           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    Swix, et al. v. Daisy Mfg. Co.             No. 02-2154
        ELECTRONIC CITATION: 2004 FED App. 0192P (6th Cir.)
                    File Name: 04a0192p.06                                                    _________________
                                                                                                   COUNSEL
UNITED STATES COURT OF APPEALS
                                                                           ARGUED: Clark Shanahan, SHANAHAN & HOY,
                  FOR THE SIXTH CIRCUIT                                    Owosso, Michigan, for Appellants. Jack O. Kalmink,
                    _________________                                      CLARK HILL PLC, Detroit, Michigan, for Appellee.
                                                                           ON BRIEF: Clark Shanahan, SHANAHAN & HOY,
 RANDY SWIX , PAMELA SWIX , X                                              Owosso, Michigan, for Appellants. Jack O. Kalmink, Paul
 Co-Conservators of the Estate -                                           C. Smith, CLARK HILL PLC, Detroit, Michigan, for
                                     -                                     Appellee.
 of Aaron Ray Swix,
                                     -  No. 02-2154
           Plaintiffs-Appellants, -                                                           _________________
                                      >
                                     ,                                                            OPINION
             v.                      -                                                        _________________
                                     -
 DAISY MANUFACTURING CO ., -                                                  RICHARD D. CUDAHY, Circuit Judge. Your mother
 INC.,                               -                                     refused to buy you a BB gun, warning that “you’ll shoot your
            Defendant-Appellee. -                                          eye out.” Apparently she was right to be concerned. Based
                                     -                                     on the facts of this case and a review of other cases on the
                                    N                                      topic, it seems that BBs are attracted to children’s eyes as
        Appeal from the United States District Court                       politicians are attracted to television cameras. After losing
       for the Eastern District of Michigan at Detroit.                    the use of one eye, Aaron Swix together with his parents
     No. 02-70152—George E. Woods, District Judge.                         brought this products liability action against Daisy, the
                                                                           manufacturer of the air rifle which was used to shoot him,
                    Argued: March 11, 2004                                 alleging that the air rifle was defectively designed. The
                                                                           district court dismissed Swix’s complaint. This appeal
               Decided and Filed: June 23, 2004                            followed.

Before: MARTIN, CLAY, and CUDAHY,* Circuit Judges.                                                       I
                                                                             In May of 1999, Albert Carl Porrit purchased a Daisy
                                                                           Powerline 856 air rifle for his minor grandson, Nicholas
                                                                           Porritt. The air rifle was kept in a locked gun cabinet. On
                                                                           April 20, 2000, Nicholas, then age eleven, removed the
                                                                           loaded air rifle from the gun cabinet without permission.
                                                                           According to his affidavit, Nicholas took the safety lock off
    *
     The Honorab le Richard D. Cudahy, Circuit Judge of the United         the gun and checked to see if the air rifle was empty. App. at
States Court of Appeals for the Seventh Circuit, sitting by designation.

                                   1
No. 02-2154                 Swix, et al. v. Daisy Mfg. Co.         3    4     Swix, et al. v. Daisy Mfg. Co.                No. 02-2154

45. He then shook the rifle with the barrel facing down                 principle [sic] consumers) was/were children and young
toward the floor. He pulled the bolt back and tilted the gun            adults” and that “[t]he model was particularly dangerous and
towards himself to see if there was a BB inside the rifle. He           defective when placed in the hands of minor children.” App.
believed at this point that the rifle was empty. He                     at 111, 113. The magistrate stated that “Defendant’s motion
subsequently pumped the rifle about five times and shot it at           to dismiss will apply to the amended complaint.” App. at
the floor. Only air came out. He then took the air rifle to the         113.
