Michigan Supreme Court

Lansing, Michigan

Stephen J. Markman,

 Chief Justice

Brian K. Zahra

Bridget M. McCormack

David F. Viviano 

Richard H. Bernstein

Kurtis T. