Kirk v. Hanes Corp. of North Carolina

Decision Date28 March 1994
Docket NumberNo. 91-2305,91-2305
Citation16 F.3d 705
Parties, Prod.Liab.Rep.(CCH)P. 13,801 Robert KIRK, as Next Friend of Amanda Gryka, a Minor, Plaintiff-Appellant, v. HANES CORPORATION OF NORTH CAROLINA; and Bic Corporation, a New York Corporation, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Christopher R. Sciotti, St. Clair Shores, MI (argued and briefed), for Robert Kirk.

Allan G. Meganck, Allan G. Meganck & Associates, Detroit, MI, for Hanes Corp. of North Carolina.

Robert D. Brignall (briefed), Thomas M. Peters (argued), Pamela L. Abbott, Vandeveer & Garzia, Detroit, MI, for Bic Corp.

Before: RYAN and SUHRHEINRICH, Circuit Judges; and CONTIE, * Senior Circuit Judge.

SUHRHEINRICH, Circuit Judge.

Plaintiff Robert Kirk appeals the summary judgment entered by the District Court for the Eastern District of Michigan in favor of Defendant Bic Corporation (Bic) in Kirk's products liability suit. The district court certified this judgment pursuant to Fed.R.Civ.P. 54(b), we have jurisdiction, and the judgment is AFFIRMED.


The facts in this case are not in dispute. On the morning of October 29, 1987, Diane Gryka returned home from work before her husband, Wayne Gryka, left for his job. Diane and Wayne smoked a pipe of marijuana together in their living room and, when Wayne had to leave, Diane fell asleep on the couch. They left their disposable butane lighter lying on the living room table.

While Diane slept, her five-year-old son used the lighter to light a candle. The boy then used the candle to set fire to the T-shirt worn by his three-year-old sister, Amanda. Diane awoke to her daughter's screams but Amanda was severely burned before the flames could be extinguished.

Robert Kirk, as next friend of Amanda, filed suit in Michigan state court against Hanes Corporation (Hanes), the manufacturer of the T-shirt Amanda was wearing. Hanes removed the case to federal court based upon the diversity of citizenship of the parties. Kirk then amended his complaint, adding Bic as a defendant and alleging that Bic had been negligent in failing to design a child-proof or child-resistant lighter. 1


Rule 56 provides that summary judgment is appropriate whenever "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The second summary judgment requirement involves, by its own terms, a determination of law. This determination we review de novo. Brooks v. American Broadcasting Co., 932 F.2d 495, 500 (6th Cir.1991). In the present case, the district court held, as a matter of law, that even though "injuries due to unsupervised children playing with the lighter may be foreseeable, such risks are not unreasonable." Kirk v. Hanes, 771 F.Supp. 856, 859 (E.D.Mich.1991). Therefore, the district court concluded, Bic's failure to "child-proof" its lighters was not actionable under Michigan law. Id. 2 We agree.

If the issue in this case is stated broadly, i.e., whether a manufacturer of a simple tool is required to design safety features to protect users from dangers that are obvious and inherent in the tool's utility, that question has been squarely addressed by the Michigan Supreme Court and resolved in favor of the manufacturer. See Fisher v. Johnson Milk Co., 383 Mich. 158, 174 N.W.2d 752, 753 (1970).

Even if the relevant issue is stated more narrowly (to avoid the controlling effect of Fisher ), i.e., whether a manufacturer of a disposable lighter must child-proof its product, that question was addressed recently by a Michigan appellate court and, on the authority of Fisher, resolved in favor of the manufacturer. See Adams v. Perry Furniture Co., 198 Mich.App. 1, 497 N.W.2d 514, 520 (1993), application for lv. to app. filed, (No. 95875) (Feb. 9, 1993).

Kirk argues that Fisher should not control because it is out of step with recent Michigan Supreme Court decisions. Therefore, Kirk also argues that, because Adams's reliance upon Fisher was error, Adams should be ignored. In support of his claims, Kirk cites Glittenberg v. Doughboy Recreational Industries, 441 Mich. 379, 491 N.W.2d 208, 214 (1992), and Owens v. Allis-Chalmers Corp., 414 Mich. 413, 326 N.W.2d 372, 377 (1982).

