LAWRENCE J HOSTE V CHRYSLER CORP
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STATE OF MICHIGAN
COURT OF APPEALS
LAWRENCE J. HOSTE,
UNPUBLISHED
July 13, 2004
Plaintiff-Appellant,
v
CHRYSLER CORPORATION PLYMOUTH,
U.S. RECREATIONAL SKI ASSOCIATION, and
SHANTY CREEK MANAGEMENT,
No. 245804
Antrim Circuit Court
LC No. 93-006013-NO
Defendants,
and
RELIABLE RACING SUPPLY,
Defendant-Appellee.
Before: Fitzgerald, P.J., and Bandstra and Schuette, JJ.
PER CURIAM.
In this products liability case, plaintiff appeals as of right the trial court’s order granting
summary disposition in favor of Reliable Racing Supply (Reliable) under MCR 2.116(C)(10).
This case arises out of a skiing accident that left plaintiff a quadriplegic. We affirm.
At a ski race that was a part of the Plymouth All American Ski Series at Schuss
Mountain, the course was marked by a series of slalom gates that consisted of a flexible pole, a
bamboo pole, and a banner affixed between the two. Plaintiff was asked to “forerun” the course
the night before the race, and was injured when his head struck one of the gate banners, which
failed to give way. Defendant Reliable manufactured the flexible pole that was a part of the gate.
Plaintiff’s complaint alleged, in part, that Reliable breached its duty to warn of the dangers
associated with solidly fastening a banner to the two gate poles.
On appeal, plaintiff argues that the trial court erred when it found that Reliable did not
have a duty to warn of this danger due to the lack of evidence establishing that Reliable had
actual or constructive knowledge of the danger. We review a trial court’s grant of summary
disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998). A motion brought under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). All of the affidavits,
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pleadings, depositions, admissions, and other evidence submitted by the parties are viewed in the
light most favorable to the nonmoving party. Id. If the proffered evidence fails to establish a
genuine issue of material fact, the moving party is entitled to judgment as a matter of law. Id.
To support a finding for negligent design, a theory based on a failure to warn “renders the
product defective even if the design chosen does not render the product defective.” Gregory v
Cincinnati Inc, 450 Mich 1, 11; 538 NW2d 325 (1995). The standard of care “includes the duty
to warn about dangers regarding the intended uses of the product, as well as foreseeable
misuses.” Id. A duty to warn is imposed on a manufacturer if: (1) the manufacturer had “actual
or constructive knowledge of the claimed danger,” (2) the manufacturer had “‘no reason to
believe that those for whose use the chattel is supplied will realize its dangerous condition,’” and
(3) the manufacturer “fail[ed] to exercise reasonable care to inform [users] of [the product’s] . . .
dangerous condition or of the facts which make it likely to be dangerous.” Glittenberg v
Doughboy Recreational Industries (On Rehearing), 441 Mich 379, 389-390; 491 NW2d 208
(1992), quoting 2 Restatement Torts, 2d, § 308, p 301.
To establish that defendant had actual or constructive knowledge of the danger, plaintiff
relied on the following rule of the Federation Internationale de Ski (FIS):
In giant slalom and Super-G two pairs of slalom poles are used, each pair carrying
a banner between them. Of these four slalom poles, the one which is the turning
pole must be a flex-pole. The banners should not be fastened solidly to the slalom
poles. Fixations which could cause injury are forbidden.
We conclude that this rule indicates that the solid affixation of a banner between gate
poles negatively impacts the gate’s safety. Considerable dispute arose below concerning the
relationship between the third and fourth sentences of the rule. While we agree with the trial
court that the link between solid fastening of a banner and potential injury is not precisely set
forth in the rule, such a connection is clearly implied. Indeed, the only “fixation” referenced in
the rule is the solid fastening of gate banners. In essence, fixations causing injury is the category
within which the subcategory “fastened solidly” resides. In turn, it is reasonable to conclude that
this subcategory would include all manners of affixing the banner that prevent it from tearing or
breaking away from the poles.
Nevertheless, while product “[m]anufacturers have a duty to warn purchasers or users of
dangers associated with the intended use or reasonably foreseeable misuse of their products, . . .
the scope of the duty is not unlimited.” Glittenberg, supra at 387-388. One of the limits on this
duty is the sophisticated-user doctrine. The sophisticated-user doctrine presumes that “where a
purchaser is a ‘sophisticated user’ of a manufacturer’s product, the purchaser is in the best
position to warn the ultimate user of the dangers associated with the product, thereby relieving
the sellers and manufacturers from the duty to warn the ultimate user.” Portelli v I R Constr
Products Co, Inc, 218 Mich App 591, 599; 554 NW2d 591 (1996).
The rationale behind the sophisticated-user doctrine is that the manufacturer
markets a particular product to a class of professionals that are presumed to be
experienced in using and handling the product. Because of this special
knowledge, the sophisticated user will be relied upon by the manufacturer to
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disseminate information to the ultimate users regarding the dangers associated
with the product. [Id. at 601.]
Shanty Creek, which purchased Reliable’s pole and was responsible for setting up the
course, could be presumed by Reliable to be experienced in using and handling its product.
Further, Shanty Creek acknowledged that it was familiar with the FIS rules including the rule
applicable here.1 Accordingly, it is Shanty Creek that was in the best position to warn the
ultimate user of the dangers associated with solidly affixing a banner between the two poles of
the slalom gate, or to avoid those dangers by affixing the banner properly.2 See Antcliff v State
Employees Credit Union, 414 Mich 624, 639; 327 NW2d 814 (1982) (concluding that the two
plaintiffs who were injured when the scaffolding on which they worked collapsed were charged
“with full appreciation of the danger of inadequately supporting the scaffold” given “their
knowledge and experience as riggers”).
We affirm.
/s/ Richard A. Bandstra
/s/ Bill Schuette
1
We do not find dispositive the fact that the FIS rule in issue was not directly applicable to the
Schuss Mountain event. Regardless of whether the terrain was large enough and steep enough to
set up a giant slalom or Super-G race, the warning regarding the construction of the gates was
still applicable. The danger associated with this construction would be present whenever such a
gate was constructed for use in a downhill skiing event.
2
Whether the ultimate user is identified as the actor setting up the course or plaintiff, the
strictures of the sophisticated user doctrine still mediate in Reliable’s favor.
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