Reference no: EM131914580

Problem: White v. Victor Automotive Products 2010 Mich. App. LEXIS 914 (unpublished)

Per Curium (Judges Michael J. Kelly and Douglas B. Shapiro)

1. Summary of Facts and Proceedings Plaintiff's decedent, Craig White, purchased a muffler repair kit manufactured and marketed by defendants. The kit included a metal patch to be placed over the hole in the muffler, a strip of "bandage" to be wrapped around the patch and the muffler to hold the patch in place, and mechanic's wire to wrap around and secure the bandage. The packaging described the product as a "Muffler and Tail Pipe Repair Kit" and stated, "Just wrap it on for instant repair." The instructions included with the kit, however, directed the user to "start the engine and run at idle for at least 10 minutes" after applying the "bandage." The instructions provided with the kit read in total:

INSTRUCTIONS:

1. Allow exhaust system and muffler to cool to a touch.

2. Clean surface of muffler or pipe to be repaired with sand paper, steel wool, or wire brush.

3. Cover holes with included metal heat shield, or by using metal or tin can.

4. Open foil packet containing bandage.

5. Wrap bandage completely around damaged area, overlapping each wrapping at least 3/4 inch. Note: Large repairs may require more than one bandage to adequately cover repair.

6. Secure bandage with mechanic's wire enclosed.

7. Start engine and run at idle for at least 10 minutes.

8. Bandage will cure with heat from exhaust system.

WARNING: Always wear safety classes and cloth or leather gloves when working on exhaust systems. Rust and debris can injure eyes and skin. Flush eyes thoroughly with water if contacted-for skin use soap and water. Never work on vehicle suspended in air NOT supported by adequate jack stands. IF SWALLOWED, DRINK WATER AND GET IMMEDIATE MEDICAL ATTENTION. [Emphasis in original.]

White attempted to perform the muffler repair on April 29, 2005. According to the testimony of White's wife and son, when they left the house at about 11:00 A.M., White was in the driveway, working on the muffler. When they returned at about 2:15 P.M., they found White dead in the garage with the car up on a floor jack, the motor running and the garage door An autopsy confirmed that White died of asphyxiation from carbon monoxide. Plaintiff's complaint alleged two violations of the duty to warn. First, plaintiff alleged that "Defendants breached their duty of care . . . in failing to include an instruction with the product that vehicles should not be run in an enclosed space or must be moved outside before starting the engine as directed [in the instructions]." Second, that "Defendant's breached their duty of care . . . in failing to warn of the dangers of carbon monoxide poisoning."

after a hearing, the trial court granted summary disposition to defendants, concluding: [I]t's clear that the material risk of death due to carbon monoxide poisoning as a result of running a car in an 1 The reason why White moved from the driveway into his garage remains unknown.

enclosed garage would be obvious to the reasonably prudent user of a muffler repair kit. I don't think you can really argue that much about it. . . . I think it would be obvious and that would be to the general public, and it would be especially obvious to someone who used motors. Granted he may have been an . . . outboard engine mechanic, but nevertheless, it seems to me that he was in a position especially to know this even more than an average citizen. But nevertheless, to a reasonably prudent person it would be obvious this was a highly dangerous thing. I think it is common knowledge that it's a dangerous thing and-especially when you look at so many other options he would have had, like just open the garage door, might have been a lot better.

Plaintiff now appeals.

A. REASONABLY PRUDENT PRODUCT USER

[T]he first issue is whether a reasonable juror could find that the material risk of remaining in a closed garage with a running automobile while the muffler bandage cures is or should be "obvious to a reasonably prudent product user.". . .

