week 3 - Assignment Essays

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Week 3 Activity Template

1. Summarize the facts of the case:

2. Summarize the arguments:

· Plaintiff:

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·
·

· Defendant:

·
·
·

3. Describe the history of the proceedings.

4. Explain the law regarding product liability defect (1–2 paragraphs).

5. Provide the holding of the court and reasoning for the court’s decision.

[End of Document]

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Date and Time: Sunday, January 15, 2023 6:24:00PM EST

Job Number: 187920913

Document (1)

Estate of Simpson v. GM, LLC

, 2020 Mich. App. LEXIS 12

Client/Matter: -None-

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As of: January 15, 2023 11:24 PM Z

Estate of Simpson v. GM, LLC

Court of Appeals of Michigan

January 2, 2020, Decided

No. 341961, No. 342291

Reporter
2020 Mich. App. LEXIS 12 *; 2020 WL 39978

ESTATE OF TRASK SIMPSON, by SCOTT SIMPSON,
Personal Representative, Plaintiff-Appellee/Cross-
Appellant, v GENERAL MOTORS, LLC, formerly known
as GENERAL MOTORS COMPANY, formerly known as
MOTORS LIQUIDATION COMPANY, formerly known
as GENERAL MOTORS CORPORATION, GONZALEZ
INTEGRATED MARKETING, doing business as
GONZALEZ DESIGN GROUP, GONZALEZ DESIGN
ENGINEERING, doing business as GONZALEZ
DESIGN GROUP, GONZALEZ TECHNICAL
SERVICES, doing business as GONZALEZ DESIGN
GROUP, GONZALEZ MFG TECHNOLOGIES, doing
business as GONZALEZ DESIGN GROUP, GONZALEZ
PRODUCTIONS SYSTEMS, doing business as
GONZALEZ DESIGN GROUP, and GONZALEZ
CONTRACT SERVICES, doing business as
GONZALEZ DESIGN GROUP, Defendants, and JWF
TECHNOLOGIES, LLC, doing business as JWF
CONTAINER TECH, and KEENER CORPORATION,
Defendants-Cross-Appellees, and STABILUS, INC.,
Defendant/Cross-Defendant-Appellant/Cross-Appellee,
and ZF NORTH AMERICA, INC., Defendant/Cross-
Plaintiff.ESTATE OF TRASK SIMPSON, by SCOTT
SIMPSON, Personal Representative, Plaintiff-
Appellee/Cross-Appellant, v GENERAL MOTORS, LLC,
formerly known as GENERAL MOTORS COMPANY,
formerly known as MOTORS LIQUIDATION
COMPANY, formerly known as GENERAL MOTORS
CORPORATION, GONZALEZ INTEGRATED
MARKETING, doing business as GONZALEZ DESIGN
GROUP, GONZALEZ DESIGN ENGINEERING, doing
business as GONZALEZ DESIGN GROUP, GONZALEZ
TECHNICAL SERVICES, doing business as
GONZALEZ DESIGN GROUP, GONZALEZ MFG
TECHNOLOGIES, doing business as GONZALEZ
DESIGN GROUP, GONZALEZ PRODUCTIONS
SYSTEMS, doing business as GONZALEZ DESIGN
GROUP, and GONZALEZ CONTRACT SERVICES,
doing business as GONZALEZ DESIGN GROUP,
Defendants, and JWF TECHNOLOGIES, LLC, doing
business as JWF CONTAINER TECH, Defendant-

Appellant/Cross-Appellee, and KEENER
CORPORATION, Defendant-Cross-Appellee, and
STABILUS, INC., Defendant/Cross-Defendant-Cross-
Appellee, and ZF NORTH AMERICA, INC.,
Defendant/Cross-Plaintiff.

Notice: THIS IS AN UNPUBLISHED OPINION. IN
ACCORDANCE WITH MICHIGAN COURT OF
APPEALS RULES, UNPUBLISHED OPINIONS ARE
NOT PRECEDENTIALLY BINDING UNDER THE
RULES OF STARE DECISIS.

Subsequent History: Leave to appeal denied by
Simpson v. GM, LLC, 2021 Mich. LEXIS 95 (Mich., Feb.
2, 2021)

Leave to appeal denied by Simpson v. GM, LLC, 2021
Mich. LEXIS 146 (Mich., Feb. 2, 2021)

Prior History: [*1] Genesee Circuit Court. LC No. 16-
107103-NO.

Simpson v. GM LLC, 2018 Mich. App. LEXIS 1501
(Mich. Ct. App., Apr. 17, 2018)

Core Terms

spring, manufacturer, ball, rack, rivet, stud, summary
disposition, misuse, foreseeable, express warranty,
circuit court, warranty, overextension, cylinder,
manufacturing defect, seller, proximate cause, no
evidence, sidewall, product liability, component
manufacturer, supporting evidence, piston, plaintiff’s
claim, discovery, email, breach of implied warranty,
component part, design defect, proximate

Judges: Before: M. J. Kelly, P.J., and Markey and
Gleicher, JJ.

Opinion

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PER CURIAM.

This product liability action arises from the explosion of
a gas spring. The spring was attached to the sidewall of
a large metal rack owned by General Motors. GM used
the rack to store and transport auto parts. Plaintiff Trask
Simpson was severely injured when the gas spring
violently separated as he raised the sidewall so that he
could repair the rack’s floor. The cylinder section of the
spring penetrated Simpson’s face, lodging in his sinus
cavity and brain.

Simpson claims that a manufacturing defect caused his
accident. A rivet inside the spring failed due to an
inherent weakness, Simpson contends, resulting in the
high-speed detonation of the device and his injury.
Simpson sued the spring manufacturer (defendant
Stabilus, Inc.), the manufacturer of the rack (defendant
Keener Corporation), GM, and several other entities
involved the rack’s design and distribution.

All defendants brought motions for summary disposition.
Some were granted, and some were denied. We
granted leave to consider a host of legal issues raised in
the motions. Simpson cross-appealed a ruling denying
a [*2] discovery sanction, adding to the number of
questions presented.

We affirm the circuit court’s rulings as to defendant
Stabilus and the discovery sanction, reverse as to
defendants Keener and JWF, and remand for further
proceedings consistent with this opinion.

I. BACKGROUND FACTS

A. THE RACK AND GAS SPRING

Trask Simpson was employed by Dort Steel as a
welder. Dort repaired or salvaged large metal racks in
which GM stored and transported auto parts, such as
bumpers. Dort employees either fixed broken racks
delivered by GM, or disassembled them for reuse of
their parts.

The rack involved in this case was a large metal
container that was open in the front, had two lateral
walls called sidewalls, and a rear wall called a T-bar. It
arrived at Dort in a collapsed condition, with the three
walls folded down to the rack’s floor. The two sidewalls
weighed approximately 90 pounds each. Gas springs
manufactured by Stabilus assisted in lifting them into
position. Once the two sidewalls were raised, the rear
wall could be fastened in place.

Here is a photograph of the rack in the fully open
position; the rear wall is in the foreground:

The inserts magnify the gas springs and the smaller red
circles indicate [*3] their positions on the rack’s
sidewalls.

Gas springs are common, everyday products. They are
found on the tailgates and hoods of cars, where they
facilitate the upward movement of heavy metal.
Underneath an office chair a gas spring dampens
movement, preventing the seat from slamming down
when someone sits on it. Gas springs have different
sizes, strengths, and uses, but they all work by storing
and releasing energy.

Gas springs consist of two primary components: a rod
and a cylinder. The spring depicted on the left in the
above photo is the spring that exploded; only the rod
end remained in place. The spring on the right is fully
extended, and both the rod and cylinder are intact.

A gas spring’s function depends on a transfer of
pressure within the spring itself. A metal tube, called the
cylinder, holds pressurized nitrogen gas. A rod with a
piston at the end fits into the cylinder. The rod end of the
cylinder contains seals that glide along the rod and help
guide it. As the spring is extended, motion of the piston
along the rod allows the gas to flow from one end of the
spring to the other. The pressure differential created by
movement of the piston generates a force that helps
raise [*4] a heavy object.