basement, pumping the rifle as he walked. When he got to
the basement, he began to watch a movie and held the air rifle            When the district court granted the defendant’s motion to
in his lap. Halfway through the movie, he picked up the air             dismiss one week later, on August 22, 2002, however, it gave
rifle, pointed it at his ten-year old friend Aaron Swix and “the        no indication that it was aware of the recent amendment to the
air rifle went off.” Id. According to the plaintiffs, the result        complaint. App. at 14-23. In oral argument, the parties
was painful and permanent injury to Aaron Swix and virtually            agreed that Judge Woods may have been unaware of the
complete loss of sight in his left eye.                                 amendment at the time he granted the motion to dismiss. In
                                                                        the same order, Judge Woods denied plaintiff’s motion for
    On January 14, 2002, Aaron Swix and his parents filed a             partial summary judgment as moot. This appeal followed.
products liability suit against Daisy Manufacturing Company,
in the Eastern District of Michigan, seeking one million                                                II
dollars and alleging claims of defective design and failure to
warn of a known danger. In their amended complaint, the                    The parties do not dispute that Michigan state law applies
plaintiffs argued that “[t]he BB storage magazine in the model          in this diversity suit brought under 28 U.S.C. § 1332. The
was dangerously and defectively designed [in that] . . . it             task of this Court, sitting in diversity, is to apply the same law
allowed a BB to become lodged in the forward portion,                   as would be applied by Michigan state courts. See Erie R.R.
between the barrel and interior of the outer barrel assembly            v. Tompkins, 304 U.S. 64 (1938). Where a state’s highest
. . . thus misleading the operator to believe . . . the air rifle, to   court has spoken to an issue, we are bound by that decision
be completely empty of BBs, [even after pumping and firing],            unless we are convinced that the high court would overrule it
when, in fact, a BB would still be present in the magazine.”            if confronted with facts similar to those before us. See
App. at. 8.                                                             Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198 (1956).
                                                                        Where a state appellate court has resolved an issue to which
   On March 14, 2002, Daisy filed a motion to dismiss the               the high court has not spoken, “we will normally treat [such]
complaint arguing that a gun is a “simple tool” under                   decisions . . . as authoritative absent a strong showing that the
Michigan law and the dangers of pointing it at another person           state’s highest court would decide the issue differently.” In
are “open and obvious.” On April 18, 2002, plaintiffs filed a           re Akron-Cleveland Auto Rental, Inc., 921 F.2d 659, 662 (6th
motion for partial summary judgment on the issue of Daisy’s             Cir. 1990).
liability but apparently they failed to file a timely
memorandum in support. On August 14, 2002, the parties                     The district court dismissed Swix’s complaint in this case
appeared at a telephonic hearing before Magistrate Judge                finding that he had failed to establish that Daisy owed Swix
Steven Pepe. At that hearing, Magistrate Judge Pepe granted             a duty of care. App. at 23. Under Michigan law, both a
the plaintiffs’ motion to amend their complaint to include the          failure to warn claim and a defective design claim require a
allegation that “[d]efendant’s primary marketing target (and            plaintiff to establish that the defendant owed him a duty of
No. 02-2154               Swix, et al. v. Daisy Mfg. Co.     5    6      Swix, et al. v. Daisy Mfg. Co.             No. 02-2154

care. See Davis v. McCourt, 226 F.3d 506, 511 (6th Cir.           obviousness of the risks that inhere in some simple tools or
2000); Kirk v. Hanes Corp. of North Carolina, 16 F.3d 705         products is a factor contributing to the conclusion that such
(6th Cir. 1994). There is also a defense under Michigan law       products are not unreasonably dangerous. The test, however,
to the duty requirement in a failure to warn and in a defective   is not whether the risks are obvious, but whether the risks
design claim known as the “simple tool rule.” See Fisher v.       were unreasonable in light of the foreseeable injuries”);
Johnson Milk Co., Inc., 383 Mich. 158, 174 N.W.2d 752             Cacevic v. Simplimatic Eng’g Co., 241 Mich. App. 717, 725,
(Mich. 1970); Kirk, 16 F.3d at 705.                               617 N.W.2d 386, 390-92 (Mich. Ct. App. 2000), vacated in
                                                                  part on other grounds, 463 Mich. 997, 625 N.W.2d 784
   In Fisher, a failure to warn case, a milkman sold a patent     (Mich. 2001) (“[A] manufacturer in a case alleging design
attorney a wire carrier made to carry four half-gallon bottles    defects is not absolved of liability simply because the danger
of milk. Id. at 159. On arriving home from the market with        associated with the product (simple or nonsimple) is open and
his carrier containing four milk bottles, the attorney slipped    obvious.”); Boumelhem v. BIC Corp., 211 Mich. App. 175,
on some ice in such a manner that the bottom of the carrier       181, 535 N.W.2d 574, 577-78 (Mich. Ct. App. 1995) (holding
struck the sidewalk, causing the bottles to break. Id. at 160.    the same relying, inter alia, on Owens and Glittenberg v.
