                                     File Name: 09a0318n.06
                                        Filed: May 4, 2009

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                           No. 08-1854

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

JASON DREYER,

          Plaintiff-Appellant,

v.                                                         ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
EXEL INDUSTRIES, S.A.; KREMLIN-                            COURT FOR THE EASTERN
REXSON, S.A.; EXEL NORTH AMERICA,                          DISTRICT OF MICHIGAN
INC.; EXEL INDUSTRIES, INC.; KREMLIN,
INC.,

          Defendants-Appellees.


                                                      /

Before:          MARTIN, SUHRHEINRICH, GIBBONS; Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Under Michigan law, is the manufacturer or

distributor of a paint sprayer liable for a user’s burn injuries where the solvent used to clean the

sprayer ignited? We hold that neither is liable and thus affirm the district court’s grant of summary

judgment in their favor, although under slightly different reasoning.

                                                 I.

          The plaintiff, Jason Dreyer, a maintenance employee for Oakland County Schools, was

assigned to paint over a hundred file cabinets with a paint sprayer. The paint sprayer was owned by
No. 08-1854
Dreyer v. Exel Industries, S.A.
Page 2

Oakland Schools and had been manufactured by one of the defendants, Kremlin-Rexson SA1 in

Stains, France. The sprayer came with a pair of instruction manuals entitled, “Manual Electrostatic

Gun” and “Electrostatic Power Supply,” written by Kremlin-Rexson. The sprayer consists of a spray

gun and a power supply box. The sprayer takes paint from a can, draws it through a hose to a spray

gun, and then discharges the paint into very fine particles which are given a positive electric charge

as they pass from the nozzle of the gun.

        The French manufacturer sold the paint sprayer to a distributor in the United States, Exel

North America, Inc., a co-defendant, through its predecessor company, Kremlin, Inc., also a co-

defendant. Exel North America, Inc. sold the sprayer to a retailer SprayMax, and Oakland Schools

bought it from there in 1999. SprayMax trained one of Oakland Schools’ maintenance employees

to use the sprayer and that employee trained Dreyer.

        For some time, Dreyer had been having problems with the paint sprayer clogging or

“gumming up.” Following one of the sprayer’s manual’s instructions to “consult immediately your

local authorized KREMLIN distributor” with repair questions, Dreyer telephoned a Kremlin

technician in Chicago. According to Dreyer, the technician told him to use methyl ethyl ketone

(“MEK”), a solvent, to clean the sprayer and thin paint. Dreyer also says he sent the paint sprayer

to the distributor for repair.

        After this conversation (and presumably once Kremlin returned the paint sprayer), Dreyer

began painting the file cabinets. He painted in a basement room of the Oakland Schools building



1
       According to Kremlin-Rexson SA, its co-defendant, Exel Industries SA, is merely a
holding company.
No. 08-1854
Dreyer v. Exel Industries, S.A.
Page 3

known as the “bunker”—a concrete room approximately fifty feet long and twenty feet wide. An

opening in an exterior wall opens to the outside and is fitted with adjustable louvers that can be

opened or closed to provide the bunker with ventilation. Dreyer powered the paint sprayer by

plugging it, along with the electric cord from an air compressor (used to clean the paint sprayer) into

the outlets of a power strip that was plugged into a wall receptacle. The power strip had an electric

switch that could be flipped “on” or “off” to provide power to all of the outlets in the strip.

       On April 14, 2003, upon reaching the end of his shift, Dreyer completed his painting for the

day, turned off the two power switches on the sprayer’s supply box, and flushed out the hoses with

MEK manufactured by Sherwin-Williams. After he finished cleaning the sprayer, Dreyer closed the

louvers in the wall opening and unplugged an electric box fan located in front of the louvers. He also

plugged in a radio and put it in the wall opening for better reception to hear a broadcast of a hockey

play-off game. The doors from the bunker to the hallway remained open. Dreyer then removed his

flame retardant coveralls and his respirator and flipped the electric switch on the power strip to the

“off” position with his foot. Dreyer said that a spark was created at his foot when the switch flipped,

resulting in a fire explosion. Dreyer’s shoes and pants caught fire and he was severely burned.

       The instruction manuals accompanying the paint sprayer provided a list of warnings, which

Dreyer had read. Among them was the following:


       Spraying, cleaning, and servicing must be made in a ventilated areas so that
       solvent vapors are properly drained

       Cleaning and flushing of the electrostatic coating system must be carried out in
       a ventilated area
       ...
No. 08-1854
Dreyer v. Exel Industries, S.A.
Page 4

       Storage of paint and solvent drums near or inside the spraying area is prohibited.
       Keep all fluid containers properly closed in a non-hazardous area

       Use cleaning solvents with the lowest flash point — If possible, higher than
       ambient temperature.

