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STATE OF MICHIGAN COURT OF APPEALS

KEITH A. FOWLER and EVELYN FOWLER, Plaintiffs-Appellants, v JACK'S CORNER STORES, a/k/a JACK'S CORNER STORE, INC. and STAR 9, INC., ILLINOIS INDUSTRIAL TOOL, INC., and WMH TOOL GROUP, INC., Defendants-Appellees.

UNPUBLISHED July 15, 2010

No. 291020 Muskegon Circuit Court LC No. 04-042992-NP

Before: TALBOT, P.J., and FITZGERALD and DAVIS, JJ. PER CURIAM. Plaintiffs appeal as of right the grant of summary disposition in favor of defendants in this product liability action. We affirm. I. FACTUAL AND PROCEDURAL HISTORY The facts of this product liability case are straightforward. Plaintiff, Keith Fowler ("Fowler"), purchased the 48-inch heavy-duty bungee cord that is the subject of this dispute, along with three similar cords, from defendant, Jack's Corner Store ("Jack's") in July 2003. Jack's purchased the bungee cords, in bulk, from defendant Illinois Industrial Tool, Inc. ("IIT"). There is apparently no dispute that IIT was simply a distributor, which never unpacked or examined the cords, but merely shipped the cords to Jack's after having obtained them from defendant, WMH Tool Group, Inc. ("WMH"). The bungee cords were sold separately, unpackaged, and without any attached warnings, warranties or instructions. Fowler acknowledged that his visual inspection of the bungee cord evidenced no obvious physical defect at the time of purchase. Plaintiffs used the cords on one occasion without a problem during a fishing trip before the incident leading to Fowler's injury occurred. On August 4, 2003, Fowler was using one of the bungee cords to secure a piece of lumber on a trailer. After connecting one end of the cord to the trailer and while pulling the opposite end across the lumber, the hook attached to the trailer separated from the cord. The bungee cord then snapped toward Fowler, striking him in the left eye, resulting in injury.

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Plaintiffs' initiated a lawsuit alleging breach of express and implied warranties, negligence, gross negligence and loss of consortium. Defendants filed motions for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10). The trial court dismissed plaintiffs' claim of breach of implied warranty based on the absence of cause of action in accordance with MCL 600.2947(6). Addressing plaintiffs' claims that defendants had a duty to warn of unknown risks, the trial court found the applicable statutory provision, MCL 600.2948(3), to be "clear and unambiguous" in imposing on "[a] seller . . . a duty to warn its customers of any risks of harm from its merchandise that were known or should have been known by the manufacturer when the product left the producer's control." Although the trial court found that plaintiffs failed to present evidence that the manufacturer of the bungee cord had "actual knowledge" regarding the risk of harm, it referenced testimony from an engineer submitted as an expert indicating constructive knowledge by the manufacturer of the risk of harm pertaining to bungee cords based on the availability of an "abundance of information" within "the public domain." Consequently, the trial court ruled defendants "potentially had a duty to warn" premised on "the manufacturer's imputed knowledge of the risks," pursuant to MCL 600.1948. Citing MCL 600.2948(2), the trial court then addressed whether any duty to warn on the part of defendants' was alleviated because the risk was "obvious or is a matter of common knowledge." Using "an objective standard," the trial court determined that any duty to warn was inapplicable based on the open and obvious nature of the risk. Consequently, the trial court dismissed plaintiffs' claims for breach of implied warranty and duty to warn against Jack's and IIT. Subsequently, the trial court entered a separate order granting defendant WMH's motion for summary disposition, dismissing plaintiffs' claims against this defendant with prejudice and this appeal ultimately ensued. II. STANDARD OF REVIEW As noted in Woodman v Kera, LLC, 280 Mich App 125, 134-135; 760 NW2d 640 (2008), citing Healing Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 55-56; 744 NW2d 174 (2007): Summary disposition under either MCR 2.116(C)(8) or (C)(10) presents an issue of law for [the Court's] determination and, thus, [the Court] review[s] a trial court's ruling on a motion for summary disposition de novo. Where the parties rely on documentary evidence, appellate courts proceed under the standards of review applicable to a motion made under MCR 2.116(C)(10). A motion made under MCR 2.116(C)(10) tests the factual support for a claim and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When the burden of proof at trial would rest on the nonmoving party, the nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. A genuine issue of material fact exists when the record, drawing all reasonable inferences in favor of the nonmoving party, leaves open an issue upon which reasonable minds could differ. When deciding a motion for summary disposition under this rule, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence then filed in the action or submitted by the parties in the -2-

