Boumelhem v. Bic Corp. , 211 Mich. App. 175 ( 1995 )

White, P.J.

(concurring in part and dissenting in part). I agree that the circuit court correctly dismissed plaintiffs’ claims regarding failure to warn, negligent manufacture, breach of implied warranty, intentional tort, negligent misrepresentation and fraud. I concur in Judge Smolenski’s discussion of the claim of defective design and share his view that Adams v Perry Furniture Co (On Remand), 198 Mich App 1; 497 NW2d 514 (1993), was incorrectly decided. I would, however, reverse the grant of summary disposition regarding the claim of wilful and wanton misconduct.

I would hold that even if the Michigan courts adopt a rule that relieves manufacturers from any duty to design products so as to eliminate foreseeable, unreasonable risks when those risks are presented to an unintended, but foreseeable, user, the manufacturers should not be relieved from liability where the elements of wilful and wanton misconduct can be established. Plaintiffs sufficiently pleaded such a claim and provided factual support.¹

1 Plaintiffs contend, in effect, that Bic has long had knowledge that children frequently obtain possession of its lighters and operate them, igniting materials and causing fires, that Bic has also possessed the means to safely, effectively, and inexpensively render its lighters "child-proof,” and that, nevertheless, Bic has withheld these devices and has fought regulations requiring these devices. (Such regulations were passed by the Federal Consumer Products Safety Commission in 1993). In my view, these allegations go beyond mere negligent design. I also note that plaintiffs requested discovery in the trial court that was not provided and that might provide further support for these contentions.