Mallard v. Hoffinger Industries, Inc., 194746

• Citation: 564 N.W.2d 74,222 Mich.App. 137
• Decision Date: 04 March 1997
• Docket Number: No. 194746,194746
• Parties: , Prod.Liab.Rep. (CCH) P 14,913 Charles James MALLARD, Conservator of the Estate of Charles Edward Mallard, a Minor, Charles Mallard and Donna Mallard, Plaintiffs-Appellants, v. HOFFINGER INDUSTRIES, INC., and Pool Town Distributing, Inc., Defendants-Appellees. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 74

564 N.W.2d 74

222 Mich.App. 137, Prod.Liab.Rep. (CCH) P 14,913

Charles James MALLARD, Conservator of the Estate of Charles

Edward Mallard, a Minor, Charles Mallard and Donna

Mallard, Plaintiffs-Appellants, v. HOFFINGER INDUSTRIES, INC., and Pool Town Distributing,

Inc., Defendants-Appellees. (On Remand)

No. 194746.

Court of Appeals of Michigan.

Submitted May 10, 1996, at Lansing.

Decided March 4, 1997, at 9:15 a.m.

Released for Publication May 15, 1997.

[222 Mich.App. 138] Ronald R. Gilbert, P.C. by Ronald R. Gilbert, Detroit, and Roth and Dean by Sanford Roth, Southfield, for plaintiffs-appellants.

Harvey, Kruse, Westen & Milan, P.C. by George W. Steel and Michael J. Guss, Flint, for Hoffinger Industries, Inc.

Vandeveer Garzia, P.C. by Dennis B. Cotter and Hal O. Carroll, Detroit, for Pool Town Distributing, Inc.

[222 Mich.App. 139] Before CORRIGAN, P.J., and MARK J. CAVANAGH and MARILYN J. KELLY, JJ.

ON REMAND

PER CURIAM.

This case is before us for the second time. The Supreme Court has remanded the case for plenary consideration of whether the trial court erred in granting summary disposition of plaintiffs' design defect claim. 451 Mich. 884, 549 N.W.2d 573 (1996). We affirm.

On August 15, 1990, plaintiff Charles Edward Mallard dove headfirst into an above-ground swimming pool and sustained injuries to his spinal cord that left him a quadriplegic. At that time, he was thirteen years and eleven months old. Plaintiffs filed lawsuits alleging failure to warn and defective design. ¹ The trial court granted defendants' motions for summary disposition pursuant to MCR 2.116(C)(8). ² Plaintiffs appealed, and, relying upon Glittenberg v. Doughboy Recreational Industries (On Rehearing), 441 Mich. 379, 491 N.W.2d 208 (1992), we held that an above-ground pool is a simple product whose manufacturer or seller has no duty to warn users, regardless of age, of potentially dangerous conditions or characteristics that are readily apparent or visible on casual inspection. Mallard v. Hoffinger Industries, Inc., 210 Mich.App. 282, 285-286, 533 N.W.2d 1 (1995). Pursuant to the Supreme Court order of remand, we now address plaintiffs' claim that the trial court erred in granting summary disposition of the claim of defective design.

On appeal, an order granting or denying summary disposition is reviewed de novo. Plieth v. St. Raymond Church, 210 Mich.App. 568, 571, 534 N.W.2d 164 (1995). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint. It should be granted only if the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Ladd v. Ford Consumer Finance Co., Inc., 217 Mich.App. 119, 125, 550 N.W.2d 826 (1996).

Plaintiffs assert that the pool was defectively designed because it did not have either a padded bottom or a slippery bottom liner. Plaintiffs contend that either of these modifications would have prevented, or at least reduced the severity of, the injury.

The Supreme Court has recognized that an above-ground pool is a simple product because no one can possibly mistake it for anything other than what it is, that is, a large container of water that sits on the ground. Glittenberg, supra at 399, 491 N.W.2d 208. In Glittenberg, the Court held that the manufacturer of a simple product has no duty to warn of the potentially dangerous conditions or characteristics of the product that are readily apparent or visible upon casual inspection. Id. at 385, 491 N.W.2d 208.

Plaintiffs argue that, in contrast to a failure to warn claim, the fact that a danger is open and obvious is irrelevant to a design defect claim. In their brief on remand, plaintiffs quote a number of passages from the Supreme Court's opinion in Glittenberg that they assert are dispositive of the claim that the trial court erred in granting summary disposition. ³

As a general rule, under Michigan law a manufacturer has a duty to design its product so as to eliminate any unreasonable risk of foreseeable injury. Prentis v. Yale Mfg. Co., 421 Mich. 670, 693, 365 N.W.2d 176 (1984). However, the Supreme Court has provided an exception to this rule.

