ROBERT ALAN CURRY V MEIJER INC
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT ALAN CURRY and CARRIE ANN
CURRY,
FOR PUBLICATION
December 29, 2009
9:10 a.m.
Plaintiffs-Appellants,
v
No. 288187
Calhoun Circuit Court
LC No. 2004-001207-NP
MEIJER, INC.,
Defendant/Cross-Plaintiff-Appellee,
Advance Sheets Version
and
FABER BROTHERS, INC., and STREAM and
LAKE TACKLE, INC.,
Defendants/Cross-DefendantsAppellees,
and
LOGGY BAYOU ENTERPRISES OF
ARKANSAS AND STREAM and LAKE
WHOLESALE, INC.,
Defendants/Cross-Defendants,
and
DEER DARLIN’ ENTERPRISES LTD.,
Defendant.
Before: MARKEY, P.J., and BANDSTRA and MURRAY, JJ.
MURRAY, J.
Plaintiffs appeal as of right the trial court’s order granting defendants’ motions for
summary disposition pursuant to MCR 2.116(C)(10). At issue is whether the trial court erred by
ruling that MCL 600.2947(6)(a) of the Revised Judicature Act requires a plaintiff to establish a
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failure to exercise reasonable care to prevail on a breach of implied warranty claim against a
nonmanufacturing defendant. We hold that such a showing is necessary and, because plaintiffs
failed to meet this burden, summary disposition of plaintiffs’ complaint was appropriate.
Accordingly, we affirm.
I. BACKGROUND
On November 25, 2001, plaintiff Robert Curry was injured when he fell approximately
20 feet from a tree stand while hunting in Calhoun County. Curry had purchased the tree stand
from defendant Meijer, Inc., some time between 1993 and 1995. The tree stand, manufactured
by Loc-On Corporation, was supplied exclusively to Meijer by defendant Stream and Lake
Tackle, Inc. (SLT), in 1993, and exclusively by defendant Faber Brothers, Inc., in 1994 and
1995.
Curry and his wife subsequently initiated suit against the seller and distributors of the tree
stand alleging negligent design and manufacture, failure to warn, sale of a defectively designed
and manufactured tree stand, breach of express and implied warranties, and loss of consortium.1
Defendants answered in turn, and Meijer filed a cross-claim seeking indemnification from Faber
Brothers and SLT.
Following the close of discovery, Meijer, SLT, and Faber Brothers filed motions for
summary disposition. Meijer argued that it made no express warranty and that it could not be
liable for breach of implied warranty where plaintiffs could not show that Meijer did not exercise
reasonable care under MCL 600.2947(6)(a), Curry purchased the tree stand without relying on
Meijer’s skill and judgment, and the tree stand owner’s manual disclaimed all warranties except
a three-year limited warranty. SLT’s motion was identical in substance to Meijer’s, with the
additional arguments that besides plaintiffs’ failure to show that SLT distributed the tree stand,
plaintiffs’ theory of causation was based on speculation and conjecture. Faber Brothers
contested its liability on the grounds that Robert Curry was aware of the aforementioned threeyear limited warranty and the accompanying warranty disclaimer, Curry misused the tree stand
by failing to wear a safety belt, plaintiffs could not prove Faber Brothers distributed the tree
stand, and plaintiffs could not overcome the statutory presumption of nonliability where the tree
stand was in compliance with industry standards.
Plaintiffs responded that because a breach of implied warranty claim against a seller or
distributor does not require a showing of negligence and because a seller or distributor need not
know the particular purpose for which a good was purchased, expert testimony that the tree stand
1
Plaintiffs’ first complaint named Loggy Bayou Enterprises of Arkansas and Meijer as
defendants. Plaintiffs later filed two amended complaints, identical in substance to the original,
adding the remaining defendants to this action. The manufacturer, Loc-On, is defunct and is not
a party to this action. After initial discovery, Loggy Bayou was dismissed because it did not
manufacture the tree stand in question, but only purchased naming rights. Defendant Stream and
Lake Wholesale, Inc., was also dismissed because it was unauthorized to conduct business in the
state of Michigan.