light most favorable to the nonmoving party. But such materials "shall only be considered to the extent that [they] would be admissible as evidence. . . ." [Quotation marks and citations omitted.] Matters involving statutory interpretation comprise questions of law, which this Court reviews in accordance with a de novo standard of review. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008). III. ANALYSIS A. MCL 600.2947 Subsequent to the trial court's ruling in this matter, this Court, in Curry v Meijer, Inc, 286 Mich App 586, 587-588; 780 NW2d 603 (2009)1, addressed the issue of whether MCL 600.2947(6)(a) "requires a plaintiff to establish a failure to exercise reasonable care to prevail on a breach of implied warranty claim against a nonmanufacturing defendant." Consequently, the outcome of this case is, in significant part, governed by this Court's determination in Curry that it is necessary for a plaintiff to demonstrate a "failure to exercise reasonable care" in order to sustain a claim for breach of an implied warranty. Id. at 588. Of primary significance is the statutory language comprising MCL 600.2947(6), which provides: In a product liability action, a seller other than a manufacturer is not liable for harm allegedly caused by the product unless either of the following is true: (a) The seller failed to exercise reasonable care, including breach of any implied warranty, with respect to the product and that failure was a proximate cause of the person's injuries. (b) The seller made an express warranty as to the product, the product failed to conform to the warranty, and the failure to conform to the warranty was a proximate cause of the person's harm. In evaluating the statutory language, this Court has determined: MCL 600.2947(6)(a) and (b) clearly and unambiguously predicate product liability on a non-manufacturing seller for harm allegedly caused by the product under only two scenarios: (a) where the seller fails to exercise reasonable care, or (b) where there is a breach of an express warranty. [Curry, 286 Mich App at 592.]

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The application for leave to appeal to the Michigan Supreme Court has been denied. Curry v Meijer, Inc, 486 Mich 961; 782 NW2d 773 (2010).

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Specifically addressing the language of subsection (a) of the statute, this Court noted, "While subsection (a) contains the clause, "including breach of any implied warranty," the grammatical context and placement of this clause indicate that the Legislature did not intend to create a third avenue of liability." After reviewing the dictionary definition of the term "include," this Court held: [A]s used in the aforementioned participial phrase, a breach of any implied warranty constitutes a "subordinate element" of the broader reasonable care standard. Put another way, a breach of implied warranty claim is a type of, and not separate from, a breach of reasonable care claim. [Id. at 593-594.] In support of this interpretation the Court indicated that "the last clause of subsection (a), which imposes a final condition to imposing liability, refers to a singular failure, i.e., "that failure," that must be a proximate cause of the person's injuries." Id. at 594. The Court also observed, "[t]he only failure in subsection (a) to which this language refers is the failure to exercise reasonable care." Hence, this Court concluded, "breach of implied warranty is not a separate theory upon which to bring a products liability claim against a nonmanufacturing seller." Id. at 594-595. The Court also found to be significant the placement of the breach of implied warranty clause within MCL 600.2947(6): Specifically, that clause appears in subsection (a), which deals with fault, as opposed to subsection (b), under which the breach of an express warranty (with causation) alone is sufficient to impose liability. This distinction is key because traditionally a breach of warranty claim sounds in "contract" whereas the use of reasonable care, an element of negligence, sounds in "tort." Thus, the placement of the breach of implied warranty provision as a modifier in the "tort" subsection of

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