Greene v. AP Products, Ltd.
| Decision Date | 20 January 2005 |
| Docket Number | Docket No. 249113. |
| Parties | Cheryce GREENE, as Personal Representative of the Estate of Keimer Easley, Deceased, Plaintiff-Appellant, v. A.P. PRODUCTS, LTD., Revlon Consumer Products Corporation, and Super 7 Beauty Supply, Inc., formerly known as Pro Care Beauty Service, Inc., and formerly known as Pro Care Beauty Supply, Defendants-Appellees, and Raani Corporation, Defendant. |
| Court | Court of Appeal of Michigan — District of US |
McKeen & Associates, P.C. (by Brian J. McKeen and Ramona C. Howard), Detroit, for Cheryce Greene.
Plunkett & Cooney, P.C. (by Ernest R. Bazzana and Edward J. Higgins), Detroit, for A.P. Products, Ltd. and Revlon Consumers Products Corporation.
Kaufman and Payton (by Howard S. Weingarden), Farmington Hills, for Super 7 Beauty Supply, Inc.
Before: BORRELLO, P.J., and MURPHY and NEFF, JJ.
In this wrongful death product liability action, plaintiff Cheryce Greene, as personal representative of the estate of Keimer Easley, deceased, appeals as of right the order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). This case arose after plaintiff's eleven-month-old son Keimer died from ingesting a hair and body care product manufactured by A.P. Products (A.P.)1 and sold by Super 7 Beauty Supply. The product did not contain any warning that it should be kept out of the reach of children or that it was toxic and potentially fatal, let alone harmful, if ingested, and it did not provide any information on how to respond to accidental ingestion. Although plaintiff's own deposition testimony revealed her understanding that the hair and body care product could possibly cause some level of nonlethal harm if ingested, and although reasonable persons might agree that it is open and obvious that some level of nonlethal harm can result from ingesting the product, the extreme degree of harm, danger, and toxicity and the potential of death from ingestion, considered with the documentary evidence presented, precludes summary disposition. Accordingly, we reverse.
In April 1999, plaintiff purchased a bottle of Ginseng Miracle Wonder 8 Oil, Hair & Body Mist — Captivate (Wonder 8 Oil) from Super 7 Beauty Supply. Wonder 8 Oil is marketed to the African-American community as a hair and body moisturizer. This was the first time plaintiff had purchased Wonder 8 Oil, and, although she had never heard of it or seen it advertised, she was drawn to the product because it was something new that caught her eye. After noticing that it was natural oil with "good ingredients," she decided to give it a try. Plaintiff stated that some of the ingredients, like coconut oil, carrot oil, and various vitamins, were familiar to her, but other ingredients were not. The bottle contained no warnings indicating that the product contained hydrocarbons, that it was toxic and potentially fatal if swallowed, or that it should be kept out of the reach of children. Also, the bottle was not equipped with any type of childproof safety device.2
Plaintiff started using the Wonder 8 Oil the morning after the purchase and continued to use it every other morning. Plaintiff stated that when she was not using the product, she always kept it in the medicine cabinet located above the sink in her bathroom. Keimer could not reach products in the medicine cabinet on his own.
On June 28, 1999, plaintiff's thirteen-year-old niece was babysitting for Keimer while plaintiff was at work. Plaintiff returned home and found her niece and son sitting on the front porch. Plaintiff and her niece talked for a few minutes and then went into the house. Plaintiff put Keimer in his playpen and told her niece to leave him there while plaintiff went upstairs to program a new television in her bedroom.
Plaintiff was sitting on her bed with her back to the bedroom door, programming her television, when she heard Keimer coughing from behind where she was sitting. She turned around and saw Keimer standing next to the nightstand with the bottle of Wonder 8 Oil in his hand and oil in and around his mouth. She quickly knocked the bottle out of his hand, gave him some milk, and called 911. Impatient with the 911 operator's questions, plaintiff decided to drive Keimer to Grace Hospital. After he was stabilized later that night, Keimer was transferred to Children's Hospital where he remained for approximately one month.