He extended a hand in order to break his fall and his palm        Doughboy Recreational Indus., 441 Mich. 379, 491 N.W.2d
landed on a piece of broken bottle, severely injuring his hand.   208 (Mich. 1992)); Adams v. Perry Furniture Co., 198 Mich.
The attorney brought suit against the manufacturer of the wire    App. 1, 14, 497 N.W.2d 514, 520 (Mich. Ct. App. 1993)
carrier. The court in Fisher found that “a manufacturer owes      (“The test in design defect cases concerning simple tools is
no duty to warn of an open and obvious danger associated          whether the risks are unreasonable in light of the foreseeable
with the use of a simple [tool].” Davis, 226 F.3d at 511          injuries.”), overruled on other grounds by Allied Elec. Supply
(discussing Fisher). The parties do not dispute that this is a    Co., Inc. v. Tenaglia, 461 Mich. 285, 602 N.W.2d 572 (Mich.
correct statement of law with respect to a failure to a warn      1999); Restatement (Third) of Torts: Prod. Liab. § 2 (1998)
claim.                                                            (noting that “[a] strong majority of courts [including
                                                                  Michigan in Owens] have rejected the ‘open and obvious’ . . .
A. Is the “simple tool” rule an absolute defense to a             rule as an absolute defense . . .[and] [a]cademic commentators
   defective design claim?                                        have been almost unanimous in their criticism of the . . .
                                                                  rule.”). The Supreme Court of Michigan has explained why
   The parties do seem to disagree, however, whether the fact     obvious dangers should be treated differently in the design
that a product is deemed a “simple tool” and the danger is        defect context than in the failure to warn context. See
“open and obvious” is an absolute defense to a defective          Glittenberg, 441 Mich. at 394, 491 N.W.2d at 215. In
design claim or whether the obviousness of a danger is merely     Glittenberg, the Court explained:
one factor in the analysis of whether the risks are
unreasonable in light of the foreseeable injuries. We agree           In the design defect context, obvious risk may
with virtually every Michigan court which has opined on the           unreasonably breach the duty to adopt a design that
matter, all of which have suggested that the obviousness of a         safely and feasibly guards against foreseeable misuse.
danger is merely one factor in the analysis of whether the            Because the manufacturer’s liability for choice of design
risks are unreasonable in light of the foreseeable injuries.          is not determined solely by looking at the obvious nature
See, e.g., Owens v. Allis-Chalmers Corp., 414 Mich. 413,              of the alleged defect, obviousness of the danger does not
425, 326 N.W.2d 372, 377 (Mich. 1982) (“As in Fisher, the             preclude the possibility that an alternative design could
No. 02-2154               Swix, et al. v. Daisy Mfg. Co.         7   8       Swix, et al. v. Daisy Mfg. Co.                      No. 02-2154

  reduce the risk of harm at a cost and in a manner that             concluded that Prentis was actually consistent with Fisher
  maintains the product[’s] utility.                                 and that both cases found that the obviousness of the danger
                                                                     was simply one factor in the reasonableness analysis. Id. at
  In the failure to warn context, the obvious nature of the          708 (“Even though Fisher was decided prior to Prentis, it also
  simple product’s potential danger serves the core purpose          applied a ‘pure negligence’ standard . . . . While the risks that
  of the claim, i.e., it functions as an inherent warning that       glass bottles will break or that broken glass might injure
  the risk is present. Stated otherwise, if the risk is              someone are inarguably foreseeable, the court [in Fisher]
  obvious from the characteristics of the product, the               determined that such risks, as a matter of law, were not
  product itself telegraphs the precise warning that                 unreasonable given the obvious nature of the danger and the
  plaintiffs complain is lacking.                                    simple nature of the product.”) (emphasis in original). Kirk
                                                                     then applied the same reasonableness test of Prentis and