The piston’s position on the rod is maintained by the
seals and washers and, ultimately, by a single rivet. The
rivet is at the center of plaintiff’s claims in this case.
According to plaintiff, the gas spring that injured
Simpson separated because the rivet head failed. That
failure, plaintiff posits, was due to a manufacturing
defect. The rivet head in the spring that injured Simpson

2020 Mich. App. LEXIS 12, *1

Page 3 of 16

was a “bad apple,” plaintiff maintains.

B. THE ACCIDENT

When the rack in the photograph was delivered to Dort,
Simpson inspected it and decided to spot-weld a portion
of the floor. As he started to raise the left side-wall, the
gas spring blew apart. Propelled by the high-pressure
nitrogen gas, the cylinder flew through the air and
lodged in Simpson’s face, penetrating his sinus and
brain. The rod end of the spring remained attached to
the rack. Here is a radiologic image obtained at the
hospital where Simpson was taken, showing the
cylinder embedded in his head:

Simpson died in August 2018, five years after the
accident.

Before his death, Simpson sued a number of entities
that he alleged were involved in the manufacture,
distribution, and use of the gas spring. Pertinent here,
the defendants [*5] were: GM; Gonzalez Contract
Services (the designer of the rack); Keener Corporation
(the manufacturer of the rack); JWF Technologies (the
supplier of the gas spring), and Stabilus, Inc. (the
manufacturer of the gas spring). Simpson’s claims
sounded in negligence and product liability.

The parties engaged in extensive discovery. More than
two dozen depositions were taken. Jointly, the parties
performed testing on the cylinder end of the spring and
on exemplar springs. Dort apparently lost or destroyed
the rod end of the spring that injured Simpson. A
number of engineering experts provided depositions
regarding the cause of the spring’s separation.

The experts agreed (and Simpson does not contest)
that the spring had been misused at GM before it
arrived at Dort. Specifically, the evidence established
that the spring had been overextended at least once,

and possibly many times. According to several of the
expert witnesses, overextension precipitated a failure of
the rivet head. When Simpson began to raise the
sidewall, the defective rivet head allowed an
instantaneous transfer of high-pressure gas, violently
pushing the two components of the spring apart. As Dr.
Stephen Batzer, defendant [*6] Keener’s engineering
expert put it: “if the rivet fails and the other components
of the piston assembly are then free on the . . . rod end,
pressure inside of the cylinder will cause the cylinder
and rod to separate under force, and if they’re not
captured by their mounting points there will be . . . a
rocket.”

All of the defendants brought motions for summary
disposition under MCR 2.116(C)(10). Simpson orally
moved the court to impose a discovery sanction against
JWF arising from JWF’s alleged failure to timely
supplement its discovery responses. The circuit court
granted summary disposition to Keener, but denied
summary disposition to GM, Gonzalez, Stabilus, and
JWF. The court also denied Simpson’s discovery
sanction motion. GM and Gonzalez have settled with
Simpson. Stabilus and JWF now appeal by leave
granted; Simpson cross-appeals the dismissal of
Keener and the denial of sanctions.

We turn to a deeper discussion of the evidence and the
claims on appeal, which we address party-by-party. Our
review of the evidence conforms to the rules governing
summary disposition. We have considered the circuit
court’s summary disposition decisions de novo by
familiarizing ourselves with the pleadings,
admissions, [*7] affidavits, and other record
documentary evidence “in the light most favorable to the
nonmoving party to determine whether any genuine
issue of material fact exists to warrant a trial.” Walsh v
Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).
When the record has left open an issue on which
reasonable minds could differ, we have concluded that a
genuine issue of material fact exists, precluding
summary disposition. West v Gen Motors Corp, 469
Mich. 177, 183; 665 N.W.2d 468 (2003). Our review has
also been guided by the principle that “[e]ven where the
evidentiary facts are undisputed, it is improper to decide
the matter as one of law if a jury could draw conflicting
inferences from the evidentiary facts and thereby reach
differing conclusions as to ultimate facts.” Nichol v Billot,
406 Mich 284, 301-302, 279 NW2d 761 (1979) (citations
omitted).

II. STABILUS

2020 Mich. App. LEXIS 12, *4

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Stabilus manufactures a wide variety of gas springs of
different lengths and pressures, and designed for use in
diverse applications. Some are “off the shelf” products.
Others, such as the spring involved in this case, are
custom-made. According to James Kull, Stabilus’s
Director of Industrial Applications Engineering, the
subject spring was “a custom product” manufactured for
defendant JWF, with “a certain length, a certain stroke,
a certain force, and end fitting connections.”

Defendant Gonzalez designed the [*8] GM rack. The
rack’s design included two Stabilus springs, one
mounted to each sidewall. A ball stud system (the “end
fitting connections” referred to by Kull) attached the
springs to the sidewalls. The springs selected for
incorporation in the GM racks were manufactured with a
ball cup, also called a “socket,” at each end. The ball
cup was intended to couple with the ball stud—a
spherical head on a shank, affixed to the rack. The ball
studs used on the GM racks were selected by defendant
Gonzalez, and conformed to Stabilus’s specifications.
Here are photographs depicting the ball stud and a ball
socket system. From left to right, the first two photos
show the socket; the second depicts the clip, discussed
below. The third photo is of a ball socket. The photo at
the bottom of the display shows a spring’s socket
attached to a ball stud:

Clips on the ball sockets helped keep the balls and cups
together. According to Stabilus’s instructions, before
freeing the spring from its attachment points, the clips
would first be removed with a screwdriver. The evidence
supports that when Simpson began working on the rack,
the clip on the left spring’s ball socket had already been

removed. Simpson [*9] denied having removed the clip.
Nevertheless, the ball apparently remained within the
ball cup until the spring separated.1

According to James Mattice, a forensic engineer
retained by Dort, the spring blew apart due to a failure of
the rivet head holding the piston components in place,
likely precipitated by overextension of the spring: “I
believe at some point the gas spring was loaded in
tension or overextended which resulted in its failure. . . .
I believe at some point, yes, the rivet failed.” In Mattice’s
estimation, the rivet failure occurred before the rack
arrived at Dort. Mattice tested four exemplar gas springs
in his laboratory to determine the amount of force
required to fail their rivet heads. His testing revealed
that when extended in an axial direction, the rivet heads
maintained their function until the load reached
approximately 2,000 pounds. When the spring was
overextended by .11 to .13 inches, its components
would “start breaking up.” C. Michael Dickinson, an
engineer retained by GM, agreed that the spring
separated because “[t]he rivet apparently failed.”

Glenn Akhavein, an engineering expert retained by
Simpson, concurred that the rivet head’s failure caused
the [*10] spring to separate:

This style of gas spring is held together by a rivet
head, which had been damaged while at the GM
facility due to over extension of the gas spring.
When Mr. Simpson started lifting the left side rail
the cylinder end of the gas spring (the end that
rotates upwards while the side rail is lifted), came
off of its ball stud and due to the damage that had
taken place at GM it did not extend slowly but
instead flew off with enough velocity to penetrate
deeply into Mr. Simpson’s head.

His testing of exemplar springs demonstrated that the
rivet head held until at least 1,500 pounds of force were
applied. To generate the force necessary to separate
his exemplar springs, Akhavein pulled on them by
attaching them to his Chevrolet Suburban vehicle.

James Kull, Stabilus’s engineering representative,
admitted that the evidence supported that the rivet head
failed, and that this failure caused the spring to come
apart. Kull explained that the rivet is the only part of the

1 Plaintiff’s claims against GM centered on the removal of the
clip, which likely occurred before the rack reached Dort, and
on GM’s allegedly negligent overextension of the rack’s
sidewalls. According to plaintiff, GM workers had dragged the
racks with fork-lift trucks, bending the left sidewall and
damaging internal components of the spring.

