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Michigan Supreme Court Lansing, Michigan

Opinion
CHERYCE GREENE, as Personal Representative of the Estate of Keimer Easley, Deceased, Plaintiff-Appellee, v A.P. PRODUCTS, LTD., and REVLON CONSUMER PRODUCTS CORPORATION, Defendants-Appellants, and SUPER 7 BEAUTY SUPPLY, INC., f/k/a PRO CARE BEAUTY SERVICE, INC, f/k/a PRO CARE BEAUTY SUPPLY, Defendants-Appellees, and RAANI CORPORATION, Defendant. _______________________________ CHERYCE GREENE, as Personal Representative of the Estate of Keimer Easley, Deceased, Plaintiff-Appellee, v

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 19, 2006

No. 127718

No. 127734

A.P. PRODUCTS, LTD., and REVLON CONSUMER PRODUCTS CORPORATION, Defendants-Appellees, and SUPER 7 BEAUTY SUPPLY, INC., f/k/a PRO CARE BEAUTY SERVICE, INC., f/k/a PRO CARE BEAUTY SUPPLY, Defendants-Appellants, and RAANI CORPORATION, Defendant. _______________________________ BEFORE THE ENTIRE BENCH CORRIGAN, J. In this case we consider the scope of a manufacturer's or seller's duty to warn of product risks under MCL 600.2948(2). We conclude that the statute imposes a duty to warn that extends only to material risks not obvious to a reasonably prudent product user, and to material risks that are not, or should not be, a matter of common knowledge to persons in the same or a similar position as the person who suffered the injury in question. Because the material risk

associated with ingesting and inhaling Wonder 8 Hair Oil, as occurred here, would have been obvious to a reasonably prudent product user, the failure to warn against the risk is not actionable. The Court of Appeals misunderstood this duty and held that a duty also existed to warn of the kind of injuries that were suffered. The Court of Appeals also incorrectly allowed various warranty claims to proceed on
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the basis that the warning was inadequate. Because no warning was required, these holdings were in error. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court's order granting summary disposition to all defendants. I. UNDERLYING FACTS AND PROCEDURAL HISTORY In April 1999, plaintiff purchased a spray bottle of African Pride Ginseng Miracle Wonder 8 Oil, Hair and Body Mist-Captivate (Wonder 8 Hair Oil) from defendant Pro Care Beauty Supply, which is currently known as Super 7 Beauty Supply, Inc. Defendant A.P. Products, which was subsequently acquired by

Revlon Consumer Products Corporation, packaged and labeled Wonder 8 Hair Oil. Wonder 8 Hair Oil was marketed principally to African-Americans as a new type of spray-on body and hair moisturizer containing eight natural oils. Plaintiff decided to try the oil after reading the ingredients on the label,1 some of which were familiar to her and some of which were not. Although the bottle's label cautioned the user never to spray the oil near sparks or an open flame, it did not warn that the hair oil should be kept out of reach of children or that it was

The ingredients listed on the label are Gin Gro Oil Complex (paraffin oil, tea tree oil, kuki nut oil, evening primrose oil, avocado oil, coconut oil, wheat germ oil), isopropryl myristate, fragrance, Gin Gro herbal complex (rosemary, sage, angelica root, licorice root, Job's tears, cedar, hyacinth, clove, lemon balm, chamomile), carrot oleo resin, azulene, tocopherol acetate (Vitamin E), retinyl palmitate (Vitamin A), and cholecalciferol (Vitamin D).

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potentially harmful or fatal if swallowed.2 Plaintiff's 11-month-old son, Keimer Easley, had been left unattended. Somehow he obtained the bottle of hair oil, which had been left within his reach. He ingested and inhaled the hair oil.3 The child died about one month later from multisystem organ failure secondary to chemical pneumonitis, secondary to hydrocarbon ingestion. In other words, the mineral oil clogged the child's lungs, causing inflammatory respiratory failure. Plaintiff filed this product-liability action, alleging that defendants breached their duty to warn that the product could be harmful if ingested and that it should be kept out of reach of small children. Plaintiff further claimed that defendants breached an implied warranty by failing adequately to label the product as toxic. Defendants moved for summary disposition. AP Products and Revlon

argued that they had no duty to warn because the material risks associated with ingesting Wonder 8 Hair Oil were obvious to a reasonably prudent product user.

The hair oil was packaged in a clear plastic 7.5 ounce bottle with a nonaerosol pump actuator. When plaintiff first observed that her son had possession of the hair oil, he was standing with the bottle of Wonder 8 Oil in his hand and oil in and around his mouth. Evidently, the child put an unknown amount of hair oil into his mouth, some of which eventually wound up in his lungs. When he was admitted to the hospital, he was diagnosed with hydrocarbon ingestion and chemical pneumonitis. It is not clear how Keimer managed to put the oil into his mouth. Plaintiff testified that when she last used the product earlier that day, the cap had been intact. When she later saw the child with the bottle of oil, the plastic top covering the pump actuator and the actuator were missing. The plastic base of the pump actuator had been cracked vertically so that the pump could be peeled off and the oil could be poured out.
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They further argued that the lack of warning was not the proximate cause of the injury and that the product had been misused in a way that was not reasonably foreseeable. Super 7 Beauty Supply argued that plaintiff failed to establish that it, as a nonmanufacturing seller, had independently breached an express or implied warranty or was independently negligent. It further argued that plaintiff failed to show that the product was not fit for its ordinary uses or for a particular purpose. The trial court granted defendants' motions for summary disposition. The Court of Appeals reversed and remanded, concluding that the questions whether the Wonder 8 Hair Oil required a warning label, whether defendants breached an implied warranty, and whether plaintiff established proximate cause should have been submitted to a jury.4 Defendants sought leave to appeal in this Court. We granted defendants' applications for leave to appeal.5 II. STANDARD OF REVIEW This case requires us to determine whether the Court of Appeals erred in reversing the trial court's grant of summary disposition in favor of defendants under MCR 2.116(C)(10). We review this issue de novo. Rose v Nat'l Auction Group, 466 Mich 453, 461; 646 NW2d 455 (2002), citing Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). "In reviewing such a decision, we consider

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264 Mich App 391; 691 NW2d 38 (2004).
474 Mich 886 (2005).


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the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion." Rose, supra at 461, citing Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). "Summary disposition under MCR 2.116(C)(10) is appropriately granted if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Rose, supra at 461, citing MCR 2.116(C)(10). III. ANALYSIS Before 1995, a manufacturer's or seller's duty to warn of material risks in a product-liability action was governed by common-law principles. Tort reform legislation enacted in 1995,6 however, displaced the common law. MCL

600.2948, in chapter 29 of the Revised Judicature Act, now governs a defendant's duty to warn of an obvious danger in a product-liability action. It states, in relevant part: A defendant is not liable for failure to warn of a material risk that is or should be obvious to a reasonably prudent product user or a material risk that is or should be a matter of common knowledge to persons in the same or similar position as the person upon whose injury or death the claim is based in a product liability action. [MCL 600.2948(2).][7]

1995 PA 249, effective March 28, 1996. At common law, a duty to warn of dangers involving the use of a product was imposed on a manufacturer or seller under negligence principles summarized in 2 Restatement Torts, 2d,

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