Id. (citations omitted). In other words, there is no need to         Fisher to a Bic lighter to conclude that no jury— “in light of
warn of a danger where the danger is obvious, but in a design        the fact that the danger of lighters is obvious to their intended
defect case, the court must also consider whether a                  users—could find that these lighters pose an unreasonable
manufacturer should have created the danger in the first place.      risk of harm.” Id. at 710 (emphasis in original). Therefore,
For instance, the danger associated with a rag-doll with steak       Kirk suggests that the test is not simply whether the danger is
knives for arms (“Steak Knife Sally”) may be quite obvious,          “open and obvious,” but instead whether the risks were
but it is equally clear that the risks associated with such a        unreasonable in light of the foreseeable injuries. Id. at 709
design choice far outweigh the utility.                              (“Were we to reject Fisher and Adams, as Kirk argues, we
                                                                     would have to hold that the determination of whether a
  Our opinion in Kirk is in accord. See 16 F.3d 705. In Kirk,        particular design presents an unreasonable risk of foreseeable
we were not asked to decide whether the fact that a danger is        injury may never be resolved by the court on summary
“open and obvious” is an absolute defense to a defective             judgment.”); see also id. at n.5.1
design claim or whether the obviousness of a danger is merely
one factor in the analysis of whether the risks are                    Daisy argues that the “open and obvious” nature of a
unreasonable in light of the foreseeable injuries. Instead, the      danger is dispositive based on Mallard v. Hoffinger Industries
question presented to this Court was whether the “simple tool        Inc., 222 Mich. App. 137, 564 N.W.2d 74 (Mich. Ct. App.
rule” applies in design defect cases at all. Id.
  Nonetheless, in deciding whether the simple tool rule                  1
                                                                           W e note that there is a great deal of confusion in the language of
applies to design defect cases, our discussion provided insight      many opinions, including Kirk, which have bearing on the question
into the question whether the open and obvious nature of a           whether the simple tool rule is dispo sitive or whether a reaso nableness
danger is merely one factor to be considered or is dispositive.      analysis applies. We believe that this confusion has be en created, in part,
Id. Specifically, our opinion addressed whether Fisher, which        because courts have conflated this question with the separate and
was argued to have established the rule that the obviousness         potentially independent question of whether such cases can be decided as
                                                                     a matter o f law. If each question is considered separately, however, it
of a danger is dispositive, was overruled by Prentis v. Yale         appears that there is no t much disagreement. As will be discussed, it is
Manufacturing Co., 421 Mich. 670, 365 N.W.2d 176 (Mich.              clear that a reasonablene ss analysis applies but that the nature of this
1984), which was argued to have replaced the dispositive rule        analysis will not prevent a design defect claim from being decide d as a
with a multi-factor “reasonableness” analysis. Id. We                matter of law where reasonable minds could not disagree as to the
                                                                     outco me.
No. 02-2154                    Swix, et al. v. Daisy Mfg. Co.             9    10    Swix, et al. v. Daisy Mfg. Co.                    No. 02-2154

1997).2 We find the reasoning of Mallard, however, to be                       the relevant discussion in Owens and Glittenberg as dicta.
unpersuasive. In Mallard, the Court discounted the guidance                    Mallard, 222 Mich. App. at 141-43, 564 N.W.2d at 77-78.
of the Michigan Supreme Court, noting that “[w]hile we agree                   As we have held, dicta can be of value in determining state
with plaintiffs that the Supreme Court’s language in                           law. See Kirk, 16 F.3d at 709. This is especially true here,
Glittenberg appears to suggest that the open and obvious                       where we have strong dicta from a variety of Michigan courts,
nature of the danger will not preclude any design defect                       including the state’s highest court, all making the same point.