The task of this court, sitting in diversity, is to apply the same law as would be applied by the Michigan state courts. See Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Where a state's highest court has spoken to an issue, we are bound by that decision unless we are convinced that the high court would overrule it if confronted with facts similar to those before us. Bernhardt v. Polygraphic Co. of Am.,, 350 U.S. 198, 205, 76 S.Ct. 273, 277, 100 L.Ed. 199 (1956). Moreover, where a state appellate court has resolved an issue to which the high court has not spoken, "we will normally treat [those] decisions ... as authoritative absent a strong showing that the state's highest court would decide the issue differently." Garrett v. Akron-Cleveland Auto Rental, Inc. (In re Akron-Cleveland Auto Rental, Inc.), 921 F.2d 659, 662 (6th Cir.1990) (emphasis added).

Because we are not convinced that Fisher would be overruled by the Michigan Supreme Court, or that Adams would be rejected by that court, we hold that these cases control and bar Kirk's products liability claim based upon Bic's allegedly defective design.


In Fisher, as in the present case, the plaintiff claimed that the manufacturer of a simple tool was negligent for failing to design a safety device to protect him from an obvious danger associated with its use. Fisher, 174 N.W.2d at 753. The court observed that a "manufacturer cannot manufacture a knife that will not cut or a hammer that will not mash a thumb or a stove that will not burn a finger." Id. (quoting Jamieson v. Woodward & Lothrop, 247 F.2d 23, 26 (D.C.Cir.), cert. denied, 355 U.S. 855, 78 S.Ct. 84, 2 L.Ed.2d 63 (1957)). Therefore, the court held, manufacturers of such simple tools have "no duty to warn or protect against dangers obvious to all." Id. (emphasis added).

Kirk contends that Fisher is no longer "good law" because Prentis v. Yale Mfg. Co., 421 Mich. 670, 365 N.W.2d 176 (1984), changed the standard for assessing manufacturers' liability for negligent design. In Prentis, the court adopted a "pure negligence, risk-utility test." Id. 365 N.W.2d at 186. Under this test, a product is "defective" and "unreasonably dangerous" if it poses an unreasonable risk of foreseeable injury. Id. at 187.

Even though Fisher was decided prior to Prentis, it also applied a "pure negligence" standard. There, the plaintiff sued the manufacturer of a wire, milk bottle carrier because, when the plaintiff dropped the carrier, the milk bottles broke and he cut his hand on one of the fragments. Although the court phrased its holding in terms of "duty," Fisher, 174 N.W.2d at 753, the holding clearly rests, in modern parlance, on the ground that the manufacturer did not breach its duty to market products free from unreasonable risk of foreseeable harm. While the risks that glass bottles will break or that broken glass might injure someone are inarguably foreseeable, the court determined that such risks, as a matter of law, were not unreasonable given the obvious nature of the danger and the simple nature of the product. Id. at 753-54.

Our conclusion that Fisher remains viable and bars Kirk's claim is consistent with the result recently reached, on nearly identical facts, by the Michigan Court of Appeals in Adams v. Perry Furniture Co., 497 N.W.2d 514 (Mich.Ct.App.1993). On the continued strength of Fisher, the court held that Bic's failure to child-proof its lighters was not actionable under Michigan law. Id. at 520. The court reasoned that, although the risk that a child might injure himself with a lighter is foreseeable, such a risk is not unreasonable because the danger is obvious to adults who were the intended users of the product and who had been specifically warned to keep the lighter out of the hands of children. Id. Rather than hold Bic liable for the child's injuries, the court held that "the risk of danger to children is best obviated by the supervisory control of the product by its adult purchasers." Id. To hold otherwise, the court said, would be to make the manufacturer the insurer of its product, a position Michigan courts have consistently refused to take. Id.


Kirk argues that Owens overruled Fisher and limited the "open and obvious danger" rule to cases based upon a failure to warn, rather than a design defect. We disagree. The court in Owens affirmed a directed verdict in favor of a forklift manufacturer on the ground that the plaintiff had not proven that the lack of driver restraints presented an unreasonable risk of harm. In reaching this conclusion, however, the court declined to hold that, simply because the lack of driver restraints was "open and obvious," the forklift manufacturer could not be liable under Fisher. Owens, 326 N.W.2d at 376-77.

Owens, however, focused on the manufacturer's alleged negligence in designing a forklift, a complex machine. Thus, it was a factually inappropriate case in which to apply the simple tool doctrine adopted in Fisher, a distinction which the court in Owens expressly acknowledged.

Our Court of Appeals has essentially limited language in our decision in Fisher by the fact that Fisher involved a simple product or tool. We believe that such a limitation is proper. Obvious risks may be unreasonable risks, and there is no justification for departing from general negligence ... principles merely because the dangers are patent.

Id. at 377 (emphasis added and citations omitted).

The last sentence quoted, upon which Kirk relies, must be read in light of the ratification of Fisher which precedes it. Obvious risks presented by one aspect of a complex machine, such as the forklift...

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