2020 Mich. App. LEXIS 12, *7

Page 5 of 16

spring’s inner workings that retains the piston
components on the rod. According to Kull, the spring
was designed so that the rivet head would withstand
overextension. Kull testified that the ball stud is
supposed [*11] to sheer before the rivet head fails, with
the ball stud functioning as a “fuse.” After examining a
CT scan of the internal components of the failed spring,
which displayed distortions of the washers holding the
piston in place and an absence of the rivet head, Kull
expounded:

A. [T]he way we designed this is the ball stud is
designed to sheer at a force much lower than this.
So to apply a longitudinal load through the ball stud,
you’re going to break the ball stud prior to that, you
know, just by our strength of materials. So the ball
stud will sheer before that in this type of connection.
We have a 10-millimeter ball stud on that metal
connection. That is the, say, like the fuse or what
would break before I would expect to see, you
know, piston . . . incident.

Q. Just for the record, there’s a ball stud at the top
of the gas spring and a ball stud at the bottom?

A. Yes.

Q. And if I understand what you’re telling me is that,
in the event that there’s an excessive longitudinal
force . . . like, force along the long axis of the
spring.

A. Exactly. Yes.

Q. If we have excessive force on the long axis of
the gas spring, the ball spring is intended to fail
first?

A. That is correct, yes.

Q. And [*12] that would be where it’s next down to
the attachment point where you bolt it on to
whatever you’re attaching it to?

A. Exactly. Yes. [Emphasis added.]
In his 28 years with Stabilus, Kull asserted, he had
never seen a gas spring separation like this one.

Dickinson, the engineer retained by GM, agreed that the
ball stud was supposed to fail before the rivet head. In
his view as well as Kull’s, overextension of the spring
should have tripped the ball stud connection. Had this
happened, the spring would have fallen off the rack. “A
13-millimeter nominally grade-2 fastener [used in this
case] is such that if you put a pure axial tensile load on

the strut [spring], you will significantly deform and/or
break the ball stud before you fail the internal
components of the strut.” He continued:

First let me say my understanding is it’s Mr. Kull’s
testimony that says the ball studs are to act as a
fuse and that they should break prior to a
separation failure of the strut. I believe that that’s
correct and I believe that this was probably
designed that way, which makes the failure of the
strut through whichever mechanism or combination
even more mysterious because we didn’t fail these
ball studs, and [*13] to my knowledge there’s
nothing magical about the ball studs on the
accident rack. They’re just grade 2 HS135’s or
whatever, right? That’s just garden variety grade-2
steel.
If we had a high-load quasi-static potential load
applied sufficient to fail the rack, the rivet head as it
was done in the lab tests, . . . the ball studs would
have failed or broken or bent before that.

He added, “So if you somehow put 1,000-pound highly
dynamic load on that system, I would still expect the ball
studs to go first.”

Dickinson, too, tested exemplar springs and ball studs.
His testing revealed that the ball studs began to exhibit
signs of failure, including bending, when between 800
and 1,000 pounds of force was applied. Examination of
photographs of the ball studs involved in Simpson’s
accident revealed no evidence of failure, however: “I
would expect to see bending of that ball stud in those
photos, and I don’t. And you certainly don’t see bending
like that.” He agreed that the rivet head in this case
“would have failed below 800 pounds” if the
overextension was purely axial “and all other things are
out of play, there’s no heating, there’s no prior damage
on the inside, there’s no fatigue, crack [*14] growth that
predated this . . . .” And based on his examination of the
involved spring, Dickinson concluded that it was
subjected to “primarily axial tension.”

No evidence produced by any party suggested that the
ball studs deformed or broke before the spring
exploded. Instead, the evidence summarized above
substantiates that the rivet head failed first. And
according to Akhavein, “[i]f the rivet head doesn’t fail
you don’t get separation between the two components.”
Had the rivet head continued to function despite the
overextension, “then it’s going to act just like it always
does; the ball stud breaks and from whatever position
this is compressed, it’s going to slowly expand.” Further
questioning reinforced this point:

2020 Mich. App. LEXIS 12, *10

Page 6 of 16

Q. Simply put, my question is this. What would
have happened if the rivet head did not fail?

A. The gas spring would have extended to its full
extent and then stopped.

Q. If the rivet head had not failed would there have
been an injury to Trask?

A. I don’t believe so.

In Akhavein’s view, either the spring was not designed
with a strong enough rivet head, or it was “manufactured
in a manner that resulted in a product that didn’t meet
design intent.” As discussed in more detail [*15] below,
plaintiff has elected to confine his claim against Stabilus
to a manufacturing defect.

When discovery concluded, Stabilus moved for
summary disposition, presenting three arguments.
Stabilus first contended that as the manufacturer of a
component part, it bore no responsibility “for the use of
the gas spring within the application in question.”
Further, Stabilus asserted, the gas spring was misused.
Under MCL 600.2947(2), Stabilus continued, it was not
liable for the consequences of misuse unless the
misuse was reasonably foreseeable. Here, Stabilus
claimed, the misuse of the racks was unforeseeable.
Stabilus also challenged plaintiff’s defective design
claim.

In response, plaintiff abandoned all previously pleaded
design defect claims raised against Stabilus and limited
his legal argument to “a manufacturing defect.” The
court denied Stabilus’s initial motion. Following oral
argument, the circuit court permitted Stabilus to refile its
motion for summary disposition. In its renewed motion,
Stabilus contended that no evidence supported that the
gas spring was defectively manufactured.

At hearings conducted on the various defendants’
motions for summary disposition, plaintiff’s counsel
declared: [*16]

This is a products liability action and they are
talking about alternative design, underlying design.
There is nothing wrong with the design of this gas
spring. It is a manufacturing defect. The gas spring
did not comply to the design of the gas spring itself.
As the defense counsel for Stabilus indicated, there
is a design criteria of the gas spring in which the
rivet will be stronger than the ball stud. So in other
words, if there is going to be an overextension, the
overextension will break the ball stem, but the rivet
will stay in place. The reason that’s the distinction

is, that prevents an explosion. So, the issue again
is not alternative design . . . .

Plaintiff disputed that Stabilus supplied merely a
“component,” highlighting that the spring was a
completed product used in conjunction with another
product. Counsel analogized, “Stabilus'[s] claim of
lacking responsibility for a component part is as if a
manufacturer of a tire claims it has no liability for tire
defects because it didn’t know if it was going to be used
on a Chevrolet or a Buick.” Misuse of the spring was
foreseeable, counsel urged.

The circuit court ruled that an issue of fact precluded
summary disposition of plaintiff’s [*17] defective
manufacturing claim. As to the foreseeability of misuse
of the spring, the court stated:

Plaintiff argues that this misuse was clearly
foreseeable because Stabilus had accounted for
overextension and excess force on the gas spring
in their design criteria. And if this safety mechanism
that was meant to prevent harm came out of – –
coming out of misuse failed, then it seems clear
that Stabilus foresaw the misuse of the spring and
designed it accordingly. So, I’m going to let a jury
decide that and your motion is denied.
On appeal, Stabilus renews most of its arguments.
We address each in turn.

A. STABILUS’S LIABILITY AS COMPONENT
MANUFACTURER

Stabilus asserts that it had “no duty arising from the
application” of its spring in the completed rack, because
Michigan law absolves a manufacturer of the
responsibility to anticipate how its product might
become potentially dangerous when incorporated into a
unit designed and manufactured by a different entity.
Further, Stabilus contends, plaintiff’s experts did not
offer any opinions supporting that the spring was
defective independent from the ball stud. And because
Keener paired the spring and the ball stud, it qualifies as
the competed [*18] product manufacturer, not Stabilus.

We begin with Stabilus’s argument that because it
manufactured only the spring itself and not the ball stud,
it cannot be held liable for Simpson’s injury. Stabilus
rests this argument on two cases: Childress v Gresen
Mfg Co, 888 F2d 45 (CA 6, 1989), and Jordan v Whiting
Corp, 49 Mich App 481; 212 NW2d 324 (1973), rev’d in
part on other grounds 396 Mich 145; 240 NW2d 468
(1976). Childress and Jordan are readily distinguishable
from this case. The Sixth Circuit’s holding in Childress is
limited to cases alleging defective design: “[U]nder
Michigan law a component part supplier has no duty,

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independent of the completed product manufacturer, to
analyze the design of the completed product which
incorporates its nondefective component part.”
Childress, 888 F2d at 49 (emphasis added). Plaintiff has
abandoned a defective design claim and rests its
arguments instead on a claim of “defective
manufacture” or breach of implied warranty. Childress is
inapposite.