claims, we conclude that the Court was discussing general                      Finally, we note that Mallard was decided prior to Cacevic
principles of design defect claims and not their applicability                 and without any apparent consideration of Boumelhelm.
to simple products.” See Mallard, 222 Mich. App. at 142,
564 N.W.2d at 77. We are at a loss to see how the court in                        Therefore, for the reasons discussed supra, we find that the
Mallard could find that the Supreme Court was excluding                        fact that a product may be a “simple tool” is not dispositive in
simple products from its discussion of design defect claims,                   a design defect case—the obviousness of a danger is merely
given that it held that “[i]n the design defect context, obvious               one factor in the analysis of whether the risks are
risk may unreasonably breach the duty to adopt a design that                   unreasonable in light of the foreseeable injuries. The fact that
safely and feasibly guards against foreseeable misuse . . .                    a multi-factor analysis may be involved, however, will not
[while][i]n the failure to warn context, the obvious nature of                 prevent a defective design claim involving a simple tool from
the simple product’s potential danger serves the core purpose                  being decided as a matter of law where reasonable minds
of the claim.” Glittenberg, 441 Mich. at 394, 491 N.W.2d at                    could not differ as to the outcome. See Kirk, 16 F.3d at 709
215 (quoted in full supra at ____).3 Mallard also discounts                    (noting the appropriateness of summary judgment “where the
                                                                               facts were clear and [there was] no genuine dispute as to the
                                                                               reasonableness of the manufacturer’s conduct”); Glittenberg,
    2
     Judge Kelly, in his concurrence in Ma llard, supported the view that      411 Mich. at 398-99, 491 N.W.2d at 217 (noting, in the
a “reaso nableness” analysis should be ap plied in design defect cases         context of a failure to warn claim, that a jury must consider
involving simple tools. See Ma llard, 222 Mich. App. at 145, 564 N.W.2d        the obviousness of the risk only “if reasonable minds could
at 78 (Kelly, J., concurring). Judge Kelly stated, “I write separately         differ” with respect to the outcome); Boumelhelm, 211 Mich.
because I question the analysis in Fisher. Even where the product is a         at 183, 535 N.W.2d at 578 (noting the propriety of the risk-
simple one, a manufacturer should be held to a standard of reasonable
care. The obviousness of the risk is only one factor that should be            utility test but affirming grant of summary judgment under
considered.” Id.                                                               the circumstances); Adams, 198 Mich. App. at 14, 497
                                                                               N.W.2d at 520 (same); Restatement (Third) of Torts: Prod.
    3
       Ma llard argues that the court in Glittenberg could not be endorsing    Liab. § 2 (1998) (“A court may direct a verdict when it is
a reasonableness analysis in design defect cases, despite its clear            convinced that, given the obviousness of the danger, it is not
language, because it expressly noted that its holding was not a departure      reasonable to require the adopting of an alternative design.”).
from Ow ens. Ma llard, 222 Mich. App. at 142, 564 N.W .2d at 77. The
significance of this fact is baffling given that Ow ens found that the
app licable test is “whether the risks were unreasonable in light of the
foreseeable injuries.” Owens, 414 M ich. at 425, 326 N.W.2d at 377.
Ma llard’s response to our criticism is that the court in Owens too could      and in any case, as our discussion of Kirk dem onstrates, Fisher is not
not be endorsing a reaso nableness analysis in design defect cases, d espite   inconsistent with the reasonableness analysis discussed in Ow ens. See
its arguably even clearer language, because it expressly ratified Fisher.      supra at ____. Therefore, we find that the chain of tenuous inferences
Mallard, 222 M ich. App. at 142 n.5, 564 N.W .2d at 77 n.5. However,           Ma llard uses to d iscount the clea r langua ge of the Michigan Supreme
Fisher involve d a failure to warn claim ra ther than a design defect claim    Court is unpersuasive.
