Swix v. Daisy Mfg. Co., Inc.

• Decision Date: 23 June 2004
• Docket Number: No. 02-2154.,02-2154.
• Citation: 373 F.3d 678
• Parties: Randy SWIX, Pamela Swix, Co-Conservators of the Estate of Aaron Ray Swix, Plaintiffs-Appellants, v. DAISY MANUFACTURING CO., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

373 F.3d 678

Randy SWIX, Pamela Swix, Co-Conservators of the Estate of Aaron Ray Swix, Plaintiffs-Appellants, v. DAISY MANUFACTURING CO., INC., Defendant-Appellee.

No. 02-2154.

United States Court of Appeals, Sixth Circuit.

Argued: March 11, 2004.

Decided and Filed: June 23, 2004.

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Clark Shanahan (argued and briefed), Shanahan & Hoy, Owosso, MI, for Plaintiffs-Appellants.

Jack O. Kalmink (argued and briefed), Paul C. Smith (briefed), Clark Hill PLC, Detroit, MI, for Defendant-Appellee.

Before: MARTIN, CLAY, and CUDAHY,^* Circuit Judges.

OPINION

CUDAHY, Circuit Judge.

Your mother refused to buy you a BB gun, warning that "you'll shoot your eye out." Apparently she was right to be concerned. Based on the facts of this case and a review of other cases on the topic, it seems that BBs are attracted to children's eyes as politicians are attracted to television cameras. After losing the use of one eye, Aaron Swix together with his parents brought this products liability action against Daisy, the manufacturer of the air rifle which was used to shoot him, alleging that the air rifle was defectively designed. The district court dismissed Swix's complaint. This appeal followed.

I

In May of 1999, Albert Carl Porrit purchased a Daisy Powerline 856 air rifle for his minor grandson, Nicholas Porritt. The air rifle was kept in a locked gun cabinet. On April 20, 2000, Nicholas, then age eleven, removed the loaded air rifle from the gun cabinet without permission. According to his affidavit, Nicholas took the safety lock off the gun and checked to see if the air rifle was empty. App. at 45. He then shook the rifle with the barrel facing down toward the floor. He pulled the bolt back and tilted the gun towards himself to see if there was a BB inside the rifle. He believed at this point that the rifle was empty. He subsequently pumped the rifle about five times and shot it at the floor. Only air came out. He then took the air rifle to the basement, pumping the rifle as he walked. When he got to the basement, he began to watch a movie and held the air rifle in his lap. Halfway through the movie, he picked up the air rifle, pointed it at his ten-year old friend Aaron Swix and "the air rifle went off." Id. According to the plaintiffs, the result was painful and permanent injury to Aaron Swix and virtually complete loss of sight in his left eye.

On January 14, 2002, Aaron Swix and his parents filed a products liability suit against Daisy Manufacturing Company, in the Eastern District of Michigan, seeking one million dollars and alleging claims of defective design and failure to warn of a known danger. In their amended complaint, the plaintiffs argued that "[t]he BB storage magazine in the model was dangerously and defectively designed [in that] ... it allowed a BB to become lodged in the forward portion, between the barrel and interior of the outer barrel assembly ... thus misleading the operator to believe ... the air rifle, to be completely empty of BBs, [even after pumping and firing], when, in fact, a BB would still be present in the magazine." App. at. 8.

On March 14, 2002, Daisy filed a motion to dismiss the complaint arguing that a gun is a "simple tool" under Michigan law and the dangers of pointing it at another person are "open and obvious." On April 18, 2002, plaintiffs filed a motion for partial summary judgment on the issue of Daisy's liability but apparently they failed to file a timely memorandum in support. On August 14, 2002, the parties appeared at a telephonic hearing before Magistrate Judge Steven Pepe. At that hearing, Magistrate Judge Pepe granted the plaintiffs' motion to amend their complaint to include the allegation that "[d]efendant's primary marketing target (and principle [sic] consumers) was/were children and young adults" and that "[t]he model was particularly dangerous and defective when placed in the hands of minor children." App. at 111, 113. The magistrate stated that "Defendant's motion to dismiss will apply to the amended complaint." App. at 113.

When the district court granted the defendant's motion to dismiss one week later, on August 22, 2002, however, it gave no indication that it was aware of the recent amendment to the complaint. App. at 14-23. In oral argument, the parties agreed that Judge Woods may have been unaware of the amendment at the time he granted the motion to dismiss. In the same order, Judge Woods denied plaintiff's motion for partial summary judgment as moot. This appeal followed.

