NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0407n.06

                                           No. 17-2528


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Aug 14, 2018
 ROBERT KAMINSKI,                                                             DEBORAH S. HUNT, Clerk

        Plaintiff-Appellant,

 v.                                                   ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR
 THE LIBMAN COMPANY,                                  THE WESTERN DISTRICT OF
                                                      MICHIGAN
        Defendant-Appellee.




BEFORE:        SUHRHEINRICH, CLAY, and GIBBONS, Circuit Judges.

       CLAY, Circuit Judge. In this diversity action brought under 28 U.S.C. § 1332, Plaintiff

Robert Kaminski sued Defendant The Libman Company under Michigan state law, arguing that a

grill brush manufactured by Defendant lacked necessary warnings and was defectively designed.

The district court granted summary judgment for Libman, and Kaminsky appealed. For the

reasons set forth below, we AFFIRM the district court’s judgment.


                        FACTUAL AND PROCEDURAL HISTORY

       In July 2013, Kaminski purchased a stainless steel grill brush manufactured by Libman.

To clean his grill, he would run the brush back and forth over the hot grates for 10 to 30 seconds.
                                            No. 17-2528


According to Kaminski, he would put minimal pressure on the brush and never noticed any steel

bristles fall off during the brushing process.


       In May 2014, Kaminski sought medical treatment for “abdominal bloating” that had been

“worsening for the past few months[.]” (R. 66, opposition to summary judgment with exhibits,

PageID# 422.) A CT scan revealed that he had ingested a “metallic foreign body resembling a

thin copper wire,” probably from a “wire brush related to grilled meat.” (Id. at 424.) Kaminsky

had surgery, and the metal wire was removed. However, the wire was thrown away before it was

examined; Kaminski never even saw it. It appears that Kaminski did not ask the surgeons to save

the wire.


       In February 2016, Kaminski sued Libman in the district court. As relevant here, he raised

two product liability claims under Michigan state law: (1) a failure-to-warn claim, based on

Libman’s failure to attach a warning label to the brush indicating that bristles could fall off during

use; and (2) a breach-of-implied-warranty claim, based on the alleged defective design of the

brush. In support of his failure-to-warn claim, Kaminski produced evidence that at least two other

users of Libman’s brushes had been injured after ingesting a bristle. In support of his breach-of-

implied-warranty claim, Kaminski cited testimony from a metallurgical expert who opined that the

brush would have been safer had it used a different type of stainless steel, or a different method of

securing bristles to the handle. The expert did not testify as to the cost-effectiveness of any

alternative designs.


       In August 2017, Libman moved for summary judgment. The district court held a hearing

on the motion and, in an oral ruling, granted summary judgment for Libman. With respect to the

failure-to-warn claim, the district court determined that the brush was a simple tool that did not


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require any warnings. With respect to the breach-of-implied-warranty claim, the district court

performed a “risk utility” test and determined that the brush was not unreasonably dangerous. The

court noted that Kaminski had cited only two other instances in which bristles from Libman’s

brushes had caused injuries, a remarkably low number considering that Libman had sold

“millions” or even “tens of millions” of brushes throughout its history. (R. 75, hearing transcript,

PageID# 702–03.)


       Kaminski timely appealed the judgment. In his brief, he argues that the grill brush was not

a “simple tool” for purposes of his failure-to-warn claim and that the district court should not have

performed a “risk utility” test when analyzing his breach-of-implied-warranty claim.

                                          DISCUSSION

                                       Standard of Review

       This Court reviews de novo the district court’s grant of summary judgment. Gillis v. Miller,

, 683 (6th Cir. 2017). Summary judgment is warranted “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “When evaluating a summary judgment motion, the

reviewing court must construe the facts in the light most favorable to the non-movant.” 

.


                                             Analysis

       Kaminski argues that his failure-to-warn and breach-of-implied-warranty claims should

have gone to a jury. We consider each claim in turn.




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       A.      Duty to Warn

       In Michigan, “[m]anufacturers have a duty to warn purchasers or users of dangers

associated with the intended use or reasonably foreseeable misuse of their products[.]” Glittenberg

v. Doughboy Recreational Indus., 

, 211–12 (Mich. 1992). However, “the scope

of the duty is not unlimited.” 

