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STATE OF MICHIGAN COURT OF APPEALS

LYNN I. WALTON and PAULA WALTON, Plaintiffs-Appellants-CrossAppellees, v LARRY MILLER, MIDWAY ARMS, INC., d/b/a MIDWAY USA, Defendants-Appellees-CrossAppellants, and PACIFIC TOOL & GAUGE, INC., Defendant.

UNPUBLISHED October 4, 2011

No. 293526 Lapeer Circuit Court LC No. 07-039070-NP

Before: MURPHY, C.J., and FITZGERALD and TALBOT, JJ. PER CURIAM. This case is a products liability and negligence action, and plaintiffs Lynn and Paula Walton appeal as of right the trial court's order dismissing their lawsuit against defendants Larry Miller (hereafter "Miller") and Midway Arms, Inc. (hereafter "Midway"). The trial court dismissed the action on the basis of spoliation of evidence. Plaintiffs challenge that ruling on appeal, and Miller and Midway have both filed cross-appeals, contending that the trial court erred in failing to grant summary disposition in their favor on the basis of arguments other than spoliation. We find it unnecessary to address the spoliation issue, given that plaintiffs' suit fails as a matter of law with respect to Midway because of misuse, the absence of a legal duty, and the failure of legal or proximate cause, and, with respect to Miller, the suit fails because of a lack of evidence showing that he knew or should have known about the potential hazard at issue. Accordingly, we affirm. On January 9, 2005, plaintiff Lynn Walton (hereafter "Walton") was test-firing Miller's Remington 700 rifle in preparation for hunting when it exploded, ejecting metal fragments that peppered Walton's face and penetrated his right eye, which permanently blinded him in that eye. Miller stored his firearms on plaintiffs' property and allowed Walton to use the weapons, -1-

including the rifle at issue. Walton and Miller were gun enthusiasts. Miller, a tool and die maker but not a gunsmith, had modified the rifle by replacing the original factory-installed extractor with a Sako-style extractor allegedly sold by Midway. Defendant Pacific Tool & Gauge, Inc., allegedly manufactured the Sako-style extractor. Midway's catalog warned purchasers that installation of the extractor in the Remington 700 "should be performed by a qualified gunsmith," as the extractor was not a "drop-in part." Miller, however, installed the extractor himself. In order to install the extractor, it was necessary for Miller to cut a slot in the perimeter of the rifle's bolt face so that it could accommodate the extractor. Plaintiffs alleged that the slot removed lateral support in the area, which had been a full 360 degrees with the original extractor and uncut bolt, and when the round was fired by Walton, pressure went backwards into the slot, causing part of the extractor to disintegrate and debris to fly into Walton's eye. As a broad overview, plaintiffs placed the blame for Walton's injuries on the Sako-style extractor, given the fact that installation of the extractor required modification of the bolt. Defendants' position, on the other hand, was that the explosion was caused by Walton's unforeseeable practice of reloading cartridges in a manner that created unreasonably highpressured ammunition. Among other various defenses, Midway argued that installation of the extractor could only have been accomplished by modifying the extractor itself. Count I of plaintiffs' complaint alleged negligence on Miller's part for installing the extractor when "he knew or should have known that cutting the bolt would cause the bolt to be unable to withstand the high pressure created by the cartridges that . . . Walton used." Count II alleged that Midway was negligent in selling the extractor when it knew or should have known that the extractor "would compromise the Remington factory installed bolt face and cause the rifle to fail during reasonable and foreseeable use[.]" This particular count asserted that Midway breached its duty to warn of the dangers associated with installing the extractor. Count III alleged that Midway was negligent for failing to properly test the extractor for use in the Remington rifle and failing to disseminate results that would have been obtained had the testing been performed. Count IV alleged breach of implied warranty against Midway. Plaintiffs maintained that Midway breached the implied warranty of fitness where the extractor "was not reasonably fit for the uses or purposes anticipated or reasonably foreseen by . . . Midway when it left [Midway's] control." Count V alleged breach of express warranty against Midway. Plaintiffs asserted that Midway warranted and represented in its "catalog, by innuendo, that the [e]xtractor was reasonably fit for the purposes intended or reasonably foreseen" and that Midway breached said express warranty. After motions for summary disposition were filed by Miller and Midway and denied by the trial court, the court granted summary disposition in favor of both Midway and Miller on reconsideration, finding that they were entitled to the sanction of dismissal on the basis of spoliation of evidence. The trial court concluded that Walton failed to preserve and intentionally destroyed the extractor after the incident occurred, thereby depriving Miller and Midway of various substantial defenses. With respect to spoliation of evidence, plaintiffs argue that the trial court erred in reaching the factual conclusion that they had intentionally destroyed the extractor, that the trial court erred because the court failed to consider that Miller had an opportunity to take the rifle shortly after the accident and to take bullet and powder samples, and that the trial court erred in imposing too harsh a sanction under the circumstances. We find it unnecessary to address these arguments, considering that, even if the trial court erred in dismissing the action as a sanction for -2-

destroying evidence, Miller and Midway are entitled to summary disposition on the basis of arguments presented in the cross-appeals. We review de novo a trial court's ruling on a motion for summary disposition. Greene v A P Products, Ltd, 475 Mich 502, 507; 717 NW2d 855 (2006). Questions of law are likewise reviewed de novo on appeal. Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; __ NW2d __ (2011). Under MCR 2.116(C)(10), the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties are viewed in a light most favorable to the nonmoving party. Greene, 475 Mich at 507. Summary disposition is properly granted under MCR 2.116(C)(10) when there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. As part of a prima facie case in a products liability action, a plaintiff must show that the defendant's conduct was the proximate cause of the plaintiff's injuries. Skinner v Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994). Proving proximate cause actually entails establishing two elements: (1) cause in fact; and (2) legal cause, which is also referred to as proximate cause. Id. at 162-163. With respect to legal cause (hereafter "proximate cause"), the focus is on the foreseeability of consequences. Id. at 163. A proximate cause is a foreseeable, natural, and probable cause of a plaintiff's injury and damages. Kaiser v Allen, 480 Mich 31, 3738; 746 NW2d 92 (2008). The question of proximate cause is intertwined with and related to the issue of legal duty "because the question whether there is the requisite relationship, giving rise to a duty, and the question whether the cause is so significant and important to be regarded a proximate cause both depend in part on foreseeability

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