II

The parties do not dispute that Michigan state law applies in this diversity suit brought under 28 U.S.C. § 1332. The task of this Court, sitting in diversity, is to apply the same law as would be applied by Michigan state courts. See Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 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. See Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). Where a state appellate court has resolved an issue to which the high court has not spoken, "we will normally treat [such] decisions ... as authoritative absent a strong showing that the state's highest court would decide the issue differently." In re Akron-Cleveland Auto Rental, Inc., 921 F.2d 659, 662 (6th Cir.1990).

The district court dismissed Swix's complaint in this case finding that he had failed to establish that Daisy owed Swix a duty of care. App. at 23. Under Michigan law, both a failure to warn claim and a defective design claim require a plaintiff to establish that the defendant owed him a duty of care. See Davis v. McCourt, 226 F.3d 506, 511 (6th Cir.2000); Kirk v. Hanes Corp. of North Carolina, 16 F.3d 705 (6th Cir.1994). There is also a defense under Michigan law to the duty requirement in a failure to warn and in a defective design claim known as the "simple tool rule." See Fisher v. Johnson Milk Co., Inc., 383 Mich. 158, 174 N.W.2d 752 (Mich.1970); Kirk, 16 F.3d at 705.

In Fisher, a failure to warn case, a milkman sold a patent attorney a wire carrier made to carry four half-gallon bottles of milk. Id. at 159, 174 N.W.2d 752. On arriving home from the market with his carrier containing four milk bottles, the attorney slipped on some ice in such a manner that the bottom of the carrier struck the sidewalk, causing the bottles to break. Id. at 160, 174 N.W.2d 752. He extended a hand in order to break his fall and his palm landed on a piece of broken bottle, severely injuring his hand. The attorney brought suit against the manufacturer of the wire carrier. The court in Fisher found that "a manufacturer owes no duty to warn of an open and obvious danger associated with the use of a simple [tool]." Davis, 226 F.3d at 511 (discussing Fisher). The parties do not dispute that this is a correct statement of law with respect to a failure to a warn claim.

A. Is the "simple tool" rule an absolute defense to a defective design claim?

The parties do seem to disagree, however, whether the fact that a product is deemed a "simple tool" and the danger is "open and obvious" is an absolute defense to a defective design claim or whether the obviousness of a danger is merely one factor in the analysis of whether the risks are unreasonable in light of the foreseeable injuries. We agree with virtually every Michigan court which has opined on the matter, all of which have suggested that the obviousness of a danger is merely one factor in the analysis of whether the risks are unreasonable in light of the foreseeable injuries. See, e.g., Owens v. Allis-Chalmers Corp., 414 Mich. 413, 425, 326 N.W.2d 372, 377 (Mich.1982) ("As in Fisher, the obviousness of the risks that inhere in some simple tools or products is a factor contributing to the conclusion that such products are not unreasonably dangerous. The test, however, is not whether the risks are obvious, but whether the risks were unreasonable in light of the foreseeable injuries"); Cacevic v. Simplimatic Eng'g Co., 241 Mich.App. 717, 725, 617 N.W.2d 386, 390-92 (Mich.Ct.App.2000), vacated in part on other grounds, 463 Mich. 997, 625 N.W.2d 784 (Mich.2001) ("[A] manufacturer in a case alleging design defects is not absolved of liability simply because the danger associated with the product (simple or nonsimple) is open and obvious."); Boumelhem v. Bic Corp., 211 Mich.App. 175, 181, 535 N.W.2d 574, 577-78 (Mich.Ct.App.1995) (holding the same relying, inter alia, on Owens and Glittenberg v. Doughboy Recreational Indus., 441 Mich. 379, 491 N.W.2d 208 (Mich.1992)); Adams v. Perry Furniture Co., 198 Mich.App. 1, 14, 497 N.W.2d 514, 520 (Mich.Ct.App.1993) ("The test in design defect cases concerning simple tools is whether the risks are unreasonable in light of the foreseeable injuries."), overruled on other grounds by Allied Elec. Supply Co., Inc. v. Tenaglia, 461 Mich. 285, 602 N.W.2d 572 (Mich.1999); Restatement (Third) of Torts: Prod. Liab. § 2 (1998) (noting that "[a] strong majority of courts [including Michigan in Owens] have rejected the `open and obvious' ... rule as an absolute defense ... [and][a]cademic commentators have been almost unanimous in their criticism of the ... rule."). The Supreme Court of Michigan has explained why obvious dangers should be treated differently in the design defect context than in the failure to warn context. See Glittenberg, 441 Mich. at 394, 491 N.W.2d at 215. In Glittenberg, the Court explained:

In the design defect context, obvious risk may unreasonably breach the duty to adopt a design that safely and feasibly guards against foreseeable misuse. Because the manufacturer's liability for choice of design is not determined solely by looking at the obvious nature of the alleged defect, obviousness of the danger does not preclude the possibility that an alternative design could reduce the...