Nor is Jordan helpful to Stabilus. There, too, this Court
limited a manufacturer’s duty when the component parts
its supplies were “not in and of themselves dangerous
or defective[.]” Jordan, 49 Mich App at 486. Like
Childress, the plaintiff’s claims in Jordan did not involve
an allegedly defective part. This is a critical distinction;
neither case addresses the duty of a component
manufacturer [*19] to produce a nondefective part.
“Component manufacturers should be summarily
dismissed from litigation if the component product is
defect-free.” Cardelli & Cardelli, Product Liability Relief
for Component Manufacturers, 69 Mich BJ 812, 814
(1990). The opposite proposition is equally true and
applies here: when evidence supports that a component
harbors a dangerous defect, summary disposition is
improper.

Moreover, Michigan’s product liability act specifically
recognizes that a component manufacturer may bear
liability for a defectively manufactured product. The act,
MCL 600.2945 et seq., defines a “product liability
action” as “an action based on a legal or equitable
theory of liability brought for the death of a person or for
injury to a person or damage to property caused by or
resulting from the production of a product.” MCL
600.2945(h). A “product” “includes any and all
component parts to a product.” This language signals
that the Legislature did not intend that component-part
manufacturers would be exempt from tort liability based
merely on their status as component-part
manufacturers. Rather, the component-parts doctrine is
a common-law defense applicable in certain product
liability actions. It is not a form of blanket immunity for a
defectively [*20] manufactured part that happens to
have been integrated within a larger product.

Assuming that the component-parts doctrine remains
viable despite the enactment of the product liability act,
we highlight that it embodies a policy determination. At
its core, this common-law concept holds that component
manufacturers should not be required to obtain and
review the design of a completed product to
independently assess whether a component will function
safely and as intended. “For example, to borrow the

Childress facts, if a valve has many applications and is
dangerous only when another company uses it in a log-
splitter, then it is difficult to argue that the valve supplier
‘created’ the risk; rather, it appears that the
manufacturer of the log-splitter did.” Mansfield,
Reflections on Current Limits on Component and Raw
Material Supplier Liability and the Proposed Third
Restatement, 84 Ky LJ 221, 240 (1996). But the
doctrine has never been applied in a case resting on a
defective manufacturing theory, and for good reason.

When a component has been defectively manufactured,
its integration into a larger or more complex product
should not automatically eliminate its manufacturer’s
liability. “[A] manufacturer of a [*21] component part
clearly is liable for injuries caused by a component that
was defective or unreasonably dangerous at the time it
left the control of the manufacturer.” Davis v Komatsu
America Indus Corp, 42 SW3d 34, 42 (Tenn, 2001). The
Wisconsin Supreme Court has explained that
“[i]ntegration into another product does not shift
responsibility from the manufacturer of a defective
component to another party ‘who [is] in no position to
detect the hidden defect.'” Godoy ex rel Gramling v EI
du Pont de Nemours & Co, 2009 WI 78; 319 Wis 2d 91,
120-121; 768 NW2d 674 (2009), quoting City of Franklin
v Badger Ford Truck Sales, Inc, 58 Wis 2d 641, 649-
650; 207 NW2d 866 (1973). Logically, it follows that the
component parts doctrine cannot apply in a case
premised solely on a defective manufacturing claim.

Simpson was injured by the failure of the gas spring.
Although the gas spring was a component of the rack,
plaintiff’s claims against Stabilus center on the injury
“caused by or resulting from the production of” the gas
spring itself. The rack did not fail; the spring did. A
component manufacturer has no liability when the
manufacturer of a completed product integrates the
component in an unsafe or unforeseen manner. Portelli
v IR Constr Prods Co, Inc, 218 Mich App 591, 603-604;
554 NW2d 591(1996). However, a component
manufacturer is subject to liability when its “product,”
defined by the act to specifically include components, is
incorporated in a foreseeable way and fails due to
inherent defects. Here, the spring functioned [*22]
separately from the rack and had a separate purpose.
We discern no policy basis for imposing the component-
parts doctrine to these facts.

Moreover, the evidence substantiates that Stabilus
knew that its springs could be used in applications
identical or substantially similar to the rack, and has
raised no claim that the nature or characteristics of the

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spring were changed by its incorporation. Because
plaintiff alleges that the spring itself was defective and
evidence supports that claim, the component-parts
doctrine does not absolve Stabilus of liability.

B. EVIDENCE THAT THE SPRING WAS DEFECTIVE

Stabilus next posits that it cannot be held liable for any
injury caused by the spring because “[p]laintiff’s experts
did not offer any opinion that the gas spring—
independent from any ball stud—was defective.” We do
not interpret the law or the evidence in so limited a
fashion.

Stabilus manufactured the spring at issue with sockets
at both ends. Kull’s testimony supports that Stabilus
knew and intended that the spring would be coupled
with ball studs. No evidence of record suggests that the
ball studs used in this case were defective, or differed
from the ball studs that Stabilus anticipated [*23] would
be paired with its spring. Rather, Kull testified that “the
way we designed [the gas spring] is the ball stud is
designed to sheer at a force much lower than this . . . .
So the ball stud will sheer before that in this type of
connection.” With regard to the specific spring involved
here, Kull continued, “[w]e have a 10-millimeter ball stud
on that metal connection. That is the, say, like the fuse
or what would break before I would expect to see, you
know, piston . . . incident.” He clarified by concurring
that “[i]f we have excessive force on the long axis of the
gas spring, the ball stud is intended to fail first[.]” Based
on this testimony, Akhavein opined that the rivet “did not
meet design intent”:

Q. So if the design intent is not to have the rivet fail
first but rather the ball stud, if you have a situation
like this where the rivet head does fail first, do you
have an opinion as to whether or not it has met the
design criteria?

A. Oh, this is about as straightforward it gets [sic].
It’s supposed to act like this and it acted like this. It
absolutely didn’t meet the design criteria.

Q. If it didn’t meet the design criteria, do you have
an opinion whether or not it was
manufactured [*24] in a way that did not comply
with the design criteria?

A. If we are talking – – well, the end product was
manufactured in a manner that resulted in a product
that didn’t meet design intent.

He later elucidated that this testimony meant that there
was a manufacturing defect, “based upon the fact that it

didn’t meet the design intent.”2

This testimony creates a reasonable inference that the
spring behaved in an unexpected and defective manner,
as it broke apart despite that the cylinder also came
loose from the ball stud. Stabilus accurately points out
that when answering a different question posed during
his 359-page deposition, Akhavein denied the existence
of a manufacturing defect. We must view the evidence
in the light most favorable to plaintiff, however, and
when considered through that lens, Akhavein corrected
his previous testimony when given an opportunity later
in the deposition.

And we would find that plaintiff has established a
question of fact regarding his defective manufacturing
claim regardless of Akhavein’s testimony. In Holloway v
Gen Motors Corp (On Rehearing), 403 Mich 614, 618;
271 NW2d 777 (1978), our Supreme Court held that “a
plaintiff may establish by circumstantial as well as direct
evidence that there was a defect in the product when it
left [*25] the manufacturer.” Holloway is analogous to
this case. The issue presented there was “whether the
ball joint assembly of” the plaintiff’s car failed while the
car was being driven, or after the car “hit a ditch and
then a utility pole.” Id. at 620. The evidence established
that “the break in the ball joint assembly was fresh,
metallurgically clean, and due to an impact failure.” Id.
at 624. This finding negated that the car had been
improperly maintained or misused. The Supreme Court
concluded, “We are left with a reasonable probability
that something was inherently wrong with the ball joint
assembly such that it was unable to withstand an impact
it should have withstood.” Id. at 625.