       STD 9 power supply unit must be installed in a non-hazardous area. Moreover,
       it must be located 4 meters (13 ft) at least away from any flammable vapor
       emissions

       The ON/OFF on the power supply gun must be OFF before starting cleaning
       operation

       The MEK that Dreyer used to clean the sprayer on the night of the explosion,

manufactured by Sherwin-Williams, came with the following warning on its label:


       DANGER! EXTREMELY FLAMMABLE—VAPORS CAN CAUSE FLASH
       FIRES! HARMFUL IF INHALED—MAY AFFECT THE BRAIN OR
       NERVOUS SYSTEM, CAUSING DIZZINESS, HEADACHE OR NAUSEA.
       IRRITATES EYES, SKIN AND RESPIRATORY TRACT.

       ...

       Contents are EXTREMELY FLAMMABLE. Keep away from heat, sparks,
       and open flame. Vapors will accumulate readily and may ignite explosively.
       During use and until all vapors are gone: Keep area ventilated - Do not smoke -
       Extinguish all flames, pilot lights and heater—Turn off stoves, electric tools
       and appliances, and any other source of ignition.

       The local fire marshal, Frederick Arnold, responded to the fire. He reported that there were

at least six five-gallon cans of MEK and some smaller cans in the bunker when he arrived. In

Arnold’s opinion, the fire occurred when Dreyer turned off the power strip and a spark ignited the

MEK vapors. The Oakland Schools’ insurer also created a report regarding the fire. Its investigator,
No. 08-1854
Dreyer v. Exel Industries, S.A.
Page 5

Al Wehrli, concluded that the fire originated at the power strip from a spark when it was turned off

or when its plug was removed from the wall and ignited the fumes in the painting area.

       Dreyer sued the paint sprayer’s manufacturer (Kremlin-Rexson SA, partially owned by the

co-defendant Exel Industries, SA) and its distributor (Exel North America, Inc, the successor

company to the co-defendants Exel Industries, Inc. and Kremlin, Inc.) claiming negligence and

breach of warranty. The manufacturer and distributor, represented by different counsel, separately

moved for summary judgment. The district court heard argument on the motions and considered the

record before it, including reports from the fire marshal and insurance investigator, as well as

Dreyer’s proposed expert report by Dr. Nathan Dorris. Dorris, an “expert in warnings and human

factors,” concluded that the warnings on the sprayer were unreasonable and inadequate to alert the

paint sprayer’s user to the potential for fire and explosion associated with misuse of the sprayer. The

district court granted summary judgment in favor of the defendants. Dreyer appeals.

                                                  II.

       We review a district court’s grant of summary judgment de novo. Sigler v. Am. Honda

Motor Co., 532 F.3d 469, 482 (6th Cir. 2008).

                                                  III.

               A. Michigan law does not impose on a manufacturer a duty to warn
                  of dangers associated with another manufacturer’s products

       Dreyer did not sue the MEK manufacturer, Sherwin-Williams, or the unknown manufacturer

of the power strip. Rather, he sued the manufacturer and distributor (but not the retailer) of the paint

sprayer. We first consider his claim that the manufacturer is liable because it failed to provide
No. 08-1854
Dreyer v. Exel Industries, S.A.
Page 6

adequate warnings of the dangers associated with MEK.

         A failure to warn claim requires a plaintiff to prove: “(1) the defendant owed a duty to the

plaintiff; (2) the defendant breached that duty; (3) the defendant’s breach was a proximate cause of

the plaintiff’s injuries; and (4) the plaintiff suffered damages.” Croskey v. BMW of N. Am., 532 F.3d

511, 516 n.2 (6th Cir. 2008) (citing Gregory v. Cincinnati Inc., 538 N.W.2d 325, 329 (Mich. 1995)).

“Under Michigan law, the manufacturer of a product has a duty to warn of danger associated with

the intended uses or reasonably foreseeable misuses of its product.” Allen v. Owens-Corning

Fiberglas Corp., 571 N.W.2d 530, 535 (Mich. Ct. App. 1997). Whether a manufacturer owes a duty

to a particular person is a legal question for the court, Pettis v. Nalco Chem. Co., 388 N.W.2d 343,

348 (Mich. Ct. App. 1986), and depends on whether the plaintiff’s use of the product and the injury

that resulted were foreseeable, Thomas v. Int’l Harvester Co., 225 N.W.2d 175, 177 (Mich. Ct. App.

1974).