“a manufacturer owes no duty to warn of an open

and obvious danger associated with the use of a simple tool.” Swix v. Daisy Mfg. Co., 

, 682 (6th Cir. 2004) (alterations omitted) (quoting Davis v. McCourt, 

, 511 (6th

Cir. 2000)). Accordingly, the inquiry in the instant case is straightforward. First, we ask whether

the grill brush is a “simple tool” under Michigan law. 

If the answer is “yes,” we then

ask whether the danger associated with the brush is “open and obvious.” 

is “open

and obvious” if it is “readily apparent or easily discoverable upon casual inspection by the average

user of ordinary intelligence.” 

–15.


       Michigan courts have categorized products as simple tools “when one or both of the

following conditions exist: (1) the products are not highly mechanized, thus allowing the users to

maintain control over the products; (2) the intended use of the products does not place the users in

obviously dangerous positions.” 

. Both requirements are met here. First, a

grill brush is not mechanized and is controlled entirely by the user. Second, a grill brush does not

put the user in obviously dangerous positions. Certainly, a grill brush is less dangerous than many

other items that qualify as “simple tools.” See 

found hammers, knives, gas

stoves, axes, buzz saws, propeller driven airplanes, trampolines and backyard pools to be simple

tools.”). Accordingly, a grill brush is a simple tool.


       Next, we ask whether the danger associated with a grill brush is “open and obvious” to a

reasonably prudent person. In answering this question, we consider whether it is “readily apparent

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or easily discoverable,” see 

–15, that the bristles on a grill brush

could break off and fall into food. Although this issue is closer, we believe this danger is “open

and obvious.” Most people have experience using all types of brushes, from paintbrushes and

toothbrushes to hairbrushes. Given that brushes are ubiquitous and extremely simple, a reasonably

prudent person would realize that the bristles on a grill brush are not indestructible. There is always

a risk, however small, that bristles will break or become dislodged. Kaminski himself recognized

this risk, stating in a deposition that he “imagined” that, due to wear and tear, a grill brush would

eventually “lose its bristles.” (R. 64-2, Kaminski deposition, PageID# 366.) To the extent

Kaminski argues that the bristles on Libman’s grill brush were unreasonably weak, that argument

touches on the next issue addressed in this opinion: whether the brush was defectively designed.

It has no bearing on whether the risk posed by the brush was “open and obvious.”1


       B.      Breach of Implied Warranty

       The Michigan Supreme Court provided a framework for analyzing breach-of-implied-

warranty claims in Prentis v. Yale Manufacturing Co., 

(Mich. 1984). As relevant

here, the court held as follows:

       Like the courts in every other state, whether a suit 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. This idea of
       “something wrong” is usually expressed by the adjective “defective” and the
       plaintiff must, in every case, in every jurisdiction, show that the product was
       defective.


       1
          Kaminsky’s brief failed to meaningfully address the “open and obvious” inquiry.
Accordingly, at oral argument, we repeatedly asked Kaminsky’s counsel to provide a reason why
the dangers posed by a grill brush should not be considered “open and obvious.” Counsel could
not give an answer. In addition, while counsel suggested that the “open and obvious” inquiry may
be inapplicable, that is simply incorrect. See 

(“[W]hether the danger
associated with a simple tool is ‘open and obvious’ will determine whether a manufacturer owes a
duty to warn[.]”).
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                                              No. 17-2528

(emphasis in original). Where the plaintiff argues that the product was defectively

designed (rather than defectively manufactured), the factfinder must perform a “risk-utility test.”

This test “invite[s] the trier of fact to consider the alternatives and risks faced by the

manufacturer and to determine whether in light of these the manufacturer exercised reasonable

care in making the design choices it made.” 

In 1996, the Michigan legislature passed

a statute confirming that a risk-utility test applies in all product liability actions:

        In a product liability action brought against a manufacturer or seller for harm
        allegedly caused by a production defect,2 the manufacturer or seller is not liable
        unless the plaintiff establishes that the 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.
        An alternative production practice is practical and feasible only if the technical,
        medical, or scientific knowledge relating to production of the product, at the time
        the specific unit of the product left the control of the manufacturer or seller, was
        developed, available, and capable of use in the production of the product and was
        economically feasible for use by the manufacturer. Technical, medical, or scientific
        knowledge is not economically feasible for use by the manufacturer if use of that
        knowledge in production of the product would significantly compromise the
        product’s usefulness or desirability.

Mich. Comp. Laws § 600.2946(2).