Given the lack of an obvious risk of harm contained within the product's appearance or function, defendants argue that no reasonable person could fail to know that remaining present while running a car in a closed garage while the muffler bandage cured carried with it a risk of material harm. For reasonable minds not to differ on the issue, it would have to be obvious that the exhaust contained carbon monoxide or other injurious chemicals and that exposure for a period long enough for the muffler bandage to cure created a material risk of harm. A fact finder may ultimately conclude that defendants are correct that a reasonably prudent person would be aware that automobile exhaust contains carbon monoxide or other injurious chemicals and that exposure for a period long enough for the muffler bandage to cure creates a material risk of harm. However, defendants have not provided any evidence from which such a conclusion may be drawn. . . . At the time of the motion, plaintiff had proffered several articles and data that significant numbers of people, as many as 100 per year die, from accidental carbon monoxide poisoning in Michigan in a manner that supports plaintiff's claim that the danger of exposure to automobile exhaust is not necessarily "obvious to a reasonably prudent user." Plaintiff also presented an expert affidavit in this regard. Finally, plaintiff submitted warnings from devices that create carbon monoxide exhaust. In contrast to plaintiff's presentation, the defense did not proffer any evidence supporting its contention that a reasonable person would know that carbon monoxide is present in automobile exhaust or that an exposure long enough for the muffler bandage to cure presents a material risk of harm.

Defendants provided no evidence in the present case that a reasonable person would know that an exposure to automobile exhaust in a garage for the time needed to cure the muffler repair presented a risk of material harm. Indeed, the only evidence in the record at this time is the data provided by plaintiff that significant numbers of people die from accidental carbon monoxide poisoning and the affidavit from plaintiff's expert supporting plaintiff's claim that the danger was not obvious. Under these circumstances, defendants were not entitled to summary disposition on the question of whether the risk of material harm from carbon monoxide inhalation from running an automobile long enough to cure this muffler product is or should be obvious to a reasonably prudent product user.

We take no position on whether a reasonably prudent user knows that automobile exhaust contains carbon monoxide nor that a exposure long enough to cure the muffler bandage can cause material harm. . . . Rather, we hold that there was insufficient evidence in the record as it presently exists to make that determination as a matter of law. . . . Reversed and remanded.

Judge Kirsten F. Kelly Dissenting

I disagree with my colleagues' conclusion that the trial court's grant of summary disposition in this matter was premature. . . . [R]unning the engine of a car in a small, enclosed space, such as a garage, is an obvious material risk to a reasonably prudent product user and would be especially obvious to a person like decedent whose employment involved servicing and repairing engines. I would affirm the trial court.

Questions

1. Do you agree with the lower court that the risk of carbon monoxide poisoning from running a car in an enclosed garage would be obvious to the reasonably prudent user? Explain.

2. Why did the plaintiff win this case on appeal?

3. Michigan law bars liability in these situations if the risk "is or should be a matter of common knowledge to persons in the same or similar positions." Craig White had some, unspecified experience in servicing and repairing marine engines. He had also served as an "engine dynamo technician" and a "marine technician." Is that background, in and of itself, sufficient to establish that the carbon monoxide risk was a matter of "common knowledge" to White? Explain.

4. Bresnahan, age 50 and 5'8" tall, was driving her Chrysler LeBaron, equipped with a driver's side air bag, at between 25 and 30 miles per hour. She was seated less than one foot from the air bag cover. Bresnahan was distracted by police lights and rear-ended a Jaguar, triggering the LeBaron air bag, which broke Bresnahan's arm and caused various abrasions. The vehicle did not include a warning about the danger of sitting too close to the air bag. Was the vehicle defective because of the absence of a warning? Explain. See Bresnahan v. Chrysler Corp., 65 Cal. App. 4th 1149 (1998).

5. Laaperi installed a smoke detector in his bedroom, properly connecting it to his home's electrical system. Six months later, Laaperi's house burned and three of his children were killed. A short circuit, which caused the fire, also deprived the A.C.-powered smoke detector of electricity. Thus, the detector did not sound a warning. Laaperi then claimed that Sears, Roebuck, where he purchased the detector, was guilty of negligence for failing to warn him that a fire might disable his smoke detector such that no warning would issue. How would you rule in this case? See Laaperi v. Sears, Roebuck & Co., 787 F.2d 726 (1st Cir. 1986).