Here, multiple experts testified that the rivet head failed
unexpectedly. Their testimony was based on meticulous
examinations of the cylinder and its internal
components. Several of the experts testified that despite
overextension of the spring, according to Stabilus’s

2 Stabilus cites at length the deposition testimony of another of
plaintiff’s experts, John Lauhoff, for the proposition that the
spring harbored no defects. Lauhoff is not a mechanical
engineer, and was not offered by plaintiff as an expert in
product design or manufacturing. Rather, his area of expertise
is workplace safety. He testified as plaintiff’s primary expert
witness against General Motors. In evaluating whether
summary disposition should have been granted on Stabilus’s
behalf, we have considered the evidence in the light most
favorable to plaintiff. Where Lauhoff disagreed with Akhavein
(particularly regarding issues indisputably falling outside of
Lauhoff’s expertise) we have disregarded Lauhoff’s testimony,
as required under basic summary disposition principles.

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Page 9 of 16

design criteria the ball stud should have failed before
the rivet head. Furthermore, the exemplar springs failed
only after being subjected to an enormous amount of
force, far more than could be generated by a worker
raising or lowering a rack’s sidewall.

Despite this [*26] evidence, Stabilus insists that plaintiff
cannot pursue a claim for defective manufacture without
presenting positive proof that the rivet defect was
present when the spring left Stabilus’s control. Again,
we do not accept Stabilus’s interpretation of the
governing law.

A manufacturing defect claim focuses on whether a
product deviated from its intended condition when
placed in the stream of commerce. See Prentis v Yale
Mfg Co, 421 Mich 670, 683; 365 NW2d 176 (1984) (“As
a term of art, ‘defective’ gives little difficulty when
something goes wrong in the manufacturing process
and the product is not in its intended condition. In the
case of a ‘manufacturing defect,’ the product may be
evaluated against the manufacturer’s own production
standards, as manifested by that manufacturer’s other
like products.”). Stabilus contends that no evidence
supports that the spring was defective when it was sold
to JWF, and therefore plaintiff failed to establish a
necessary element of a product liability claim under
MCL 600.2946(2). In relevant part this subsection
provides:

In a product liability action brought against a
manufacturer or seller for harm allegedly caused by
a production defect, the manufacturer or seller is
not liable unless the plaintiff establishes that
the [*27] product was not reasonably safe at the
time the specific unit of the product left the control
of the manufacturer or seller and that, according to
generally accepted production practices at the time
the specific unit of the product left the control of the
manufacturer or seller, a practical and technically
feasible alternative production practice was
available that would have prevented the harm
without significantly impairing the usefulness or
desirability of the product to users and without
creating equal or greater risk of harm to others. . . .

Viewed in the light most favorable to plaintiff, a jury
could reasonably conclude that when the spring left
Stabilus’s control, the rivet head was incapable of
withstanding a foreseeable overextension of the spring.
This evidence supports two reasonable and interrelated
inferences. The first is that the defect was attributable to
Stabilus’s failure to manufacture the rivet head to its
own specifications. Second, Kull’s testimony that the ball

stud was intended to function as a “fuse” supports a
reasonable inference that the rivet head’s failure
occurred because it was not able to withstand a
predictable force.

Plaintiff refers to this claim [*28] variously as one of
“negligent manufacture” or breach of implied warranty.
The two theories of liability are closely related, but not
necessarily identical. See Prentis, 421 Mich at 692 (“We
recognize that the negligence theory generally focuses
on the defendant’s conduct, requiring a showing that it
was unreasonable, while warranty generally focuses
upon the fitness of the product, irrespective of the
defendant’s conduct.”); Lagalo v Allied Corp, 457 Mich
278, 287-288; 577 NW2d 462 (1998) (“The jury may
have concluded that the implied warranty was not
breached, in light of the period during which Mr. Lagalo
could have obtained a second repair in safety; at the
same time, the jury may have been satisfied that the
failure of the product reflected a failure to manufacture
the product in a reasonable manner.”). In this case,
regardless of the name plaintiff attached to the claim,
Michigan law has long established that a manufacturer’s
sale of a defective product is actionable even absent
specific evidence of negligence in the manufacturing
process.

In Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975),
the plaintiff’s vehicle was struck by a car driven by
defendant Fox. Fox claimed that his brake system was
defective; an automobile dealer and General Motors
were added to the suit as third-party defendants. Id. at
405. The third-party [*29] complaint stated claims for
negligence and breach of warranty. Id. at 406. The
circuit court dismissed the claims against the third-party
defendants finding “‘no proof of a manufacturing defect
by the third-party defendant,'” and defendant Fox
appealed a jury verdict holding him liable for the
plaintiff’s injuries. Id. The Supreme Court held that the
circuit court erred by dismissing the third-party
defendants, as circumstantial evidence supported that
the brake system was defective when it left the third-
party defendant’s control. Immediately after the
accident, Fox saw brake fluid on the fender wall, and
discerned that the connection between the master
cylinder and the brake line was loose. Id. at 408. He
later took the car to the dealership, where a general
manager documented that the vehicle “‘became
defective sometime between the delivery date . . . and
the date of the accident.'” Id. at 409. Fox’s testimony,
the Supreme Court determined, supplied evidence of a
brake system malfunction. More specificity was
unnecessary, as “[i]t is within the province of the jury to

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Page 10 of 16

infer the existence of a defective condition from
circumstantial evidence alone; there is no requirement
that the actual defect need be proven.” [*30] Id. at 410.
The Court additionally pointed out:

The Foxes had purchased the car only five weeks
before the accident and there was no evidence that
the brake system had been tampered with prior to
the accident. This evidence is sufficient for a jury to
infer reasonably that the brakes were defective
from the time they left the manufacturer. [Id. at
411.]

The Supreme Court’s opinion in Caldwell preceded the
adoption of the product liability act. But like other panels
of this Court, we find that the act did not change the
fundamental character of a manufacturing defect claim.
In Bouverette v Westinghouse Elec Corp, 245 Mich App
391, 396; 628 NW2d 86 (2001), this Court characterized
the salient issue in an implied warranty case predicated
on a manufacturing defect as follows: “When a products
liability action is premised on a breach of implied
warranty of fitness, the plaintiff must prove that a defect
existed at the time the product left the defendant’s
control, which is normally framed in terms of whether
the product was reasonably fit for its intended,
anticipated or reasonably foreseeable use.” (Quotation
marks and citations omitted.) Similarly, in Kenkel v
Stanley Works, 256 Mich App 548, 558; 665 NW2d 490
(2003), this Court explained that “[a] demonstrable
malfunction is generally clear evidence of a defect . . . .
Additionally, it is within [*31] the province of the jury to
infer the existence of a defective condition from
circumstantial evidence alone . . . .” (Quotation marks
and citation omitted, ellipses in original.)

The circumstantial evidence and expert testimony in this
record create a question of fact regarding whether the
rivet head was reasonably safe when it left Stabilus’s
control. No evidence supports that the rivet head had
been altered or modified between the time it left
Stabilus’s control and the accident. Moreover, the rivet
head was within a sealed steel compartment. “Where a
failure is caused by a defect in a relatively inaccessible
part integral to the structure of the automobile not
generally required to be repaired, replaced or
maintained, it may be reasonable, absent misuse, to
infer that the defect is attributable to the manufacturer.”
Holloway, 403 Mich at 624. Several expert witnesses
testified that the rivet head did not perform as
anticipated based on the fact that it gave way despite
that the spring also disconnected from the ball stud.
Further, the evidence supported a reasonable inference

that the spring’s failure occurred under a load of
substantially less than 1,200 pounds, as at that level of
force, the ball studs [*32] would have deformed. The
circuit court did not err by denying summary disposition
on this ground.