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was defectively designed and not fit for its intended purpose was sufficient to withstand
defendants’ motion for summary disposition. Additionally, plaintiffs contended that an implied
warranty of merchantability could not be disclaimed, the nonliability aspect of the products
liability statute applied only to the negligence (or reasonable care) portion of the statute, Robert
Curry did not misuse the tree stand or if he did such misuse was foreseeable, and Curry’s claims
that he purchased the tree stand from Meijer and that Faber Brothers and SLT were the only
potential distributors of the tree stand were sufficient to survive a causation challenge.
Agreeing with defendants’ arguments, the trial court found that under MCL
600.2947(6)(a), “for the Plaintiffs to prevail on a breach of implied warranty claim against a nonmanufacturing Defendant, they must show that the Defendant failed to exercise reasonable
care—that the Defendant knew or had reason to know of the alleged defect.” Thus, the court
granted summary disposition because plaintiffs could neither satisfy this burden nor show that
defendants had provided plaintiffs with any express warranties. In light of this order, Meijer
stipulated to dismissal of its cross-claims, and on September 17, 2008, the trial court entered the
final order from which plaintiffs now appeal.
II. ANALYSIS
Before this Court, plaintiffs challenge the trial court’s ruling only insofar as it held that
MCL 600.2947(6) requires a showing of negligence to sustain a breach of implied warranty
claim. We review de novo matters of statutory interpretation as well as the grant or denial of a
motion for summary disposition. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 424; 751
NW2d 8 (2008). A motion for summary disposition pursuant to MCR 2.116(C)(10) should be
granted when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). A
genuine issue of material fact exists when reasonable minds could differ after drawing
reasonable inferences from the record. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d
468 (2003). In reviewing this issue, the Court must consider the pleadings, affidavits,
depositions, admissions, and other documentary evidence and construe them in the light most
favorable to the nonmoving party. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d
342 (2004). Where the burden of proof rests with the nonmoving party, that party must respond
with documentary evidence to demonstrate the existence of a genuine issue of material fact for
trial. Maiden, 461 Mich 120-121. The failure of the nonmoving party to so respond results in
the entry of judgment for the moving party. Id.
Before 1996, it was settled in Michigan that a plaintiff was not required to establish
negligence to recover under a breach of implied warranty theory. Piercefield v Remington Arms
Co, Inc, 375 Mich 85, 96; 133 NW2d 129 (1965). Rather, at common law, a plaintiff need only
show that a product was sold in a defective condition and the defect caused the plaintiff’s injury.
Id. at 96-97. However, tort reform legislation effective in 1996 displaced application of the
common law in certain products liability actions. Greene v A P Products, Ltd, 475 Mich 502,
507-508; 717 NW2d 855 (2006). Thus, MCL 600.2947(6), contained within the Revised
Judicature Act, now governs the liability of a nonmanufacturing seller in breach of implied
warranty cases. That section provides:
In a product liability action, a seller other than a manufacturer is not liable
for harm allegedly caused by the product unless either of the following is true:
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(a) The seller failed to exercise reasonable care, including breach of any
implied warranty, with respect to the product and that failure was a proximate
cause of the person’s injuries.
(b) The seller made an express warranty as to the product, the product
failed to conform to the warranty, and the failure to conform to the warranty was a
proximate cause of the person’s harm. [MCL 600.2947(6).]
At issue, then, is whether the tort reform legislation now requires a showing of fault, i.e.,
that a seller failed to exercise reasonable care, to maintain an action for breach of implied
warranty (as defendants argue) or whether the tort reform legislation left the traditional test for
breach of implied warranty intact (as plaintiffs argue). Because plaintiffs failed to present any
evidence of negligence on the part of defendants as required to withstand defendants’ summary
disposition motions,2 Maiden, 461 Mich 120-121, plaintiffs’ claim is wholly dependent on
resolution of this issue.
We begin our analysis by reviewing the plain language of the statute to determine the
Legislature’s intent. DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300
(2000). Where the language is clear and unambiguous, “further construction is neither required
nor permitted.” Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d
1 (2005).