No. 02-2154               Swix, et al. v. Daisy Mfg. Co.    11    12       Swix, et al. v. Daisy Mfg. Co.                 No. 02-2154

   In sum, whether the danger associated with a simple tool is    failed to demonstrate that an air rifle is anything but a “simple
“open and obvious” will determine whether a manufacturer          tool.”
owes a duty to warn and is also an important factor in
deciding a design defect claim. This inquiry requires us to       C. Is the danger alleged here to be associated with a Daisy
address two questions. First, is a Daisy air rifle a “simple         air rifle “open and obvious”?
tool” under Michigan law? Second, if so, is the danger
alleged to be associated with a Daisy air rifle “open and           The second question, whether the danger associated with a
obvious”?                                                         Daisy air rifle is “open and obvious,” is more difficult. In
                                                                  answering this question, “[t]he focus is the typical user’s
B. Is an air rifle a “simple tool”?                               perception and knowledge of whether the relevant condition
                                                                  or feature that creates the danger associated with use is fully
   Michigan caselaw does not provide a clear test for             apparent, widely known, commonly recognized, and
determining whether a product is a “simple tool.” However,        anticipated by the ordinary user or consumer.” Glittenberg,
the courts have categorized products as simple tools when one     411 Mich. at 391-92, 419 N.W.2d at 213 (emphasis added);
or both of the following conditions exist: (1) the products are   Adams, 198 Mich. App. at 12-13, 497 N.W.2d at 519 (same);
not highly mechanized, thus allowing the users to maintain        Kirk, 16 F.3d at 710 (finding that the danger of lighters is
control over the products; (2) the intended use of the products   obvious “to their intended users”); Prosser & Keeton, Torts,
does not place the users in obviously dangerous positions.        § 96, 686-87 (5th ed. 1984) (“[C]ourts have usually meant by
Davis, 226 F.3d at 511-12. For example, courts have found         ‘obvious danger’ a condition that would ordinarily be seen
hammers, knives, gas stoves, axes, buzz saws, propeller           and the danger of which would ordinarily be appreciated by
driven airplanes, trampolines and backyard pools to be simple     those who would be expected to use the product.”).
tools. Id. We have also found guns to be simple tools. Id.;
see also Treadway v. Smith & Wesson Corp., 950 F. Supp.              In this case, Swix amended his complaint one week before
1326, 1335-36 (E.D. Mich. 1996) (holding that a .38 caliber       the district court granted Daisy’s motion to dismiss to allege
revolver is a simple tool). As far as we are aware, no            that “[d]efendant’s primary marketing target (and principle
Michigan court has specifically considered whether an air         [sic] consumers) was/were children and young adults.” App.
rifle or BB gun, as opposed to a firearm, is a “simple tool.”     at 111, 113. In essence, Swix has alleged that the typical or
Fortunately, this is the easier of the two questions which we     intended users of the Daisy air rifle are children.4 We believe
must answer. Swix does not argue that an air rifle is more        that the district court was unaware of this amendment at the
“highly mechanized” than other guns. Similarly, the intended      time it granted the defendant’s motion to dismiss, which may
use of an air rifle does not appear to place the user in a        explain its holding.
significantly different position than users of firearms. In
short, Swix’s complaint does not even attempt to distinguish        This allegation is crucial in that it distinguishes this case
an air rifle from a firearm in any way relevant to the            from every Michigan case which holds that the dangers
determination of whether it is a “simple tool.” Although
Swix argues that an air rifle can mislead the operator into            4
believing it is empty when it is actually loaded, we have noted        According to the affidavit of W illiam F. K itzes, Swix’s expert, a
the same to be true of a firearm. See Davis, 226 F.3d at 512.     September 1975 study commissioned by Daisy found that the median age
                                                                  of purchasers of Daisy Power Line guns was twelve years old. App. at
Therefore, we agree with the district court that Swix has         91.