         Dreyer contends that Michigan imposes liability on a manufacturer who fails to warn of

dangers associated from the foreseeable use of its product, where the danger results from the

combination of its product and a product manufactured by another. In other words, he argues that

a duty to warn exists whenever it is “foreseeable” that a product’s intended use (or foreseeable

misuses) will expose users to risks created by the product of another—in this case Sherwin-

Williams’s MEK. Not surprisingly, the manufacturer disagrees and argues that in Michigan, a

manufacturer’s duty to warn is limited to the manufacturer’s own products.

         Arguably, the MEK ignition could be considered a “danger associated with” the paint sprayer

because it was foreseeable to the manufacturer that a user would employ MEK to clean the sprayer.
No. 08-1854
Dreyer v. Exel Industries, S.A.
Page 7

As Dreyer points out, a representative from the manufacturer testified that MEK was an appropriate

cleaning solvent. And, according to Dreyer, a Kremlin distributor suggested he use MEK. But our

review of Michigan caselaw, as well as cases arising in other jurisdictions, indicates that courts have

not extended manufacturer liability to products manufactured by another, even when used in

combination, unless the manufacturer’s own product creates the risk of harm.

       The closest Michigan case is Brown v. Drake-Willock Int’l, Ltd. There, the Michigan Court

of Appeals rejected a dialysis technician’s failure to warn claim against the manufacturer of a

dialysis machine following her injuries resulting from exposure to formaldehyde that she used to

clean it. 530 N.W.2d 510, 515 (Mich. Ct. App. 1995). The defendant manufacturer argued that it

had no duty to warn of the dangers associated with formaldehyde because it neither manufactured

nor supplied the chemical. The plaintiff pointed out that the manufacturer had recommended

formaldehyde to clean its machines and anticipated that it would be used in connection with its

product. The Brown court rejected the argument, holding that “the law does not impose upon

manufacturers a duty to warn of the hazards of using products manufactured by someone else.” Id.

at 515. The court noted that “formaldehyde [was] not related directly to the safe operation of

defendants’ dialysis machines,” and that “plaintiff did not allege that the dialysis machines

themselves were dangerous or defective.” Id. at 514.

       Earlier Michigan cases also declined to extend manufacturer liability for injuries sustained

by products manufactured by someone else, even when the defendant’s product was tangentially

involved in the injury. For example, in Spaulding v. Lesco International Corp., 451 N.W.2d 603,

604, 606 (Mich. Ct. App. 1990), the court held that Sears, Roebuck and Company, which had written
No. 08-1854
Dreyer v. Exel Industries, S.A.
Page 8

a manual on how to install above-ground pools, did not owe a duty to warn of the dangers associated

with doing a “deep dive into a four-foot-deep above-ground pool from the platform on top of the

pool’s ladder.” Id. (observing that “Sears had no duty to warn of the alleged dangers of another’s

product”).

       Dreyer identifies the “primary error” by the district court as its failure “to recognize that the

paint sprayer requires the use of solvents, ventilation, and power to operate, and that the manual

which includes warnings and instructions that reference solvents, ventilation, and power are part of

the product.” But even when it is foreseeable that a product will be used in combination with

another, courts in Michigan and in other jurisdictions have declined to impose liability on a

manufacturer for the product it did not manufacture. See, e.g., Brown, 530 N.W.2d at 515;

Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 496 (6th Cir. 2005) (holding that a pump

manufacturer “cannot be held responsible for the asbestos contained in another product” used in

connection with the pump).2

       In this case, the paint sprayer’s manufacturer did not manufacture or supply the power strip



2

       See also Taylor v. Elliott Turbomachinery Co., Inc., 90 Cal. Rptr. 3d 414, 425 (Ct. App.
2009) (manufacturers of pieces of equipment used in navy aircraft carriers, some of which included
asbestos-containing parts manufactured by third party, had no duty to warn of dangers inherent in
asbestos-containing materials); Simonetta v. Viad Corp., 197 P.3d 127, 134 (Wash. 2008) (en banc)
(manufacturer did not have a duty to warn of danger posed by asbestos insulation that it did not
manufacture, sell or supply, even though the evaporator it manufactured was built with the
knowledge that insulation was required for proper operation); Clearly v. Reliance Fuel Oil Assocs.,
17 A.D.3d 503 (App. Div. 2005) (manufacturer of water heater had no duty to warn of dangers of
misplacing a temperature control device it did not manufacture in its product). But see Ilosky v.
Michelin Tire Corp., 307 S.E.2d 603, 610 (W.Va. 1983) (manufacturer of radial tires had duty to
warn of hazard crated by mixing radial tires and conventional tires).
No. 08-1854
Dreyer v. Exel Industries, S.A.
Page 9

or the MEK that were involved in the explosion. Like the formaldehyde in Brown, MEK was not

“related directly” to the safe operation of the paint sprayer. Instead of distinguishing Brown, Dreyer

argues that the paint sprayer itself was defective because it tended to clog and the clogging caused

him to use MEK instead of a weaker paint thinner—resulting in his injuries. This argument does not

support Dreyer’s negligence claim against the sprayer’s manufacturer because although the sprayer

may have had a clogging defect, that defect was not the “danger” that caused Dreyer’s

injuries—rather it was the ignition of MEK vapors in an inadequately ventilated room.

