GREENE v A P PRODUCTS, LTD
Docket Nos. 127718, 127734
Supreme Court of Michigan
Decided July 19, 2006
Rehearing denied 477 Mich 1201
475 Mich 502
Argued March 7, 2006 (Calendar No. 2).
In an opinion by Justice CORRIGAN, joined by Chief Justice TAYLOR and Justices YOUNG and MARKMAN, the Supreme Court held:
The Court of Appeals erred in holding that a duty existed to warn of the kind of injuries that were suffered and in allowing various warranty claims to proceed on the basis that the warnings on the product were inadequate. The judgment of the Court of Appeals must be reversed and the trial court‘s order granting summary disposition to the defendants must be reinstated.
1.
2. Because no warning was required, the claims of inadequate warning on the product label are without merit.
Justice WEAVER, concurring, agreed with the majority‘s result and analysis, except for part IV of its opinion, which responds to Justice CAVANAGH‘s dissent.
Reversed; trial court order of summary disposition for the defendants reinstated.
Justice CAVANAGH, dissenting, concurred with Justice KELLY that the plaintiff presented a genuine issue of material fact with regard to whether a reasonably prudent product user would have known that ingesting or inhaling the hair oil could prove fatal. The majority ignores the Legislature‘s use of the word “a” before the phrase “material risk” in the statute, and reaches the erroneous conclusion that the obviousness of one risk from ingesting or inhaling the hair oil, i.e., illness, obviates the need to warn of other risks, such as death, that are not obvious. These risks do not have the same level of materiality because reasonably prudent product users would most likely act differently when aware of each risk.
Justice KELLY, dissenting, stated that the plaintiff presented sufficient evidence to raise a question of material fact concerning whether the material risk of death from ingesting or aspirating Wonder 8 Hair Oil is open and obvious to a reasonably prudent product user. The question should be decided by the trier of fact, not the Supreme Court. Rather than allowing the jury to determine the adequacy of the general warning on the product, the majority makes the decision for itself. And it fails to consider the evidence in the light most favorable to the plaintiff, as it must. It concludes that there is no need for any warning whatsoever. The trial court‘s grant of summary disposition for the defendants should be reversed, and the case should be remanded to the trial court for further proceedings.
PRODUCTS LIABILITY - DUTY TO WARN.
A manufacturer‘s or seller‘s duty to warn of product risks under
McKeen & Associates, P.C. (by Brian J. McKeen and Ramona C. Howard) and Frederick M. Rosen for the plaintiff.
Plunkett & Cooney, P.C. (by Ernest R. Bazzana and Edward J. Higgins), for A.P. Products, Ltd., and Revlon Consumer Products Corporation.
Kaufman, Payton & Chapa (by Howard S. Weingarden and Frank A. Misuraca) for Super 7 Beauty Supply, Inc.
CORRIGAN, J. In this case we consider the scope of a manufacturer‘s or seller‘s duty to warn of product risks under
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 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 products-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. 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 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 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 products-liability action was governed by common-law principles. Tort reform legislation enacted in 1995,6 however, displaced the common
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
In determining what constitutes a material risk, we are mindful that the statutes governing statutory construction direct us to construe “all words and phrases . . . according to the common and approved usage of the language,” but construe “technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law” according to such peculiar and appropriate meaning.
Finally, regarding the meaning of the statute, we conclude that the Legislature has imposed no duty to warn beyond obvious material risks. The statute does not impose a duty to warn of a specific type of injury that could result from a risk. The Court of Appeals, however, mistakenly held that warnings must cover not only material risks, as described, but must also cover potential injuries that could result.
