Opinion
No. 103435.
June 28, 1996
Leave to Appeal Denied June 28, 1996:
reported below: 211 Mich. App. 175.
I would grant leave to appeal.
I would grant leave to appeal for the reasons stated in the statements accompanying the denial of leave to appeal in Adams v Bic Corp, 445 Mich. 901, 905 (1994), and for the reasons stated by a majority of the Court of Appeals in the instant case, which expressed its disagreement with the decision of the Court of Appeals in Adams, a first-out decision constituting binding precedent under Administrative Order No. 1994-4. Boumelhem v Bic Corp, 211 Mich. App. 175, 187 (1995).
In Kirk v. Hanes Corp of North Carolina, 16 F.3d 705 (CA 6, 1994), a majority in the United States Court of Appeals for the Sixth Circuit, on the authority of the Court of Appeals decision in Adams, affirmed the dismissal of another action in which the Bic Corporation was a defendant. Judge Ryan, a former justice of this Court, applying Michigan law, dissented, stating:
[F]ollowing the precedent of Owens [ v Allis-Chalmers Corp, 414 Mich. 413 (1982)] and the guidance of Glittenberg [ v Doughboy Recreational Industries (On Rehearing), 441 Mich. 379 (1992)], I would hold that, as a matter of law, Bic owed the duty to design its lighter to eliminate any unreasonable risk of foreseeable injury. Whether it did so is a question of fact, and whether the pleadings and papers in this case frame that question of fact has never been decided. In all events, the district court erred when it concluded that the open and obvious rule obviated the threshold inquiry of duty in this design defect case. [ Id., p 713 (emphasis added).]
I would also grant leave to appeal for the reasons stated in the opinion of the dissenting Court of Appeals judge who, while she expressed her agreement with the author of the lead opinion who explained why he was of the opinion that Adams had not been correctly decided, said:
[E]ven if the Michigan courts adopt a rule that relieves manufacturers from any duty to design products so as to eliminate foreseeable, unreasonable risks when those risks are presented to an unintended, but foreseeable, user, the manufacturers should not be relieved from liability where the elements of wilful and wanton misconduct can be established. Plaintiffs sufficiently pleaded such a claim and provided factual support. [ Id., pp 187-188 (emphasis added).]
Plaintiffs contend, in effect, that Bic has long had knowledge that children frequently obtain possession of its lighters and operate them, igniting materials and causing fires, that Bic has also possessed the means to safely, effectively, and inexpensively render its lighters "child-proof," and that, nevertheless, Bic has withheld these devices and has fought regulations requiring these devices. (Such regulations were passed by the Federal Consumer Products Safety Commission in 1993). In my view, these allegations go beyond mere negligent design. I also note that plaintiffs requested discovery in the trial court that was not provided and that might provide further support for these contentions.