C. MISUSE

Stabilus finally contends that no evidence supports that
the misuse of the spring, likely by GM employees, was
foreseeable to Stabilus. Under the product liability act,
“[a] manufacturer or seller is not liable in a product
liability action for harm caused by misuse of a product
unless the misuse was reasonably foreseeable.
Whether there was misuse of a product and whether
misuse was reasonably foreseeable are legal issues to
be resolved by the court.” MCL 600.2947(2). The circuit
court ruled on this issue as follows:

Although the court’s reference to “the jury” is somewhat
confusing, Stabilus concedes in its brief on appeal that
the circuit court concluded [*33] that the misuse was
foreseeable. According to Stabilus, this was clear error
for two reasons. First, Stabilus contends that the
evidence simply does not support that overextension of
the spring was foreseeable. Second, Stabilus points out,
the circuit court apparently rendered its ruling under the
mistaken belief that plaintiff’s case centered on a design
defect theory.

“Clear error exists when some evidence supports the
circuit court’s finding, but a review of the entire record
leaves this Court with the definite and firm conviction
that the circuit court made a mistake.” Hills & Dales Gen
Hosp v Pantig, 295 Mich App 14, 19; 812 NW2d 793
(2011). We reject Stabilus’s argument that the record is
devoid of evidence of the foreseeability of misuse. Kull’s
testimony supports that Stabilus knew that
overextension of its gas spring could occur, and
anticipated that the ball stud connection would fail
before the rivet head did. Nor has Stabilus explained
why the rivet head’s failure was unforeseeable under
defective manufacturing theory. The circuit court’s ruling

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conformed with the evidence, and renders Stabilus’s
misuse arguments meritless.

III. JWF

The circuit court also denied summary disposition to
defendant JWF, and we granted leave to appeal.
Simpson v Gen [*34] Motors, LLC, unpublished order of
the Court of Appeals, entered March 8, 2018 (Docket
No. 342291). JWF contends that because it did not
design or manufacture the gas spring but merely
supplied it to Keener for incorporation in the rack, it
cannot be held liable for Simpson’s injury. Further, JWF
insists, GM’s misuse of the rack negates any proximate
cause.

Plaintiff contends that it need not prove that JWF was
negligent. The gas spring left JWF with a defective part
inside, plaintiff insists, and JWF placed that defective
part into the stream of commerce. JWF acknowledged
that the misuse of the spring through overextension was
foreseeable. Therefore, plaintiff reasons, JWF also
bears liability for the defectively manufactured spring.

The circuit court denied summary disposition to JWF
based on evidence suggesting that JWF had conducted
a simulation that assisted Gonzalez in the selection of
the specific gas spring incorporated in the rack. This act,
however, does not subject JWF to liability under a
defective manufacturing theory.

MCL 600.2947(6) governs the liability of a
nonmanufacturing seller in a breach of implied warranty
case. This section of the product liability act provides:

In a product liability [*35] action, a seller other than
a manufacturer is not liable for harm allegedly
caused by the product unless either of the following
is true:
(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).]

In Curry v Meijer, Inc, 286 Mich App 586, 592; 780
NW2d 603 (2009), this Court held that in an action
against a nonmanufacturing seller, the plain language of
subsection (a) requires a plaintiff to present evidence of

a failure to “exercise reasonable care.” “While
subsection (a) contains the clause, ‘including breach of
any implied warranty,'” the Court explained, “the
grammatical context and placement of this clause
indicate that the Legislature did not intend to create a
third avenue of liability.” Id. In other words, under this
part of the product liability act, “a breach of implied
warranty claim is a type of, and not separate from, a
breach of reasonable care claim.” Id. at 594.3

Plaintiff presented no evidence that JWF failed to
exercise reasonable care. The essence of [*36]
plaintiff’s claim regarding the spring is that it harbored
an intrinsic fault due to a manufacturing defect traceable
to Stabilus. No evidence supports that JWF supplied an
incorrect spring, or that JWF had reason to know that
the spring was or might be defective. And plaintiff
presented no evidence that JWF negligently participated
in the decision-making process that resulted in the
selection of the particular model of gas spring used in
the GM rack. Even if we were to accept that JWF
conducted the simulation negligently, plaintiff has not
explained how that negligence proximately caused
Simpson’s injury Because this Court’s decision in Curry
controls plaintiff’s claims against JWF, the circuit court
erred in denying JWF’s motion for summary disposition.

IV. KEENER

A. THE PROCEDURAL BACKGROUND

Defendant Keener, the manufacturer and seller of the
completed rack, also sought summary disposition.
Keener filed its motion under MCR 2.116(C)(10),
asserting that no evidence supported a claim against it
premised on theories of either defective design or
defective manufacture. Plaintiff’s response centered on
those arguments. Plaintiff contended that because
Keener was “the ultimate manufacturer,” it could
not [*37] avoid liability for the defective spring “under
the Products Liability Statute or Comstock,” and an
“implied warranty” theory.

At the argument on Keener’s motion, plaintiff’s counsel
stressed that “this is not a design defect case,” but
rather involved “manufacturing defects” and breach of
implied warranty. Counsel added, “no comment was
made about the breach of expressed warranty. There
was an expressed warranty that this would be free of
defect. It follows through to the plaintiff the expressed

3 Plaintiff has not pursued a claim for express warranty against
JWF, and therefore MCL 600.2947(6)(b) is inapplicable.

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Page 12 of 16

warranty that has been given.” Keener’s counsel did not
offer a rejoinder to plaintiff’s express warranty argument.

The circuit court articulated that “nobody showed that
Keener designed or built a defective container.”4
Additionally, the circuit court ruled, the “three-year gap”
between the rack’s manufacture and the accident “is too
great to say that it’s Keener’s problem, so they’re out.”
The court reasoned:

This particular rack was used for three years. And
the testimony by the various witnesses says the
damage to the container was not done by Keener.
That’s pretty important to this Court.

And somewhere I read the Davis [v] Link case it
says:

“Where a mechanical die had been successfully
used [*38] for five years without incident before
injury, the risk of injury was unforeseeable as a
matter of law.”
We had three years here. I think that same logic
applies.

Plaintiff’s counsel reminded the court of the express and
implied warranty claims, and the court responded, “I
don’t care whether it was expressed or implied.
Keener’s motion is granted.”

Keener submitted a proposed order dismissing the case
against it in its entirety. Plaintiff objected to the order,
asserting that Keener’s summary disposition motion had
not addressed the implied and express warranty claims.
Therefore, plaintiff contended, the order should have
dismissed only the claims brought under MCL
600.2946(2). Keener asserted that the order accurately
recapitulated the court’s oral ruling, and that plaintiff’s
motion actually sought reconsideration rather than
correction of the proposed order. And plaintiff never
pleaded claims of implied or express warranty, Keener
claimed.

In response, plaintiff presented several pages of the
second amended complaint invoking implied or express
warranty claims. At the hearing, the court rejected
plaintiff’s arguments, stating, “The Court declares that
it’s [sic] intent was to remove Keener from this [*39]
case in all respects.” Plaintiff has cross-appealed this
ruling.

B. THE SECOND AMENDED COMPLAINT AND
KEENER’S MOTION FOR SUMMARY DISPOSITION

4 The parties also refer to the rack as “the container.”

Plaintiff’s second amended complaint spanned 68 pages
and set forth 353 numbered paragraphs. The first 72
paragraphs fell under the heading “General Allegations.”
The remaining paragraphs described additional claims
against each individual defendant. Relevant here are
the following paragraphs applicable to all defendants:

57. The Defendants breached its [sic] implied
warranty with respect to the container.
58. Upon information and belief, Defendants made
an expressed warranty as to the container.
* * *
67. The Defendants’ [sic] breached its [sic] implied
and/or expressed warranties regarding the frame
and that such was a proximate cause of Plaintiff’s
injuries and damages as heretofore alleged.
* * *
72. Plaintiff sustained injuries and damages which
were a proximate result of:
* * *
e. Defendants’ breach of expressed and implied
warranties.

C. ANALYSIS

Keener’s motion for summary disposition did not
mention plaintiff’s express warranty theory. Nor does the
record reflect that Keener ever filed a motion under
MCR 2.116(C)(8) or seeking a more definite statement
related [*40] to plaintiff’s warranty claims. On appeal,
plaintiff asserts that the circuit court improperly granted
summary disposition of Simpson’s express warranty
claim because Keener’s initial motion for summary
disposition did not address it. Plaintiff is correct.