While the Court of Appeals properly applied an objective standard in determining the suitability of the warning, it stated that it could not conclude that “as a matter of law, the risk of death from the ingestion of Wonder 8 Hair Oil would be obvious to a reasonably prudent product user and be a matter of common knowledge, especially considering the lack of any relevant warning.” 264 Mich App at 401 (first emphasis added). The Court of Appeals thus required that the warning indicate specific injuries a product user could incur. Yet, as we have stated, the statute does not require that a warning address possible injuries that might occur.11
Here, tragically, plaintiff‘s 11-month-old son died after ingesting and inhaling Wonder 8 Hair Oil.12 Under the law, however, defendants owed no duty to warn of specific injuries or losses, no matter how severe, if it is or should have been obvious to a reasonably prudent product user that ingesting or inhaling Wonder 8 Hair Oil involved a material risk. We conclude that it is
The product, as plaintiff concedes, was not marketed as safe for human consumption or ingestion. Rather, the label clearly states that the product is intended for use as a hair and body oil. Although subjective awareness is not the standard, we find it noteworthy that plaintiff herself demonstrated an understanding that Wonder 8 Hair Oil posed a material risk if ingested. We believe it would also be obvious to a reasonably prudent user that ingestion and inhalation of the product poses a material risk. The ingredient label‘s inclusion of eight natural oils has no bearing on our conclusion. Many, if not all, oils are natural. It should be obvious to a reasonably prudent product user that many oils, although natural, pose a material risk if ingested or inhaled. For instance, the reasonably prudent product user would know that breathing oil would be harmful. A reasonably prudent product user would also know that ingesting such things as crude oil or linseed oil poses a material risk although such oils are natural and pose no immediate danger from contact with hair or skin. In fact, paraffin oil is listed as one of the ingredients in Wonder 8 Hair Oil. It should be obvious to a reasonably prudent product user that ingesting paraffin oil poses a material risk since paraffin is commonly associated with such things as wax.
Additionally, the product label on Wonder 8 Hair Oil does not state that it contains only natural oils. Indeed, it lists numerous other ingredients, many of which would be unfamiliar to the average product user, such as isopropryl myristate, fragrance, and azulene. Given such unfamiliar ingredients, a reasonably prudent product user would be, or should be, loath to ingest it.
The plaintiff also pleaded breach of implied warranty under
IV. RESPONSE TO JUSTICE CAVANAGH‘S DISSENT
The crux of Justice CAVANAGH‘s dissent is that we erroneously conclude that the obviousness of one risk means the obviousness of all risks. This contention, however, is a gross mischaracterization of our holding and can be found nowhere in our opinion. Rather, we hold that a defendant has no duty to warn of a material risk that is or should be obvious to a reasonably prudent product user. We further hold that the material risk associated with the ingestion and inhalation of hair oil is or should be obvious to a reasonably prudent product user. This conclusion is entirely consistent with the plain language of the statute and focuses on the obviousness of the material risk in question. It does not charge Michigan consumers with “knowledge of hidden dangers” as suggested by Justice CAVANAGH. Post at 524.
Justice CAVANAGH also contends that we fail to identify the material risk in question and mislabel the risk as “ingesting or inhaling” the hair oil. Contrary to his
The material risk in this case is neither the misuse of the product (the inhalation or ingestion) nor the consequence of the misuse (injury or death). Rather the material risk is the important or significant exposure to the chance of loss or injury stemming from certain behavior, in this case, the ingestion and inhalation of hair oil. In simple terms, the material risk is the chance that injury could result from drinking or inhaling hair oil. Because a reasonable person knows or should know that ingesting or inhaling hair oil would expose that person to the chance of injury or loss, a defendant has no duty to warn that ingesting or inhaling hair oil could result in exposure to injury or loss. Furthermore, the statute does not require that a person be aware of the worst injury or loss (death) that could possibly result from the misuse of the product. Rather, under the plain language of the statute, it need only be obvious to a reasonably prudent product user that a chance exists that he or she might suffer an injury or loss if they drink or inhale hair oil.
We respectfully remind our dissenting colleague that the Legislature, not this Court, refused to impose a duty to warn of obvious material risks. Justice CAVANAGH does not deny this, but evidently chooses to ignore it. By what authority can a court under our Constitution do that? Justice CAVANAGH gives none. The Legislature also refused to require that a defendant list every possible injury that could result from the misuse of a product. Again, Justice CAVANAGH does not deny this, but chooses to ignore it. How does a court obtain such authority? Justice Cavanagh fails to provide an answer, probably
V. CONCLUSION
We conclude that the Court of Appeals erroneously reversed the trial court‘s grant of summary disposition to defendants A.P. Products and Revlon. The material risk of harm associated with ingesting and inhaling Wonder 8 Hair Oil is obvious to a reasonably prudent product user. Defendants thus owed no duty to warn plaintiff of that harm.
TAYLOR, C.J., and YOUNG and MARKMAN, JJ., concurred with CORRIGAN, J.
WEAVER, J. (concurring). I concur in the majority‘s result and analysis, except for part IV, the majority‘s response to Justice CAVANAGH‘s dissent.