MCL 600.2947(6)(a) and (b) clearly and unambiguously predicate product liability on a
nonmanufacturing seller for harm allegedly caused by the product under only two scenarios: (a)
where the seller fails to exercise reasonable care, or (b) where there is a breach of an express
warranty. The language is about as clear and unambiguous as it could be. However, plaintiffs
argue that there are two liability standards within subsection (a), i.e., failure to exercise
reasonable care and breach of implied warranty. While subsection (a) contains the clause,
“including breach of any implied warranty,” the grammatical context and placement of this
clause indicate that the Legislature did not intend to create a third avenue of liability. See Bush v
Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009) (“statutory language must be read and
understood in its grammatical context, unless it is clear that something different was intended”)
(citations and quotation marks omitted), and Sun Valley Foods Co v Ward, 460 Mich 230, 237;
596 NW2d 119 (1999) (interpretation of critical statutory language involves consideration of
both the placement and purpose of the critical phrase in the statutory scheme as well as its
grammatical context); see also Niles Twp v Berrien Co Bd of Comm'rs, 261 Mich App 308, 315;
683 NW2d 148 (2004) (“the Legislature is presumed to know the rules of grammar”).
Important regarding grammatical context is that the Legislature chose to use the term,
“including,” in the phrase discussing the breach of an implied warranty. The Random House
College Dictionary (rev ed, 1988) defines the verb, “include,” in relevant part as “to contain as a
subordinate element; involve as a factor” and “to take in or consider as a part or member of.”
This definition is crucial because, in context, the phrase “including breach of any implied
2
Plaintiffs only presented evidence that the tree stand may have been defective.
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warranty,” is a present participial phrase derived from the verb, “include,” and is used as an
adjective to modify “care.”3 Consequently, as used in the aforementioned participial phrase, a
breach of any implied warranty constitutes a “subordinate element” of the broader reasonable
care standard. Put another way, a breach of implied warranty claim is a type of, and not separate
from, a breach of reasonable care claim.
Further buttressing this conclusion is that the last clause of subsection (a), which imposes
a final condition to imposing liability, refers to a singular failure, i.e., “that failure,” that must be
a proximate cause of the person’s injuries. MCL 600.2947(6)(a). The only failure in subsection
(a) to which this language refers is the failure to exercise reasonable care. Plaintiffs’ argument
would be more attractive if the Legislature had used the disjunctive, “or,” in place of the
participle, “including,” so that the statute would have read “and that failure or breach of any
implied warranty was a proximate cause of the person’s injuries.” Yankee Springs Twp v Fox,
264 Mich App 604, 608; 692 NW2d 728 (2004) (“The disjunctive term ‘or’ refers to a choice or
alternative between two or more things.”). Under that scenario, then, the language would impute
liability if: “the seller failed to exercise reasonable care, or breached any implied warranty.”
The plain language, however, makes no such allowance. Thus, breach of implied warranty is not
a separate theory upon which to bring a products liability claim against a nonmanufacturing
seller.
Of additional significance is the location of the breach of implied warranty clause within
§ 2947(6). Bush, 484 Mich 167. Specifically, that clause appears in subsection (a), which deals
with fault, as opposed to subsection (b), under which the breach of an express warranty (with
3
In In re Forfeiture of $5,264, 432 Mich 242, 254 n 9; 439 NW2d 246 (1989), our Supreme
Court interpreted the meaning of a similar statutory clause that also employed the term,
“including.” In finding that the phrase modified the relevant antecedent noun, the Court
explained:
“A participle is a verbal adjective, a word having the function of both
verb and adjective. As a verb form, it can take an object and be affected in
meaning by an adverb. As an adjective, it can modify a noun or pronoun and
can itself be modified by an adverb. [Shaw, Errors in English and Ways to
Correct Them (New York: Harper & Row, 3d ed, 1986), p 227].”
A participle may be in the present (singing, asking), past (sung, asked) or
perfect (having sung or having been sung, having asked or having been asked)
tense. Id. A participial phrase takes its name from the initial word in the phrase.
Id., p 229.
From these basic rules of grammar, we infer that the proviso “including
but not limited to” is a present participial phrase derived from the verb “include.”
The phrase as used in the first sentence of [MCL 333.7521(1)(f)] is an adjective
modifying the noun “thing.” [Emphasis in original.]