In Fisher v. Johnson Milk Co., Inc., 383 Mich. 158, 174 N.W.2d 752 (1970), the plaintiff slipped on ice and fell while carrying a wire carrier containing four bottles of milk. The impact of the plaintiff's fall caused the bottles to break, and he cut his hand on one of the fragments. Id. at 159-160, 174 N.W.2d 752. The plaintiff claimed the manufacturer of the carrier was negligent in failing to outfit the carrier with a false bottom or other device to protect the bottles from breaking. The Supreme Court, citing Jamieson v. Woodward & Lothrop, 101 U.S.App.D.C. 32, 37, 247 F.2d 23 (1957), the seminal case regarding simple tools, stated that "[t]here is no duty to warn or protect against dangers obvious to all." Fisher, supra at 160, 174 N.W.2d 752 (emphasis added). There was no hidden defect in the carrier. The defendant was not negligent in failing to supply a carrier of a different design because the construction of the wire carrier, and the possibility that bottles contained within it might break if the carrier were dropped, "was plain enough to be seen by anyone." Id. at 160-162, 174 N.W.2d 752. Accordingly, the Court held that the trial court properly granted the defendant's motion for summary disposition.

Subsequently, in Owens v. Allis-Chalmers Corp., 414 Mich. 413, 326 N.W.2d 372 (1982), the Supreme Court affirmed a directed verdict for a forklift manufacturer on the basis that the plaintiff had not proved that the absence of a seat belt presented an unreasonable risk of harm. However, the Court declined the defendant's invitation to hold that because the lack of a seat belt was open and obvious, the manufacturer could not be liable under Fisher. In discussing the issue, the Court said:

Our Court of Appeals has essentially limited the 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. [Owens supra at 425 (emphasis added, citations omitted).]

Thus, the Court stated that a manufacturer of a simple product is not required to design safety features to protect users from dangers that are obvious and inherent in the utility of the product. This rule did not apply in Owens, however, because that case involved an alleged defect in a complex product, a forklift, rather than a simple product.

While we agree with plaintiffs that the Supreme Court's language in Glittenberg appears to suggest that the open and obvious nature of the danger will not preclude any design defect claims, we conclude that the Court was discussing general principles of design defect claims and not their applicability to simple products. ⁴ When discussing a manufacturer's liability for design defects in Glittenberg, the Supreme Court cited Owens for the proposition that obvious risks might unreasonably breach the duty to adopt a design that guards against foreseeable misuse without any indication that it disapproved of Owens' holding that the manufacturer has no duty to protect against known or obvious dangers associated with a simple product. ⁵ Glittenberg, supra at 394, 491 N.W.2d 208. Moreover, the Supreme Court specifically emphasized that Glittenberg "signal[ed] no retreat from Owens." Glittenberg, supra at 396, 491 N.W.2d 208. Accordingly, we conclude that Fisher, as limited by Owens, remains viable.

Our conclusion that the Supreme Court did not intend to alter Owens is supported by the fact that in the Glittenberg opinion, the Court quoted the following passage from Jamieson:

"[W]here a manufactured article is a simple thing of universally known characteristics, not a device with parts or mechanism, the only danger being not latent but obvious to any possible user, if the article does not break or go awry, but injury occurs through a mishap in normal use, the article reacting in its normal and foreseeable manner, the manufacturer is not liable for negligence." [Glittenberg, supra at 391, 491 N.W.2d 208, quoting Jamieson, supra at 37.]

An above-ground swimming pool is a simple product. Glittenberg, supra at 399, 491 N.W.2d 208. It is a large receptacle that holds water. As such, the presence of a bottom is essential to the utility of the pool. The risk of harm from hitting the bottom when diving in shallow water is open and obvious. Id. at 401, 491 N.W.2d 208. Therefore, we conclude that defendants had no duty to design safety features to protect users from injuries sustained from striking the bottom of their pools. Accordingly, we hold that the trial court properly granted defendants' motion for summary disposition of plaintiffs' design defect claim.

As we noted in our previous opinion, this is a distressing case. Nevertheless, neither negligence nor products liability jurisprudence establishes the legal principle that every injury warrants a legal remedy. Glittenberg, supra at 403, 491 N.W.2d 208. Moreover, the Supreme Court has repeatedly noted that manufacturers and sellers are not insurers, and they are not absolutely liable for any and all injuries sustained from the use of their products. Id. at 388, n. 8, 491 N.W.2d 208; Prentis, supra at 683, 365 N.W.2d 176; Owens, supra at 432, 326 N.W.2d 372.

Affirmed.

MARILYN J. KELLY, Judge (concurring ).

I concur with the result reached by the majority opinion. Plaintiffs asserted that, because the above-ground pool did not have a slippery or padded bottom, the pool was defectively designed. The trial court granted defendants' motion for summary disposition based on Glittenberg v. Doughboy Recreational Industries (On Rehearing), 441 Mich. 379, 491 N.W.2d 208 (1992). I agree with plaintiffs that the trial court erred in relying on Glittenberg to dismiss the design defect claim.

Glittenberg did not address the issue of whether a manufacturer has a duty to design a...