CAVANAGH, J. (dissenting). Michigan consumers beware: If you know or should know that there is any material risk from using or accidentally misusing the product you buy, then the manufacturer of that product now has no duty to warn you of any risk at all, even when the potential harm you knew of is not the harm you ultimately suffer. Stated differently, if you know or should know that if, for example, you accidentally drink or inhale a product, you may become ill, then you are charged with knowing that if you accidentally drink or inhale that product, you could die. And the manufac-
To cut right to the core of the majority‘s faulty reasoning, the majority completely misreads
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. [Id.]
The majority ignores key words and basic grammatical structure. Specifically, the Legislature used the word “a” in the phrase “a material risk,” thus directing its mandate toward that particular risk. “A” is an “[i]ndefinite article functioning as an adjective” and is “[u]sed before nouns and noun phrases that denote a single, but unspecified, person or thing[.]” The American Heritage Dictionary, New College Edition (1981). Notably, then, the word that “a” precedes is limited to “a single” noun. Thus, in this case, “a material risk” refers to “a single,” or one, material risk. As a result, the otherwise unspecified single material risk to which the statute refers must be identified before it can be determined whether that risk was common knowledge or obvious to a reasonably prudent product user.
But the majority ignores the word “a,” fails to correctly identify the material risk at issue, and writes the word “obvious” completely out of the statute. In doing so, the majority erroneously concludes that all
By concluding this way, the majority rewrites the statute and, consequently, fails to effectuate the protections the Legislature intended. Had the Legislature intended what the majority holds, it would have written the statute as follows: “A defendant is not liable for failure to warn of any material risk when a material risk should be obvious to a reasonably prudent product user . . . .” Or it would have stated, “A defendant need not warn about all material risks if one material risk should be obvious to a reasonably prudent product user . . . .” Plainly, it did not write the statute that way, and the majority errs by ignoring the unambiguous language.1
To determine in what instances a manufacturer will have no duty to place a warning on its product and what
exactly it must warn about, it must first be determined what the “material risk” is alleged to be.2 By the majority‘s own proffered definition, “material” means ” ‘important: to make a material difference; pertinent: a material question.’ ” Ante at 510, quoting Random House Webster‘s College Dictionary (1997). The first question, then, is “In what must the material difference be made?” According the word its common meaning in the context in which it is used, for the risk to be “material,” it must make an important or pertinent difference in the consumer‘s actions with respect to the product. For instance, the risk would be material if it would bear on whether the consumer purchases the product or how the user deals with the product after purchasing it. Thus, if, to require a warning, the risk must be an important one that makes a material difference in the user‘s actions, and it must be obvious as well, then the risk involved must be identified. Otherwise, there is no way to determine whether the risk is obvious and no way to determine whether it would make some “material difference.”
So it is clear from the statutory language that all risks are not equal, for one is likely to act differently depending on the risk involved. Simply stated, even
By alternatively failing to identify the material risk at issue in this case and mislabeling the risk as “ingesting or inhaling” the oil, the majority prevents the statute from operating as the Legislature intended and deprives Michigan consumers of their right to assess levels of risk when making purchasing decisions. The majority seems to try to hide its incomplete analysis by
The inconsistencies are self-evident. On one hand, the majority claims that the material risk is “ingesting or inhaling” the product. On the other, the majority asserts that ingesting or inhaling this product poses a material risk, which risk is unidentified. Neither conclusion squares with a plain reading of the statute.
Ingesting or inhaling a product is not the material risk in question. That would make no sense at all because a warning that the product could be accidentally ingested or inhaled does not reveal the specific risk involved with ingesting or inhaling and, thus, does not allow a person to assess the risk and act accordingly. So the risk that must be warned about is not ingestion or inhalation itself.5
Rather, ingesting or inhaling is a misuse of the product, and the risk posed by that misuse—the one that must be warned of if not obvious—is the consequence of that misuse, i.e., the consequence of ingestion or inhalation. As such, each risk must be identified, assessed for materiality (whether that risk would affect a reasonably prudent product user‘s actions), and assessed for obviousness. The majority fails at each of these tasks.
