dangers associated with the intended use or reasonably foreseeable misuse of theirproducts, 7 but the "If there were an obligation to warn against all injuries that conceivably might result from the use or misuse of a product, manufacturers would find it practically impossible to market their goods." Noel, Products defective because of inadequate directions or warnings, 23 S.W.L.J. 256, 264 (1969).

scope of the duty is not [441 Mich. 388] unlimited. 8 As one commentator observed:

A manufacturer's or seller's duty to warn of its product's potentially dangerous condition "is not a duty which necessarily attaches to the status of manufacturer or seller, nor is it one which exists regardless of the nature of the product." Anno: Manufacturer's or seller's duty to give warnings regarding product as affecting his liability for product-caused injury, 76 ALR2d 9, 16. For policy reasons, the law qualifies a manufacturer's duty to warn by declaring some risks to be outside that duty. See Antcliff, supra 414 Mich. at 630-631, 327 N.W.2d 814, 9 Elbert v. Saginaw, 363 Mich. 463, 475-476, 109 N.W.2d 879 (1961), 10 and Friedman v. Dozorc, 412 Mich. 1, 22, 312 N.W.2d 585 (1981). 11

A duty is imposed on a manufacturer or seller to warn under negligence principles summarized in Sec. 388 of 2 Restatement Torts, 2d, pp. 300-301. 12 Basically, the manufacturer or seller must (a) have actual or constructive knowledge of the claimed danger, (b) have "no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition," and (c) "fail to exercise reasonable care to inform Comment k to subsection 388(b) explains the conditions necessary for recognition of the duty to warn, stating the generally accepted rule that a manufacturer or seller has no duty to warn of open and obvious dangers connected with an otherwise nondefective product. 13 See anno: 76 ALR2d 38. See also 3 American Law Products Liability, 3d, Sec. 33:25, p. 52. A manufacturer has no duty to warn if it reasonably perceives that the potentially dangerous condition of the product is readily apparent or may be disclosed by a mere casual inspection, and it cannot be said that only persons of special experience will realize that the product's condition or characteristic carries with it a...

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