Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  June 1, 2018                                                                        Stephen J. Markman,
                                                                                                Chief Justice

  156475 & (81)                                                                            Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
  KIRK SCOTT PEDERSEN,                                                                    Kurtis T. Wilder
           Plaintiff-Appellee,                                                      Elizabeth T. Clement,
                                                                                                     Justices
  v                                                        SC: 156475
                                                           COA: 328855
                                                           Wayne CC: 11-012843-NO
  MEIJER STORES, INC.,
            Defendant-Appellant,
  and
  MACTEC, INC., MACTEC ENGINEERING &
  CONSULTING, INC., AMEC E&I, INC., AMEC
  E&I HOLDINGS, INC., AMEC ENVIRONMENT
  & INFRASTRUCTURE, INC., JARDER
  OUTDOOR NINGBO COMPANY, LTD.,
  NINGBO TEXTILES IMPORT & EXPORT
  CORPORATION, NINGBO TEXTILES, HAIJIN
  METAL PRODUCTS, LTD., QIAN JUN,
  SINOCHEM GROUP, SINOCHEM
  CORPORATION, SINOCHEM, SINOCHEM
  NINGBO COMPANY, LTD., and SINOCHEM
  INTERNATIONAL,
            Defendants.

  _________________________________________/

         On order of the Court, the motion for leave to file brief amicus curiae is
  GRANTED. The application for leave to appeal the August 3, 2017 judgment of the
  Court of Appeals is considered, and it is DENIED, because we are not persuaded that the
  questions presented should be reviewed by this Court.

         MARKMAN, C.J. (dissenting).

           I respectfully dissent from the order denying leave to appeal and instead would
  vacate the Court of Appeals’ analysis regarding causation and remand to the trial court so
  that it can address this issue in the first instance.

          This products-liability action arises out of injuries sustained by plaintiff when his
  hunting tree stand collapsed, resulting in an approximately 18- to 20-foot fall. Plaintiff
  alleged that he had purchased the tree stand from defendant and that, being on clearance
  sale, it did not come with its original packaging, instruction manual, or on-product
  warning label. The missing instruction manual warned against leaving the tree stand up
  for more than one season because it could place stress on the brackets and chain securing
                                                                                              2

the stand. Plaintiff also testified that he left the stand up for at least one year prior to the
hunting season during which he was injured and that he was not aware the stand could
fail if he left it up for that period of time. His complaint alleged that a bracket on the
stand apparently became bent, “allowing the chain to become dislodged and the tree stand
to separate from the tree and fall to the ground.” Among other things, plaintiff alleged
that defendant owed him a duty to exercise reasonable care and that defendant had made
an express warranty concerning the product under MCL 600.2947(6), which provides as
follows:

              (6) 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:

             (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.

        Defendant moved for summary disposition under MCR 2.116(C)(10), which
motion the trial court denied in part and granted in part. As to MCL 600.2947(6)(b), the
court granted summary disposition in defendant’s favor, but as to MCL 600.2947(6)(a),
the court held that “there exists a genuine issue of material fact on [defendant’s] alleged
failure to exercise reasonable care, limited to the assertion that the tree stand did not
come with instructions or an on-product warning label.” Although the trial court
specifically addressed MCL 600.2947(6)(b) and the “reasonable care” part of MCL
600.2947(6)(a), it never addressed the causation part of the latter, which requires that a
seller’s failure to exercise reasonable care must be “a proximate cause of the person’s
injuries.”

        Defendant appealed, arguing that it was entitled to summary disposition under
MCL 600.2947(6)(a) because plaintiff could not establish causation. However, the Court
of Appeals rejected this argument, holding that a “question of fact exists with respect to
whether [defendant’s] failure to include product materials and on-product warning labels
with the sale of the product was a proximate cause of plaintiff’s injuries.” To reach this
conclusion, the court relied on the following evidence: (1) plaintiff’s testimony that he
was a “safety-conscious” individual; (2) his testimony that had the warning label been
“right in front of [him], [he] would have read it”; (3) his testimony that he would not have
left the tree stand up for more than one season had he known that it could fail if it were
left up for more than a season; and (4) testimony that the tree stand was missing the on-
product label, which contained “the manufacturer[’]s name, the year the stand was
manufactured, the manufacturer’s address, and the model number, as well as a . . . safety
warning.”
                                                                                                                3


        These reasons are insufficient, in my judgment, to demonstrate the existence of a
genuine issue of material fact regarding causation. First, although plaintiff testified that
he was “safety conscious,” he acknowledged that he would not have read the instruction
manual even if the tree stand had come with one. Second, although plaintiff testified that
he would have read the on-product warning label if it “were right in front of [him],” the
label that was missing from the product did not contain a warning about leaving the tree
stand up for more than one season. Rather, the safety warning on the label merely
warned against exceeding the weight limit of 300 pounds and advised users to wear the
fall-arrest system while using the product. The instruction manual was the only missing
source of information that contained the warning about leaving the tree stand up for more
than one season, a document that plaintiff specifically acknowledged he would not have
read. As a result, it does not appear that the presence of either an on-product warning
label or an instruction manual would have prevented plaintiff from leaving the tree stand
up for more than one year. Therefore, I would vacate this part of the judgment of the
Court of Appeals.

        Although I believe the Court of Appeals’ causation analysis was flawed, the trial
court itself never specifically addressed the causation issue. Although defendant raised
the issue, it was not the focus of the parties’ arguments in the trial court. Furthermore,
the arguments in this regard were poorly developed, and the Court of Appeals focused
only on a single aspect of plaintiff’s claim: the missing on-product warning label as it
related to leaving the tree stand up for more than one season. In my view, it would be
beneficial for the trial court to fully address the causation issue. Therefore, in addition to
vacating the causation analysis of the Court of Appeals, I would remand to the trial court
for an initial ruling on this issue.

       ZAHRA and WILDER, JJ., join the statement of MARKMAN, C.J.




                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          June 1, 2018
       p0529
                                                                              Clerk