This leads to another of the majority opinion‘s shortcomings: its assumption that knowledge of one risk is knowledge of all. The majority‘s erroneous conclusion is inconsistent with the plain language of the statute, which speaks of “a” material risk. As two of the defendants aptly explained in their brief, “No one needs to be told what is already known,” citing Dist of
In this case, then, to absolve defendants from liability, it must be shown that a reasonably prudent product user would or should have known of the specific material risk the product posed or that that material risk was common knowledge. Even assuming that a reasonably prudent product user would or should have known that inhaling or ingesting Wonder 8 Hair Oil posed a risk of illness, plaintiff raised a genuine issue of material fact regarding whether the user would have known that inhaling or ingesting Wonder 8 Hair Oil posed the risk of death and whether the same was common knowledge. Thus, it cannot be concluded as a matter of law that the manufacturer had no need to attach any warnings to this product merely because a reasonable person might know that the product could make one sick. The risks of illness and death simply do not have the same level of materiality because reasonably prudent product users will most likely act differently in each instance.
The same can be said for a tube of toothpaste, to use an example provided by plaintiff. If reasonably prudent product users could be said to assume that eating the
In charging consumers with knowledge of hidden dangers, the majority completely writes the word “obvious” out of the statute. As such, warnings that spraying hairspray into one‘s eyes may cause blindness, that swallowing toothpaste may cause death, or that inhaling hair oil could prove fatal are not required. Under today‘s opinion, manufacturers need not alert consumers of hidden risks or allow consumers to assess those risks and make informed choices. Rather, knowledge of one material risk is knowledge of all.
An opposite conclusion does not necessarily mean that a manufacturer must warn of the specific medical consequences of misusing the product.8 For instance, in
this case, the label did not need to state that the product, if inhaled, could cause “multisystem organ failure secondary to chemical pneumonitis,” which is the medical consequence the product caused the child in this case. Rather, it is enough that a warning speak in general terms, as long as the particular material risk that is not obvious to the reasonably prudent product user is revealed. So in this case, the manufacturer could have simply warned, as multitudes of manufacturers do, that the product could be fatal if inhaled or ingested.9
A consumer has a legislatively given right to rely on product labeling in making purchasing decisions, and when a label does not warn of a material risk such as death, the consumer has a right to assume that the product does not pose that risk. By wording the statute
Thus, all hidden and unknown risks are now relegated to the realm of “common knowledge,” and consumers must play a guessing game with the biggest risk being that their guess turns out to be fatal. Despite being given one by the Legislature, consumers now have no right to know of hidden risks that would have changed their decision-making process regarding the products they choose to buy.
For these reasons, I concur with Justice KELLY that plaintiff presented a genuine issue of material fact with respect to whether a reasonably prudent product user would have known that ingesting or inhaling Wonder 8 Hair Oil could prove fatal. This Court gravely errs by rewriting the law of products liability clearly set forth by the Legislature and thereby depriving plaintiff of an opportunity to seek redress for the death of her child. As such, I respectfully dissent.
KELLY, J. (dissenting). I agree with the majority that
There is evidence that the plaintiff in this case was a reasonably prudent product user to whom the risk may not have been obvious. The Court of Appeals observed:
In her deposition, plaintiff testified that she always kept her nail care products, e.g., polish and acrylic, in a locked case because she knew that they could be harmful if swallowed. She stated that most of these products displayed a warning to that effect . . . .
In an affidavit, plaintiff confirmed that she kept her nail care products in a locked case because of her knowledge that such products could be toxic. Additionally, she averred that . . . she stored all products that she knew to be toxic, such as bleach and ammonia, in a locked cabinet. Plaintiff asserted that, generally, it was her habit to read product labels because she had two small children. [Greene v AP Products, 264 Mich App 391, 396; 691 NW2d 38 (2004).]
Manufacturers and sellers must disclose safety-related information when they know or should know that the buyer or user is unaware of that information. Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379, 386; 491 NW2d 208 (1992). The Wonder 8 Hair Oil container did not bear any warning that it should be kept out of the reach of children or that it was toxic and potentially fatal, let alone harmful. It provided no information about how to respond to accidental ingestion or aspiration.
Notes
[W]here the facts of record require the conclusion that the risk of serious harm from the asserted condition is open and obvious, and no disputed question exists regarding the danger of the product, the law does not impose a duty upon a manufacturer to warn of conceivable ramifications of injuries that might occur from the use or foreseeable misuse of the product. [Id. at 402.]If the Legislature had intended to require a defendant to warn of specific dangers, it would have explicitly mandated that alteration in