A complaint must contain “[a] statement of the facts,
without repetition, on which the pleader relies in stating
the cause of action, with the specific allegations
necessary reasonably to inform the adverse party of the
nature of the claims the adverse party is called on to
defend . . . .” MCR 2.111(B)(1). “[T]he primary function
of a pleading in Michigan is to give notice of the nature
of the claim or defense sufficient to permit the opposite
party to take a responsive position.” Stanke v State
Farm Mut Auto Ins Co, 200 Mich App 307, 317; 503
NW2d 758 (1993), citing 1 Martin, Dean & Webster,
Michigan Court Rules Practice, p 186. Our Supreme
Court has characterized MCR 2.111(B)(1) as consistent
with a “notice pleading environment.” Roberts v
Mecosta Co Gen Hosp (After Remand), 470 Mich. 679,
700 n 17, 684 N.W.2d 711 (2004). “[N]otice pleading
and key documents are typically sufficient to survive
summary disposition under MCR 2.116(C)(8),” as the
plaintiff will generally not have all the evidence available

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when filing the complaint. Tomasik v Michigan, 327 Mich
App 660, 667; 935 NW2d 369 (2019). If a party fails to
plead facts with sufficient detail, the court should permit
“the filing of an amended complaint [*41] setting forth
plaintiff’s claims in more specific detail.” Rose v
Wertheimer, 11 Mich App 401, 407; 161 NW2d 406
(1968); see also MCR 2.116(I)(5).

Plaintiff’s second amended complaint adequately set
forth a claim for breach of an express warranty. In three
different places in the complaint, plaintiff invoked an
express warranty theory. While plaintiff’s pleading
regarding this theory was not particularly detailed or
specific, it sufficed to afford Keener with notice that an
express warranty claim would be pursued.

What is required of pleadings in modern times is no
more than reasonable notice of the claims made, in
sufficient detail only that there be no misleading of
either party nor a denial to him of information
necessary to a fair preparation and presentation of
his case. The pleader, in other words, need only
apprize plainly the opposite party of the cause of
action and the claim of plaintiff. [Jean v Hall, 364
Mich 434, 437; 111 NW2d 111 (1961) (quotation
marks and citation omitted).]

Plaintiff’s amended complaint fulfills these requirements.

Accordingly, the circuit court erred by granting summary
disposition of plaintiff’s express warranty claim. MCR
2.116(G)(4) provides that when seeking summary
disposition, the moving party must “specifically identify
the issues as to which the moving party believes there is
no genuine [*42] issue as to any material fact.” MCR
2.116(G)(3) compels the moving party to support its
motion with affidavits, depositions, or admissions, or
other documentary evidence. Only if the moving party
complies with MCR 2.116(G)(3) does the burden shift to
the opposing party to respond. Barnard Mfg Co, Inc v
Gates Performance Engineering, Inc, 285 Mich App
362, 370; 775 NW2d 618 (2009).

Keener failed to present any argument or evidence
supporting that plaintiff’s express warranty claim lacked
legal or factual merit. In an analogous case, Al-Maliki v
LaGrant, 286 Mich App 483, 486; 781 NW2d 853
(2009), we highlighted that due process principles
compel courts to let a party know that an otherwise
unraised issue is on the table for a summary decision. In
that case we noted that “the record clearly reveal[ed]
that plaintiff had no notice that the causation issue
would be raised at the summary disposition motion
hearing and rightly should have been surprised by the

circuit court’s inquiry at the motion hearing regarding
causation.” Id. at 487. We concluded that “the basic
requirements of notice and a meaningful opportunity to
be heard” were unsatisfied, and reversed the grant of
summary disposition. Id. at 488. Here, too defendant’s
summary disposition motion did not challenge one of
plaintiff’s pleaded claims and plaintiff should not have
been required to defend that claim’s validity at the
hearing. MCR 2.116(G)(4) [*43] .

Therefore, we must vacate the circuit court’s order
granting summary disposition of plaintiff’s express
warranty claim, and remand for further proceedings in
this regard. If Keener intends to seek summary
disposition based on an express warranty theory,
Keener must file an appropriate summary disposition
motion under MCR 2.116(C)(10), identifying the legal
issue on which it seeks summary disposition, and the
evidence supporting its argument. To assist the court on
remand, we provide the following guidance regarding
plaintiff’s express warranty claim.

Plaintiff asserts that Keener made an express warranty
regarding the rack, specifically that it was “free from
defect.”5 An express warranty is a representation by a
manufacturer or a seller that a product has certain
characteristics, or meets certain standards. See Curby v
Mastenbrook, 288 Mich 676, 679-680; 286 NW 123
(1939). The product liability act provides that “a seller
other than a manufacturer” may bear liability for harm
caused by a product if “[t]he 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)(b). Assuming without deciding that
Keener did, in fact, expressly warrant [*44] the fitness
and suitability of the rack, the elements of plaintiff’s
claim for breach of the warranty include proximate
causation: that the failure of the product to meet the
express warranty was a proximate cause of plaintiff’s
injuries or damages. See M Civ JI 25.12.6

“Proximate causation involves examining the
foreseeability of consequences and whether a
defendant should be held legally responsible for such
consequences[.]” Jones v Detroit Med Ctr, 490 Mich

5 We take no position regarding whether Keener did, in fact,
make this warranty. If raised by Keener, this is an issue to be
decided by the circuit court.

6 Privity of contract is not a prerequisite to an express warranty
claim. Bouverette, 245 Mich App at 398.

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960; 806 NW2d 304 (2011). An injury is proximately
caused by a breach of an express warranty if it is a
“natural and probable consequence” of the breach,
“which, under the circumstances, an ordinary prudent
person ought reasonably to have foreseen might
probably occur as the result of” the breach. Nielsen v
Henry H Stevens, Inc, 368 Mich 216, 220-221; 118
NW2d 397 (1962). “The question of proximate cause is
generally held to be one for the jury. Any doubts about
the relations between the causes and the effects should
be resolved by the jury. The determination of
remoteness should seldom, if ever, be summarily
determined.” Fiser v Ann Arbor, 417 Mich 461, 475; 339
NW2d 413 (1983) (citations omitted), overruled on other
grounds by Robinson v Detroit, 462 Mich 439, 613
NW2d 307 (2000). “Proximate cause is a question for
the jury to decide unless reasonable minds could not
differ regarding the issue.” Lockridge v Oakwood Hosp,
285 Mich App 678, 684; 777 NW2d 511 (2009). “There
may be more than one proximate cause of an injury.”
Allen v Owens-Corning Fiberglas Corp, 225 Mich App
397, 401; 571 NW2d 530 (1997).

In its [*45] summary disposition ruling, the circuit court
conflated the foreseeability component of proximate
cause with the discussion of foreseeability in Davis v
Link, 195 Mich App 70; 489 NW2d 103 (1992). Davis
was a negligence case and involved duty, not proximate
cause. “Duty is essentially a question of whether the
relationship between the actor and the injured person
gives rise to any legal obligation on the actor’s part for
the benefit of the injured person. Proximate cause
encompasses a number of distinct problems including
the limits of liability for foreseeable consequences.”
Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d
759 (1977).

The plaintiff in Davis was a punch press operator
employed at the Whirlpool Corporation and was injured
when her hand was caught in the press’s pinch point.
She brought a product liability claim against the
manufacturer of the die used in the press, alleging a
failure to design and manufacture the die with sufficient
pinch point guarding. Davis, 195 Mich App at 71. “There
[was] no allegation that the die itself was defectively
designed or manufactured.” Id.

This Court affirmed a grant of summary disposition
premised on duty, and not proximate cause. Citing
Fredericks v Gen Motors Corp, 411 Mich 712, 720; 311
NW2d 725 (1981), we held: “The supplier of a die set to
a component manufacturer does not have a duty to
place guards on the die set or warn the [*46]

component manufacturer of hazards attendant in its
use.” Davis, 195 Mich App at 72. The plaintiff argued
that despite Fredericks, her employer had a statutory
duty to maintain workplace safety, and that the die
manufacturer should have known that the die would be
used in an unsafe manner. We rejected that argument
because the plaintiff “failed to present evidence of the
manufacturer’s knowledge of unsafe use, and no
evidence was presented that unsafe use was
foreseeable.” Id. Furthermore, “the evidence revealed
that the die had been successfully used in the press for
four or five years without incident before plaintiff’s
injury.” Id. Based on these facts, we held that the
plaintiff had not established the duty element of a prima
facie case. Id. at 73.