        In the instant case, the district court applied a risk-utility test and determined that the design

of the grill brush was not unreasonably dangerous. On appeal, we might have expected Kaminski

to challenge that conclusion. But remarkably, Kaminski has taken a different route: he argues that


        2
          “Production” is defined as “manufacture, construction, design, formulation, development
of standards, preparation, processing, assembly, inspection, testing, listing, certifying, warning,
instructing, marketing, selling, advertising, packaging, or labeling.” Mich. Comp. Laws
§ 600.2945(i) (emphasis added).
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                                             No. 17-2528


a risk-utility analysis should not have been performed at all. According to Kaminski, Michigan

law “supports a claim for breach of implied warranty where the manufacturer of a product did not

negligently design or manufacture it or fail to issue proper warnings[.]” (Plf.’s Br. at 9.)


        Kaminski is simply wrong. The Michigan Supreme Court in Prentis could not have been

clearer: it held that in a product liability action, the plaintiff “must, in every case, in every

jurisdiction, show that the product was defective.” 

–82 (emphasis in

original). It further held that “we adopt, forthrightly, a pure negligence, risk-utility test in products

liability actions against manufacturers of products, where liability is predicated upon defective

design.”    

   This framework was subsequently codified at Mich. Comp. Laws

§ 600.2946(2). Consequently, the district court was correct to apply a risk-utility test.3


        It appears that Kaminski’s confusion stems from his reading of two cases written by the

same district court judge: Sundberg v. Keller Ladder, 

(E.D. Mich. 2002), and

Fleck v. Titan Tire Corp., 

(E.D. Mich. 2001). In both of those cases, the

district judge correctly stated that, to prevail on a breach-of-implied-warranty claim, the plaintiff

must prove that the product was defective. See 

(recognizing that

the plaintiff must show that “the product in question was . . . defective”); Fleck, 

          Kaminski points out that technically, his design-defect claim is not based on negligence,
but on breach of implied warranty. (Plf.’s Br. at 9.) That is true, but irrelevant. As explained in
Prentis, both theories converge when the defendant is the manufacturer because “recovery under
either theory require[s] the jury to determine that the [product] was defectively 

. This Court has repeatedly made this clear. See Hollister v. Dayton Hudson
Corp., 

, 736–37 (6th Cir. 2000) (“[I]n cases where a seller is also the manufacturer,
Michigan courts have observed that claims of negligence and breach of implied warranty are, for
all intents and purposes, identical.”); Peak v. Kubota Tractor Corp., 559 F. App’x 517, 524 (6th
Cir. 2014) (“Although breach of implied warranty and design defect are distinct theories of
recovery, ‘in an action against the manufacturer of a product based upon an alleged defect in its
design, breach of implied warranty and negligence involve identical evidence and require proof of
exactly the same elements.’” (quoting 

)).
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                                            No. 17-2528


at 621 (same). Yet later in each opinion, the district judge made broad statements suggesting that

a plaintiff can prevail without proving a defect. See 

(stating that

a plaintiff can prevail “even if none of the three types of ‘defects’ (i.e. design, manufacture or

warning) could support the jury’s finding”); 

–22 (stating that “a

product could be ‘defective’ without having a traditional ‘defect’ in the product liability sense”).

To the extent these broad statements are taken literally, they are incorrect. As explained above, a

plaintiff in a breach-of-implied-warranty claim must show “that the product was sold in a defective

condition[.]” 

. To that end, the plaintiff must prove either defective

manufacture or defective design, which may include a failure to warn. See 

(explaining that a product can be defectively manufactured or defectively designed);

Gregory v. Cincinnati Inc., 

, 328–29 (Mich. 1995) (explaining that a design can

be defective for failure to include proper warnings). In the instant case, Kaminski does not argue

that the grill brush was defectively manufactured. In addition, we have already determined that

there was no failure to warn. That leaves only a claim for defective design. Under Prentis, and as

codified in Mich. Comp. Laws § 600.2946(2), a claim based on defective design necessarily

requires a risk-utility analysis.


        Given that the district court was correct to apply the risk-utility test, the only remaining

question is whether it applied that test appropriately. However, at oral argument, Kaminsky’s

counsel conceded that the risk-utility test had not been satisfied. In light of this express admission,

our hands are tied. We are compelled to conclude that the district court properly granted summary

judgment on Kaminsky’s breach-of-implied-warranty claim.


                                          CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s judgment.

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