       We conclude that Michigan courts would be unwilling to impose a duty on the paint sprayer

manufacturer to warn of the dangers of a fire resulting from the combination of MEK vapors and a

power strip spark. Although the district court granted summary judgment on the ground that Dreyer

failed to establish that the paint sprayer was the proximate cause of his injuries, we do not reach the

causation question because we conclude that, under Michigan law, the manufacturer was under no

duty to warn of the dangers that caused Dreyer’s injuries. Thus, any inadequacies in the warnings

related to the dangers of MEK contained in the paint sprayer’s user manual do not render the paint

sprayer defective. We affirm the grant of summary judgment in the manufacturer’s favor.

                    B. The distributor did not breach an implied warranty or
                       neglect a duty to warn of dangers associated with a
                                product manufactured by another

       Dreyer also sued the paint sprayer’s United States distributor, alleging that it breached an

implied warranty and was negligent in failing to warn him of the dangers associated with MEK.
No. 08-1854
Dreyer v. Exel Industries, S.A.
Page 10

        Under Michigan law, a plaintiff was traditionally not required to prove a non-manufacturing

seller’s negligence to recover for breach of warranty.3 See Croskey at 520. But in 1996, the

Michigan legislature enacted a statutory revision to its tort law that limits a non-manufacturing

seller’s liability to instances where “[t]he seller failed to exercise reasonable care, including breach

of any implied warranty, with respect to the product and that failure was a proximate cause of the

person’s injuries.” Id. (quoting Mich. Comp. Laws. § 600.2947(6)(a)). This Court has interpreted

that revision to indicate “that the legislature did not intend failure to exercise reasonable care and

breach of implied warranty to be separate products liability claims.” Id. Thus, the statute “added

an element of fault to the traditional breach of implied warranty,” id., and so “the plaintiff must show

that the product was sold in a defective condition, the defect caused his injury, and the seller failed

to exercise reasonable care.” Id.

        As explained above, we conclude that the paint sprayer was not defective due to inadequate

warnings regarding the dangers of MEK because the manufacturer did not owe a duty to issue those

warnings. Consequently, Dreyer cannot show that “the product was sold in a defective condition,”

see id., and the paint sprayer’s distributor therefore is not liable for a breach of an implied warranty.4

See Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 181-82 (Mich. 1984) (observing that “whether a suit

3

       We assume without deciding that a distributor, who is not the ultimate seller, falls within the
scope of Mich. Comp. Law. § 600.2947's definition of “seller.”
4

       Dreyer argues that the corporate relationship between the manufacturer and the distributor
was so close that they should be held jointly and severally liable. Because we conclude that the
manufacturer was not under a duty to warn, this argument is irrelevant. It is unnecessary for us to
consider whether the distributor might be liable for the negligence of the manufacturer or vice versa
under the “pierce the corporate veil” theory Dreyer presents.
No. 08-1854
Dreyer v. Exel Industries, S.A.
Page 11

is based upon negligence or implied warranty, we require the plaintiff to prove that the product itself

is actionable—that something is wrong with it that makes it dangerous”).

       Finally, Dreyer argues that, because the paint sprayer’s distributor recommended that he use

MEK to clean the sprayer, it was negligent in failing to provide adequate warnings on the safe use

of MEK. There are a few problems with such a claim. First, Dreyer offers no support for the

proposition that a non-manufacturing seller is under a duty to warn of dangers associated with a

product manufactured by another. Second, in Croskey, this Court rejected a reading of Mich. Comp.

Law § 600.2947(6)(a) that would recognize a seller negligence claim that stands alone from an

breach of implied warranty claim. 532 F.3d at 520 (“[T]he legislature did not intend failure to

exercise reasonable care and breach of implied warranty to be separate products liability claims.”).

Finally, and perhaps most importantly, as we know from Brown, where the manufacturer

recommended the use of formaldehyde to clean its dialysis machine, under Michigan law, a

“recommendation” to use a product manufactured by another does not create a duty to warn of the

dangers associated with that product. 530 N.W.2d at 514-15. We have no reason to believe that

Michigan courts would countenance such a result.

                                                     IV.

               We AFFIRM.