Assuming that an express warranty exists here, duty will
not constitute a contested element of plaintiff’s prima
facie case. “The primary questions in express warranty
claims are whether the communication is a warranty,
whether its scope covered the characteristic that caused
injury, whether it was breached, whether the plaintiff
relied, and what harm resulted because the warranty
was breached.” 2 Dobbs, Hayden & Bublick, Torts (2d
ed), § 452, pp 904-905. Dobbs continues, “The [*47]
fact that the product is not defectively designed or
manufactured is irrelevant; the ‘defect’ at issue is its
failure to meet the standards expressed in the warranty
or representation itself.” Id. at 905. See also Moning,
400 Mich at 439 (“It is well established that placing a
product on the market creates the requisite relationship
between a manufacturer, wholesaler and retailer and
persons affected by use of the product giving rise to a
legal obligation or duty to the persons so affected.”).

Foreseeability comes into play in the sense that plaintiff
must establish at trial that Keener’s breach of its
warranty was a proximate cause of Trask Simpson’s
injury. See MCL 600.2947(6)(b) (“[T]he failure to
conform to the warranty was a proximate cause of the
person’s harm.”). Foreseeability is one aspect of
proximate cause, including whether Simpson was
“within the foreseeable scope of the risk” created by a
breached warranty. See Moning, 400 Mich at 439. And it
has long been the law in this state that “[a] plaintiff need
not establish that the mechanism of injury was
foreseeable or anticipated in specific detail. It is only
necessary that the evidence establishes that some
injury to the defendant was foreseeable or to be
anticipated.” Schultz v Consumers Power Co, 443 Mich

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445, 452-453 n 7; 506 NW2d 175 (1993).7 If on remand
Keener brings [*48] a summary disposition motion
based on express warranty, we instruct the circuit court
to consider these legal precepts.

V. PLAINTIFF’S CROSS-APPEAL

By way of reminder, JWF supplied the Stabilus springs
used in the rack that ended up at Dort. Plaintiff claims
that JWF used a software analysis program to
determine which gas springs should be incorporated in
the rack, as well as the number of springs, their
mounting locations, and their fastening mechanisms.
The evidence supports that Stabilus manufactured the
springs used in the GM racks to JWF’s specifications.
Gonzalez’s design of the rack contemplated that each
sidewall would be raised with one Stabilus spring.

According to the deposition testimony of Dominick
DiPilla, JWF’s president and owner, JWF functioned like
a “hardware store” with regard to the GM racks,
supplying “off the shelf” springs identified by the
customer. In a motion for summary disposition JWF
averred that it was merely a distributor of the gas spring,
and did not manufacture or design the rack. Plaintiff
countered with evidence suggesting that JWF played a
far more active role in the rack’s design.

Shortly before a scheduled trial date, defendant JWF
served plaintiff [*49] with documents that it
characterized as supplemental discovery. Within those
documents was an email authored by Ralph Burns, a
JWF salesman, responding to an email sent by Tom
Clos, an employee of Gonzalez. Clos asked Burns to
address “item 9,” which apparently was a question
posed in an email sent by a GM employee. In any case,
Burns replied, “By respond, so you mean . . . . [sic]

7 If the court determines that an express warranty exists, it
must then consider whether Keener breached the express
warranty, and whether the breach was a proximate cause of
plaintiff’s injuries and damages. We note that some evidence
of record supports that overextension of the rack’s sidewalls
was foreseeable. For example, Mattice testified that the rack’s
design features “may lead to a possible overextension of the
gas spring when the sidewall is lifted, put in a vertical
position,” and that “pushing the sidewall outward could
possibly overextend” the spring, “elongat[ing]” it. Whether this
evidence and similar testimony suffices to establish that
Simpson’s injury was a foreseeable consequence of Keener’s
breach of an express warranty is a question for the circuit
court. We note that without further elaboration by the circuit
court, the length of time that the rack was used, standing
alone, does not render Simpson’s injury unforeseeable under
a breach of warranty theory.

remind them that I recommended using two gas
springs?”

Soon after JWF produced this email and at a hearing
conducted on another subject, counsel for Simpson
vigorously contended that the email should be
considered inadmissible due to its delayed disclosure.
The circuit court permitted the parties time to respond in
writing. Before the next hearing, counsel filed a notice
indicating that plaintiff would seek a “default” based on
JWF’s belated production of the email. At the hearing,
however, Simpson’s counsel conceded that a default
“would be too serious.” The court indicated that it would
not enter a default. On appeal, plaintiff asserts that the
circuit court erred by refusing to enter a default or other
sanction against JWF arising from its “withholding” of
evidence.

We agree with plaintiff that the email [*50] fell within the
scope of plaintiff’s earlier discovery requests, and
should have been produced. Nevertheless, we discern
no basis to sanction JWF for this omission with the entry
of a default.

A multitude of engineering experts were consulted by
the parties. And the parties’ interests were markedly
adverse to each other. For example, GM’s expert
supplied testimony inculpating Stabilus; other defense
experts pointed the proverbial finger at GM. None of the
engineers opined that the rack was defectively
designed, or that two springs should have been used. In
other words, none of the testimony inculpated JWF. This
omission is particularly notable because an initial
concept drawing produced by GM did depict a rack with
two springs on each sidewall. The two-spring theory
was neither concealed nor impossible to develop even
absent the Burns email. And at this point, the question
borders on being moot, as we have held that JWF must
be dismissed as a party to this lawsuit.

Given the expert testimony, we question whether the
Burns email is relevant on remand. We leave this
determination to the circuit court.

VI. SUMMARY

We affirm the circuit court’s orders denying summary
disposition to Stabilus [*51] and denying plaintiff’s
motion for sanctions against JWF. We reverse the
circuit court’s order granting summary disposition to
Keener. Plaintiff may proceed against Keener on an
express warranty theory; the circuit court in its discretion
may entertain a motion for summary disposition
regarding this claim. We reverse the circuit court’s order

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Page 16 of 16

denying summary disposition to JWF. We award no
costs to any party, and remand for further proceedings
consistent with this opinion. We do not retain
jurisdiction.

/s/ Michael J. Kelly

/s/ Jane E. Markey

/s/ Elizabeth L. Gleicher

End of Document

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Week 3 Activity: Product Liability Law Case Summary

Overview – In this activity you are to review the product liability lawsuit case given
below and create a brief that summarizes its legal elements and holding.
See the Professor example in the Announcements, dated January 15, and in the discussion threads and try to follow this same format.

Instructions – Read

Estate of Simpson v. GM, LLC

Using the

Week 3 Activity Template

[DOCX], accurately summarize the following regarding design, manufacturing, and failure-to-warn causes of action in a brief that effectively lays out the following legal elements of the case:

· Case facts.

· Parties and their arguments.

· Proceedings of the court case – what happened in the court(s)?

· Applicable product liability defect law

· The holding of the court and its reason(s).

LEG500 – Format for
writing assignments:

· Include page numbers

· 1-inch margins, double spaced throughout assignment

· Times New Roman, 12-point type

· Title Page centered, first page should include:
Assignment name, your name, professor name and date

· Cite credible, scholarly sources in the text of the paper that corresponds to the sources on the Source page. Type “Sources” centered on the last page of the assignment. Record sources that you used in the assignment in a numbered list as they appear in the paper, not alphabetically.

· For each resource you use in your coursework, there are two things you must do. First, add the resource to the Source list on the final page/slide. Second, insert an in-text citation to each sentence which quotes, paraphrases, or summarizes information from that resource. Make sure that each in-text citation has a matching source list entry, and vice versa, before submitting an assignment. See the video:

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