No. 02-2154               Swix, et al. v. Daisy Mfg. Co.     13    14       Swix, et al. v. Daisy Mfg. Co.                    No. 02-2154

associated with guns or other products intended for adults         Liab. § 2 (1998) (“In some contexts, products intended for
were “open and obvious.” These cases all applied an                special categories of users, such as children, may require
“objective reasonable adult standard,” not because it was an       more vivid and unambiguous warnings.”). “The test to
adult who was using the product which caused injury, but           determine whether a danger is obvious is an objective one, not
because the product in question was intended for and typically     dependent upon the actual knowledge of the user, or his actual
used by adults. See Treadway, 950 F. Supp. at 1336                 awareness of the danger. It is the knowledge and realization
(applying an “objective and reasonable adult standard” in a        of the danger that would be possessed by the ordinary
products liability case involving a gun); Adams, 198 Mich.         consumer who purchases or uses the product . . . . If the
App. at 13, 497 N.W.2d at 519 (“Notwithstanding Bic’s              product is one customarily used by children, the danger must
acknowledgment that it was foreseeable . . . that lighters could   be one which children would be likely to recognize and
get into and were getting into the hands of children, the          appreciate in order to prevent them from recovering for a
typical user of a lighter is an adult.”); Kirk, 16 F.3d at 710     product related injury on the grounds that the danger was
(noting that lighters are “manufactured for and sold to, adult     open and obvious.” W. Kimble & R. Lesher, Products
users . . . . [In contrast,] [a] manufacturer who bypasses         Liability § 196 (1979).
adults, upon whom the law ordinarily places responsibility,
and markets a simple, but dangerous, tool directly to children        Therefore the question presented here is whether the
may not avoid liability on the ground that the child ‘should       reasonable child of whatever age the typical user of a Daisy
have known better.’”).                                             air rifle is determined to be would know that it would be
                                                                   dangerous to aim the rifle at another and click the trigger,
   If the typical user of a Daisy air rifle is a child, which we   even after going through the process of emptying and testing
must presume to be true on a motion to dismiss, an objective       the rifle that Porritt allegedly went through in this case.
reasonable child standard must apply. See Kirk, 16 F.3d at         Given that this question has not yet been answered by any
710; Moning v. Alfono, 400 Mich. 425, 448-49, 254 N.W.2d           Michigan court and given that reasonable minds could differ
759, 769 (Mich. 1977) (“One has no right to demand of a            as to the answer, we believe this question is not particularly
child, or of any other person known to be wanting in ordinary      appropriate for determination as a matter of law.5 See, e.g.,
judgment or discretion, a prudence beyond his years or
capacity.”); Sherk v. Daisy-Heddon, 285 Pa. Super. 320, 427
A.2d 657 (Pa. Super. Ct. 1981) (applying a reasonable child             5
                                                                         Daisy also makes the argument that it had no duty to warn in this
standard to a products liability case involving a Daisy air        case as a matter of law, based on Ma llard, in which the court mentioned
rifle), vacated on other grounds, 498 Pa. 594, 450 A.2d 615        that “if a child is capable of understanding a warning, the dangerous
(Pa. 1982); Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107,         condition would be obvious to the child, rendering the warning
119 (3d Cir. 1992) (applying Sherk); cf. Mallard v. Hoffinger      unnecessary.” 210 Mich. App. at 285-86, 533 N.W.2d at 2; Opp. Br. at
Indus., Inc., 210 Mich. App. 282, 286, 533 N.W.2d, 13 (Mich.       20-21. This argument is without merit. The court in Ma llard did not
                                                                   establish a general rule that there is no duty to warn children. The point
Ct. App. 1995), vacated in part on other grounds, 451 Mich.        Ma llard was making was context specific. In Ma llard, a young child
884, 549 N.W.2d 573 (Mich. 1996) (“Because the                     dived into a p ool and hit his head on the botto m. T he co urt app arently
determination of the obvious nature of the danger is an            believed that the danger was so open and obvious in that case that any
objective one that focuses on the typical pool user . . . we are   child old enough to understand the warning would necessarily be ca pab le
unable to distinguish this case from Glittenberg on the basis      of perceiving the danger on his o wn. In contrast, it is quite possible that
                                                                   a twelve year old might not understand that an “empty” B B gun could still
