HARRY BLACKWARD V SIMPLEX PRODUCTS DIV
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STATE OF MICHIGAN
COURT OF APPEALS
HARRY BLACKWARD and D’ANNE
KLEINSMITH,
UNPUBLISHED
October 19, 2001
Plaintiffs-Appellants/CrossAppellees,
v
No. 221066
Oakland Circuit Court
LC No. 97-551584-NP
SIMPLEX PRODUCTS DIVISION and K2, INC.,
Defendants-Appellees/CrossAppellants.
Before: K. F. Kelly, P.J., and O’Connell and Cooper, JJ.
O’CONNELL, J. (concurring in part and dissenting in part).
I concur only with the majority’s conclusion that MCL 600.2945(h) allows plaintiffs to
sue in tort for damage to property.1 However, I do not believe that this Court should address
defendants’ issue on cross-appeal because it was not decided by the trial court. Although this
Court may address unpreserved questions of law where the record is factually sufficient, I would
decline to do so in the present case. Whether plaintiffs’ claim against defendants is barred by the
release is a significant legal question that we should not address before it is subject to plenary
consideration by the trial court. See, generally, Smit v State Farm Mutual Automobile Ins Co,
207 Mich App 674, 685; 525 NW2d 528 (1994).
/s/ Peter D. O’Connell
1
The plain language of the statutory provision also appears to allow recovery in tort for wholly
economic loss in both the consumer and commercial context.
-1-
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