On admission to Children's Hospital, Keimer was diagnosed with hydrocarbon ingestion with chemical pneumonitis.3 Initially he improved, but his condition then deteriorated, and he died on July 30, 1999. Keimer's cause of death was identified as "[m]ulti-system organ failure secondary to chemical pneumonitis, secondary to hydrocarbon ingestion."4
Plaintiff's niece explained in deposition that she had brought Keimer into plaintiff's bedroom because she was going outside and that she assumed that plaintiff had heard her say this. But plaintiff asserted that she did not notice her niece bring Keimer into the room. Plaintiff could not explain how Keimer gained possession of the product because, as mentioned, she always kept it in the bathroom medicine cabinet and she had returned it there the last time she used it. She assumed that the bottle must have been in her bedroom because it was not possible for Keimer to get the bottle out of the medicine cabinet. Plaintiff speculated that her niece, who had permission to use plaintiff's beauty products, had used the product and left it in the bedroom. Although the niece stated that she had used the product a couple of days before the incident, she had no idea how Keimer gained possession of the bottle.
In her deposition, plaintiff testified that she always kept her nail care products, e.g., polish and acrylic, in a locked case because she knew that they could be harmful if swallowed. She stated that most of those products displayed a warning to that effect. Plaintiff also testified that when her first son was born, Keimer was plaintiff's second-born child, she "baby-proofed" the house. Specifically, she installed locks on the cabinets and put plastic plugs in the electrical outlets.
In an affidavit, plaintiff confirmed that she kept her nail care products in a locked case because of her knowledge that such products could be toxic. Additionally, she averred that following the birth of her first son, she stored all products that she knew to be toxic, such as bleach and ammonia, in a locked cabinet. Plaintiff asserted that, generally, it was her habit to read product labels because she had two small children. She further maintained that, because the ingredients of the Wonder 8 Oil were described as natural, she had no idea that they could be fatal. With respect to the Wonder 8 Oil, plaintiff avowed that if the bottle had displayed a warning indicating that the product was toxic or fatal if swallowed, she would not have allowed her niece to use the product and she would not have left it in the medicine cabinet where anyone in the house could have access to it. Plaintiff claimed that she would have instead put the Wonder 8 Oil in a locked cabinet or case and told her niece not to use it.
Super 7 Beauty Supply moved for summary disposition under MCR 2.116(C)(8) and (10), arguing that plaintiff failed to establish that Super 7, as merely a seller of the product, had independently breached an express or implied warranty or was independently negligent. Super 7 further contended that plaintiff failed to show that the product was not fit for the ordinary purposes for which such products are used or that it was not fit for a particular purpose. A.P. and Revlon moved for summary disposition under MCR 2.116(C)(10), arguing that there was no genuine issue of material fact that the lack of a warning was not the proximate cause of the injury and that the product was misused in a manner that was not reasonably foreseeable.
After hearing oral arguments, the trial court granted the summary disposition motions in favor of defendants, adopting the brief and oral argument of A.P. and Revlon as the basis for its decision. Because A.P. and Revlon focused their C(10) arguments on a lack of causation because of alleged knowledge of the danger by plaintiff, misuse, and a lack of a duty to warn, these positions necessarily formed the basis of the trial court's ruling. Plaintiff appeals as of right.
This Court reviews de novo a trial court's ruling to either grant or deny a motion for summary disposition. Kreiner v. Fischer, 471 Mich. 109, 129, 683 N.W.2d 611 (2004). Questions of statutory interpretation are likewise reviewed de novo. Id. Further, questions of law in general are reviewed de novo. See Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 612, 684 N.W.2d 800 (2004).
MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue regarding any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996); MCR 2.116(G)(5). "Where the burden of proof ... on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in [the] pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists." Quinto, supra at 362, 547 N.W.2d 314. Where the opposing party fails to...
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Greene v. A.P. Products, Ltd.
...reasonably prudent product user and be a matter of common knowledge, especially considering the lack of any relevant warning." 264 Mich.App. at 401, 691 N.W.2d 38 (first emphasis added). The Court of Appeals thus required that the warning indicate specific injuries a product user could incu......