of the victim’s age.”); Restatement (Third) of Torts: Prod.        discharge without an actual warning to such effect. In any case, given
No. 02-2154                     Swix, et al. v. Daisy Mfg. Co.           15     16   Swix, et al. v. Daisy Mfg. Co.               No. 02-2154

Glittenberg, 411 Mich. at 399, 491 N.W.2d at 217 (“If . . . the                 N.W.2d 477, 549-50 (Mich. Ct. App. 1982). In Farm Bureau,
court determines that reasonable minds could differ, the                        the court noted that in negligence cases involving children,
obviousness of the risk must be determined by the jury.”);                      the reasonable child standard would apply unless the child is
Moning, 400 Mich. at 447, 254 N.W.2d at 769 (“The issue                         engaged in an adult activity. Id. at 477, 547. The defendant
whether the defendants are subject to liability cannot properly                 argued that starting camp fires was an adult activity because
be taken from the jury on the supposition that an 11 year old                   it generally requires adult supervision and the child involved
boy knows how a slingshot operates and therefore appreciates                    was told that he had to be supervised. Id. at 479, 549-50. The
the risk.”); Crist v. Art Metal Works, 230 A. D. 114, 117, 243                  court declined, however, to depart from the usual standard,
N.Y.S. 496, 499 (N.Y. App. Div. 1930), aff’d by, 255 N.Y.                       noting that many activities should be done with adult
624, 175 N.E. 341 (1931) (“A product designed to be used by                     supervision, but this does not make them adult activities. Id.
adults who may be expected to exercise care may not be                          at 479, 550. Similarly, while there is no question that an air
dangerous, but when intended to be placed in the hands of                       rifle should be used with adult supervision, the complaint
inexperienced children who may seek to enlarge their                            alleges that the typical user of a BB gun is a child, so that is
knowledge by experimentation of various and sometimes                           the standard the district court must apply.
unexpected character, it may be a source of peril.”) (quoted by
Moning).6                                                                          Moreover, a manufacturer has a duty to protect against
                                                                                foreseeable misuses. Moning, 400 Mich. at 439; 254 N.W.2d
   Finally, though it might conceivably support a comparative                   at 765; Bordeax v. Celotex Corp., 203 Mich. App. 158, 167,
negligence defense, the fact that Daisy intended that its air                   511 N.W.2d 899, 905 (Mich. Ct. App. 1993). It is certainly
rifle be used under the direct supervision of an adult and that                 foreseeable that a twelve year old child will on occasion use
Swix’s grandfather had the same rule does not alter the                         a BB gun which was purchased for his use, without direct
“reasonable child standard” that applies in this case. See                      supervision, or that any supervision will be inadequate to
Farm Bureau Ins. Group v. Phillips, 116 Mich. App. 544, 323                     protect against a split-second decision by the minor to aim at
                                                                                another. See, e.g., Moning, 400 Mich. at 439, 254 N.W.2d at
                                                                                765 (“A manufacturer, wholesaler and retailer of slingshots
                                                                                can be expected to foresee that they will be used to propel
that the typical user of a pool is not a young child, the court in Ma llard
applied a reasonable adult standard and therefore the case is not               pellets and that a person within range may be struck.”).
app licable here. Id. at 13.
                                                                                                              III
    6
      W e note that in Me nard v. Newh all, 135 Vt. 53, 55, 373 A.2d 505,
507 (Vt. 1977), the court stated: “A BB gun which is neither defectively          Therefore, for the reasons discussed supra, we reverse the
designed nor manufactured is not dangerous beyo nd that which would be          district court’s grant of defendant’s motion to dismiss and
contemplated by the ordinary consumer with the ordinar y knowledge              remand this case to the district court for further proceedings
common to the community. A warning by the defendant Daisy that a BB             not inconsistent with this opinion.
gun, if fired at a person, could injure an eye, is nothing that even a seven-
year-old child does not already know.” Id. However, in Menard, there
was no allegation that the air rifle was defectively designed nor was it
argued that the child who fired the gun was under any misapprehension
about whether the gun would discharge. The plaintiff was simply arguing
in that case that Daisy should have provided a warning that the gun was
dangero us.
