GERALD T HEATON V PRISTINE HOME BUILDERSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
GERALD T. HEATON and JONNA HEATON,
BENTON CONSTRUCTION COMPANY, d/b/a
GREAT LAKES SUPERIOR WALLS,
October 27, 2009
December 22, 2009
Shiawassee Circuit Court
LC No. 06-003972-CK
Advance Sheets Version
PRISTINE HOME BUILDERS, DANIEL J.
BONAWITT, GRAIG’S HOME DESIGN
SERVICES, L.L.C., and CRAIG W. THORTON,
Before: MURRAY, P.J., and MARKEY and BORRELLO, JJ.
MURRAY, P.J. (concurring in part and dissenting in part).
I concur in the majority’s opinion that this is a products liability case, but respectfully
disagree with its conclusion that Daniel J. Bonawitt was not a sophisticated user. In my view,
Bonawitt was a sophisticated user, and, as a result, the trial court should have granted defendant
Great Lakes Superior Walls’ motion for summary disposition, and dismissed plaintiffs’ claim to
the extent that it was premised on a failure to warn.
Although the parties argue over whether plaintiffs’ claim was actually one in negligence
or products liability, it was both. In other words, plaintiffs’ claim was one of products liability
that was based on a negligence theory. See Prentis v Yale Mfg Co, 421 Mich 670, 682; 365
NW2d 176 (1984); Lemire v Garrard Drugs, 95 Mich App 520, 523; 291 NW2d 103 (1980);
Bullock v Gulf & Western Mfg, 128 Mich App 316, 319; 340 NW2d 294 (1983). Such a theory,
as the majority recognizes, also falls squarely within the plain language of the statute. MCL
600.2946. And, although there are several statutory defenses and standards that are applicable to
one or more products liability theories, defendant relies exclusively on the “sophisticated user”
defense to a failure to warn theory contained in MCL 600.2945(j) and MCL 600.2947(4).1
The statutory definition of “sophisticated user” is:
“Sophisticated user” means a person or entity that, by virtue of training,
experience, a profession, or legal obligations, is or is generally expected to be
knowledgeable about a product's properties, including a potential hazard or
adverse effect. An employee who does not have actual knowledge of the product's
potential hazard or adverse effect that caused the injury is not a sophisticated user.
I would hold that there was no genuine issue of material fact that Bonawitt was a sophisticated
user. It is undisputed that Bonawitt had been a professional homebuilder for the past 12 years,
and that this was his exclusive line of business. The evidence is also undisputed that Bonawitt
had built approximately 19 homes during his 12 years of business, and it is clear that when he
contracted with plaintiffs to build their home, he held himself out as a professional homebuilder.
Consequently, because of his training, experience, and profession, Bonawitt was a sophisticated
user. At a minimum, given his profession and experience, he would generally be expected to be
familiar with retaining walls that he purchased for use in building a home.
In light of this conclusion, I would reverse the trial court’s order in part, and remand for
dismissal of plaintiffs’ failure to warn theory. Such a dismissal would not necessitate dismissal
of the entire judgment, because plaintiffs also posited a failure to instruct theory, which is
different from a failure to warn. See MCL 600.2945(i) (defining “production” as both
“instructing” and “warning”) and Talcott v Midland, 150 Mich App 143, 148; 387 NW2d 845
(1985). In all other respects, I concur in the majority opinion.
/s/ Christopher M. Murray
I am assuming, because it is not addressed by the parties, that the “sophisticated user” defense
applies to plaintiffs’ cause of action even though the transaction was between defendant and
Bonawitt, and this discussion is over whether Bonawitt, rather than plaintiffs, was a