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causation) alone is sufficient to impose liability. This distinction is key because traditionally a
breach of warranty claim sounds in “contract” whereas the use of reasonable care, an element of
negligence, sounds in “tort.” Hill v Harbor Steel & Supply Corp, 374 Mich 194, 203; 132 NW2d
54 (1965). Thus, the placement of the breach of implied warranty provision as a modifier in the
“tort” subsection of § 2947(6) further indicates the Legislature’s intent to add an element of fault
to a traditional breach of implied warranty claim.4
Contrary to plaintiffs’ argument, our holding that § 2947(6)(a) requires a showing of fault
to impose liability does not render the clause, “including breach of any implied warranty,” mere
surplusage or nugatory. See Sun Valley Foods, 460 Mich 237. Rather, it is plaintiffs’
interpretation that would inject uncertainty into this section. Indeed, were subsection (a) to
permit two types of claims as plaintiffs contend, then the implied warranty “exception” would
swallow the rule. In other words, any time a plaintiff alleged injury resulting from a product
defect, he would need only establish a breach of implied warranty; the reasonable care standard
would seldom, if ever, come into play. This would in effect render the entire subsection
surplusage or nugatory because the common-law breach of implied warranty standard would
become the de facto standard in most if not all product defect cases. Such an interpretation runs
afoul of the clear intent of the Legislature.
Plaintiffs cite two opinions from this Court decided after tort reform legislation was
enacted in support of their position that “‘the theories of negligence and implied warranty remain
separate causes of action with different elements.’” Kenkel v Stanley Works, 256 Mich App 548,
556; 665 NW2d 490 (2003), quoting Bouverette v Westinghouse Electric Corp, 245 Mich App
391, 395; 628 NW2d 86 (2001). The defendants in both those cases, however, were
manufacturers, rather than nonmanufacturing sellers as is the case here. Kenkel, 256 Mich App
551; Bouverette, 245 Mich App 393. As such, neither Kenkel nor Bouverette applied—much
4
This conclusion is also consistent with the broader statutory scheme of tort reform, Bush, 484
Mich 167, which this Court has previously described as “a series of bills that overhauled the tort
system in Michigan[,]” Wysocki v Felt, 248 Mich App 346, 359; 639 NW2d 572 (2001).
Similarly, although review of legislative history is not to be considered when interpreting an
unambiguous statute, In re Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003),
we note that our conclusion is consistent with the Senate Fiscal Agency Bill Analysis of SB 344,
January 11, 1996, p 11, which provides:
[MCL 600.2947(6)(a)] establishes a fault-based standard of liability for
nonmanufacturing product sellers, by providing that a seller is not liable unless it
failed to exercise reasonable care or a product failed to conform to an express
warranty, and the failure was a proximate cause of the harm. By holding sellers
responsible only for their own wrongdoing, the bill will eliminate unnecessary
and burdensome legal costs and insurance premiums. Since manufacturers
ultimately indemnify sellers for the harm caused by the manufacturers’ own
products, claims should be brought directly against them. In addition, placing
liability on the party that is in the best position to prevent harm will encourage
product safety.
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less even mentioned—§ 2947(6), which is undisputedly dispositive in this case. Reliance on
those cases is not instructive.5
As we noted in footnote five, the United States Court of Appeals for the Sixth Circuit
addressed this precise issue last year. In Croskey v BMW of North America, Inc, 532 F3d 511,
520-521 (CA 6, 2008), the court held that the straightforward language of § 2947(6)(a)
compelled the conclusion that a nonmanufacturing seller can only be liable for failing to exercise
reasonable care or for breach of an express warranty:
The plain language of the statute indicates that the legislature did not
intend failure to exercise reasonable care and breach of implied warranty to be
separate products liability claims. Section 600.2947(6)(a) states that a nonmanufacturing seller is not liable unless “[t]he seller failed to exercise reasonable
care, including breach of any implied warranty, with respect to the product and
that failure was a proximate cause of the person's injuries.” Had the legislature
intended this section to allow for two separate claims, it would have used the
conjunction “or”: “the seller failed to exercise reasonable care, or breached any
implied warranty.” The legislature's use of “including” indicates, as the district
court ruled in this case, that breach of implied warranty claims are to be
considered a type of reasonable care claim, not a separate claim. See Coleman v.
Maxwell Shoe Co., 475 F Supp. 2d 685 (E.D. Mich. 2007). This conclusion is
further supported by the last clause of § 600.2947(6)(a): “and that failure [to
exercise reasonable care] was a proximate cause of the person’s injuries.” The
legislature did not use the language “and that failure or breach of implied
warranty was a proximate cause of the person’s injuries.” Clearly, the only claim
5
While plaintiffs point out that unpublished caselaw of this Court, see Adams v Meijer, Inc,
unpublished opinion per curiam of the Court of Appeals, issued December 18, 2001 (Docket No.
