Sundberg v. Keller Ladder

• Decision Date: 21 March 2002
• Docket Number: No. 00-10117-BC.,00-10117-BC.
• Citation: 189 F.Supp.2d 671
• Parties: Rodney SUNDBERG, Plaintiff, v. KELLER LADDER, a/k/a Keller Ladder Division, and Relleck Industries, Inc., f/k/a Keller Industries, Inc., Keller Ladders, Inc., and Builders Square, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

189 F.Supp.2d 671

Rodney SUNDBERG, Plaintiff, v.KELLER LADDER, a/k/a Keller Ladder Division, and Relleck Industries, Inc., f/k/a Keller Industries, Inc., Keller Ladders, Inc., and Builders Square, Inc., Defendants.

No. 00-10117-BC.

United States District Court, E.D. Michigan, Northern Division.

March 21, 2002.

COPYRIGHT MATERIAL OMITTED

Paul L. Kaliszewski, Southfield, MI, for Plaintiff.

Edward J. Higgins, Plunkett & Cooney, Detroit, MI, James D. Wilson, Plunkett & Cooney, Ann Arbor, MI, Michael D. Fishman, Rader, Fishman, Bloomfield Hills, MI, Paul V. Kaulas, Purcell & Wardrope, Jonathan P. Schaefer, Purcell & Wardrope, Chicago, IL, for Defendants.

OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION AND CLARIFYING PREVIOUS ORDER PRECLUDING PLAINTIFF'S USE OF EXPERT TESTIMONY

LAWSON, District Judge.

The plaintiff in this case alleges that he was injured by an aluminum extension ladder which he purchased from Builders Square, Inc., in Canton, Michigan.The ladder, manufactured by defendantKeller Ladders, Inc., was rated at a capacity of 200 pounds.The plaintiff contends that on March 1, 1997he mounted the ladder at his full weight of 150 pounds, and that the ladder collapsed; he was injured by the resulting fall to the ground.

The plaintiff filed a product's liability action in the Iosco County Circuit Court alleging negligence in the design and manufacture of the ladder and breach of express and implied warranties.The defendants timely removed this case to this Court.

A case management order was entered, and thereafter the defendants filed a motion for sanctions because of repeated discovery and disclosure violations concerning expert witnesses, whom defendants believed should be precluded from testifying in the case.The defendants also moved for summary judgment, reasoning that because expert testimony was essential to all of the plaintiff's claims, they could not be proved at trial without it.On November 8, 2001, this Court filed an opinion and order precluding the plaintiff from calling an expert witness at trial, dismissing the plaintiff's negligent design and manufacturing claims, and permitting the plaintiff's breach of warranty claims to proceed.

The defendants have now filed a motion for reconsideration, claiming that this Court's decision contains several palpable defects.First, the defendants state that the opinion improperly concluded that the standard of liability for breach of warranty is different from that for a claim for negligent design or manufacture.Second, the defendants claim that the Court improperly found that an implied warranty claim is equivalent to strict liability.Third, the defendants contest the conclusion that the plaintiff provided evidence of circumstances sufficient to give rise to an inference of defect traceable to the manufacturer.Fourth, the defendants suggest that the plaintiff has made no affirmative showing, going beyond his pleadings, that any warranty was breached at any time.The Court ordered a response from the plaintiff, which was filed, and the matter is now ready for decision.

The Court finds that the defendants have not made the necessary showing to justify reconsideration and that the Court's original decision was correct.The defendants have not properly characterized the state of Michigan product liability law concerning breach of warranty claims, they have misrepresented the holding of state law precedent, and they failed to demonstrate a palpable defect in this Court's prior decision.The motion for reconsideration will be denied.

I.

The Court will grant a motion for reconsideration if the moving party shows: (1) a "palpable defect,"(2) that the defect mislead the Court and the parties, and (3) that correcting the defect will result in a different disposition of the case.E.D. Mich. LR 7.1(g)(3).A "palpable defect" is a defect which is obvious, clear, unmistakable, manifest, or plain.Fleck v. Titan Tire Corp.,177 F.Supp.2d 605, 624(E.D.Mich.2001).Further, the Local Rules also provide that any "motion for rehearing or reconsideration which merely present the same issues ruled upon by the Court, either expressly or by reasonable implication, shall not be granted."E.D. Mich. LR 7.1(g)(3).

II.

A.

