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STATE OF MICHIGAN
COURT OF APPEALS


ERIC HALL, Plaintiff-Appellant, v BLACK & DECKER, INC., Defendant-Appellee.

UNPUBLISHED November 28, 2000

No. 218150 Lapeer Circuit Court LC No. 97-023816-NO

Before: Collins, P.J., and Jansen and Zahra, JJ. PER CURIAM. Plaintiff appeals as of right from an order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). We affirm. This is a product liability case in which plaintiff severely cut his left hand while operating a radial arm saw manufactured by defendant1 on August 26, 1996, during the course of his employment with Peninsular Slate. One of plaintiff's jobs was to cut aluminum pieces of trim for chalkboards made by Peninsular Slate. During the course of cutting these aluminum trim pieces, plaintiff cut his hand on the saw blade. Plaintiff's complaint alleges negligence and breach of warranty in the design, manufacture, and sale of the radial arm saw. Specifically, with respect to the negligence claim, plaintiff alleges that defendant defectively designed the saw because it did not include a lower blade guard and an automatic return device as standard equipment on the saw and that defendant failed to warn about the dangerous propensities of the radial arm saw. In ruling on the motion for summary disposition, the trial court ruled that plaintiff failed to establish a design defect because the evidence was undisputed that plaintiff's employer would not have used a lower blade guard. The trial court also ruled that there was no evidence that the use of rubber padding on the back of the table or an automatic return device would have prevented plaintiff's injury because there was no evidence that plaintiff was injured as a result of the saw drifting forward, thus, plaintiff did not prove causation. With respect to the failure to warn claim, the trial court ruled that the danger was open and obvious. Lastly, with respect to the
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The saw in question was manufactured in June 1968.

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breach of warranty claim, the trial court ruled that, there being no proof of a design defect or causation, the breach of warranty claim could not stand. We review de novo a trial court's ruling on a motion for summary disposition. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR 2.116(C)(10) tests the factual support of a claim and the court is to consider the pleadings, depositions, admissions, affidavits, and any other documentary evidence filed in the action or submitted by the parties in a light most favorable to the nonmoving party. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). The court must determine whether a genuine issue of any material fact exists to warrant a trial. Spiek, supra, p 337. We need not address whether the trial court's ruling with respect to whether plaintiff established that the radial arm saw was defectively designed for failing to have a lower blade guard, rubber padding at the back of the table, or an automatic return device was proper because we find that the trial court correctly determined that there was no evidence that the radial arm saw actually drifted forward and cut plaintiff's hand. In other words, plaintiff has failed to set forth evidence regarding causation, therefore, he cannot establish a product liability claim. Skinner v Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994). In the present case, even assuming that plaintiff established a design defect pursuant to the requirements of MCL 600.2946(2); MSA 27A.2946(2) in that the radial arm saw did not have a lower blade guard, rubber padding at the back of the table, and an automatic return device, plaintiff has not established how his hand was cut by the saw. There were no witnesses at the time that plaintiff cut his hand. The only testimony regarding how the injury occurred came from plaintiff's deposition testimony; however, his deposition testimony simply does not set forth sufficient evidence regarding how the radial arm saw actually cut his hand. We set forth the pertinent deposition testimony here: Q. [By defense counsel] Okay. What do you think happened differently at the time you injured your hand? A. [By plaintiff] That, I can't recall. Q. Well, the saw was on? A. The saw was on, yes. Q. Okay. And do you remember the position of the carriage at the time you injured your hand? A. No, I do not. Q. Do you know whether it was all the way back? A. Yes. I believe it was all the way back. Q. Okay. Had you just finished a cut?

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A. Yes, I had. Q. And

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