224213), and Hastings Mut Ins v Gen Motors Corp, unpublished opinion per curiam of the Court
of Appeals, issued March 29, 2005 (Docket No. 252427), as well as several federal district court
decisions from the Eastern District of Michigan have reached conflicting conclusions regarding
whether MCL 600.2947(6)(a) allows for the imposition of liability without a showing of fault,
neither unpublished decisions from this Court nor federal caselaw is binding precedent. Sharp v
City of Lansing, 464 Mich 792, 803; 629 NW2d 873 (2001); Kisiel v Holz, 272 Mich App 168,
172 n 2; 725 NW2d 67 (2006); MCR 7.215(C)(1). Regardless, we note that the United States
Court of Appeals for the Sixth Circuit recently resolved this conflict in the federal district court
consistent with our holding in this case. See Croskey v BMW of North America, Inc, 532 F3d
511, 519-521 (CA 6, 2008). The Sixth Circuit’s rationale, as well as that articulated by Judge
Lawrence Zatkoff in Coleman v Maxwell Shoe Co, Inc, 475 F Supp 2d 685, 687-691 (ED Mich,
2007), and Judge Gerald Rosen in Mills v Curioni, Inc, 238 F Supp 2d 876, 885-888 (ED Mich,
2002), are well reasoned and consistent with our judicial duty to enforce all the plain language in
a statute. We also decline to address plaintiffs’ arguments pertaining to civil jury instructions
and the definition of fault in MCL 600.6304(8), because plaintiffs improperly raise both issues
for the first time in their reply brief. Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich
App 241, 252; 673 NW2d 805 (2003); MCR 7.212(G).
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envisioned by the legislature in § 600.2947(6)(a) was failure to exercise
reasonable care.
*
*
*
Therefore, a plaintiff can recover against a non-manufacturing seller only if the
seller fails to exercise reasonable care, or breaches an express warranty. Both the
plain language of § 600.2947(6) and the legislative intent behind the statute show
that non-manufacturing sellers cannot be held liable for damages due to breach of
implied warranty, unless they failed to exercise reasonable care. Given the plain
language of the statute, it is clear that the district court did not err in denying
plaintiff’s request to give the model jury instruction. It was necessary to modify
the instruction to reflect the law as it applied to the seller, defendant BMW NA.
As modified, the instruction includes reference to the breach of implied warranty,
as requested by plaintiff, but also includes the negligence element as required by
Michigan statutory law. [Emphasis in original.]
We agree with this rationale.
Finally, plaintiffs advance a public policy argument for our use in interpreting the statute.
Essentially, plaintiffs argue that because many consumer goods sold in the United States are
manufactured in China (by which plaintiffs must also mean unavailable to be sued), the
Legislature could not have intended to drastically limit the liability of nonmanufacturing sellers
by requiring plaintiffs to show fault in breach of implied warranty cases. Initially, we note that
the tree stand in this case was manufactured by an American-owned corporation, so what
Chinese manufacturers have to do with this case is not at all clear. Additionally, because we are
not dealing with common-law tort issues, plaintiffs’ argument invoking economic policy issues
should be raised to their state representative or senator for debate within the halls of our
Legislature, not to the Judiciary. Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 43; 576 NW2d
641 (1998); Ambs v Kalamazoo Co Rd Comm, 255 Mich App 637, 650; 662 NW2d 424 (2003).
We will not engage in judicial activism simply to rectify the injustice plaintiffs perceive will
result from a straightforward application of § 2947(6)(a).
III. CONCLUSION
In sum, MCL 600.2947(6)(a) requires a plaintiff to establish that a nonmanufacturing
seller failed to exercise reasonable care in addition to establishing proximate cause to prevail on
a products liability claim based on breach of implied warranty. Because plaintiffs failed to
present any evidence of a breach of reasonable care on the part of defendants with respect to the
tree stand, the trial court properly granted defendants’ motion for summary disposition.6
6
Given our holding, it is unnecessary to address defendant Faber Brothers’ argument regarding
whether any implied warranty was disclaimed.
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Affirmed.
Defendants may tax costs, having prevailed in full. MCR 7.219(A).
/s/ Christopher M. Murray
/s/ Jane E. Markey
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