The defendants first argue that the elements of a claim for negligent manufacturing and design, and one for breach of warranty are the same, and the Court's contrary conclusion was erroneous.The defendants contend that the implied warranty theory originally functioned as a form of strict liability in tort, requiring only proof that a "defect" existed at the time the subject product left the control of the defendant.SeePiercefield v. Remington Arms Co.,375 Mich. 85, 133 N.W.2d 129(1965).As time went by, the argument goes, the application of this doctrine evolved such that the standard of liability for breach of implied warranty in design and warnings cases was identical to the standard of liability for negligence.The defendants refer to Smith v. E.R. Squibb & Sons, Inc.,405 Mich. 79, 273 N.W.2d 476(1979), andPrentis v. Yale Mfg. Co.,421 Mich. 670, 365 N.W.2d 176(1984).Directing the Court to Holdsworth v. Nash Mfg. Inc.,161 Mich.App. 139, 409 N.W.2d 764(1987), the defendants assert that even though plaintiffs are not required to prove negligence in a manufacturing defect case, the existence of a defective condition in such a case is nevertheless measured by a negligence standard.

Thus, the defendants conclude that the Court's opinion contains several errors.First, they are critical of the Court's citation to Hollister v. Dayton Hudson Corp.,201 F.3d 731(6th Cir.2000), for the proposition that "requirements for an implied warranty cause of action ... are less stringent" than for a negligence cause of action because that case referred to implied warranty claims against non-manufacturing sellers, and the case specifically held that the requirements are identical when the manufacturer manufactured the subject product.The Hollister Court specifically noted:

Hollister's and the district court's confusion as to the appropriate legal standard most likely stems from the fact that, in cases where a seller is also the manufacturer, Michigan courts have observed that claims of negligence and breach of implied warranty are, for all intents and purposes, identical.The reason for this confluence is that a plaintiff alleging breach of implied warranty on the part of a seller must show that the purchased product was defective.That showing, in turn, requires proof that the product's manufacturer acted negligently, typically by omitting a safety feature or in failing to give warning of a latent danger.A suit for breach of implied warranty against a seller who is also the manufacturer will therefore require the same showing of negligence on the defendant's part as an ordinary products liability suit against a manufacturer.

Hollister,201 F.3d at 736-37.

The defendant also expressed dismay at the Court's treatment of Bouverette v. Westinghouse Electric Corp.,245 Mich. App. 391, 628 N.W.2d 86(2001), without paying due regard to the defendants' rather unremarkable attempt to distinguish it.The case does contain the following language:

Although in a design defect case the trier of fact must apply "a risk-utility balancing test" that considers alternative safer designs and the accompanying risk pared against the risk and utility of the design chosen, Gregory v. Cincinnati, Inc.,450 Mich. 1, 13, 538 N.W.2d 325(1995), no such analysis is required in a failure to warn case.

Id.Referring to this quote, the defendants note that the implied warranty claim in that case was based on a failure to warn, which has not been pleaded in this case.Seeid.The defendants also contend that the case says nothing about implied warranty liability standards being distinct from negligence; the only thing the court did was attempt to reconcile inconsistent jury verdicts.Finally, the defendants conclude that the Bouverette court was considering evidence of "defect" proffered by an expert witness, and the plaintiffs cannot prove a "defect" without expert testimony.

The defendants' argument must be rejected for several reasons.Initially, the defendants purport to outline the history of products liability that reflects Michigan case law, but the summary more closely resembles the process leading to the adoption of the Restatement (Third) of Torts: Products Liability(1998), with occasional Michigan citations inserted for appearances.According to the Restatement, modern products liability began with strict liability for unreasonably dangerous products under Section 402A of the Restatement (Second) of Torts.That section then evolved into the recognition of three types of product defects: manufacturing defects, design defects, and information defects from failure to warn.Subsequently, many scholars and states suggested that strict liability was inappropriate for design defect claims and recommended a negligence standard for both design and information defects, but retained strict liability for manufacturing defects.Although the separate action of "implied warranty" had long co-existed with more formal product liability tort actions, it became duplicative and confusing.See Restatement (Third) of Torts: Products Liability§ 2(1998) and analysis therein.

It is true that the modern history of products liability in Michigan began with Piercefield v. Remington Arms, but the Court cannot accept the defendants' attempt to revise the history of Michigan products liability law from Prentis onward.The defendants incorrectly state that after Prentis the implied warranty theory applied only to cases alleging proven manufacturing defects.That is not true, and not surprisingly, the defendants provide no citation for this declaration.As the Court previously stated in its Opinion and Order, a cause of action for implied warranty requires that ...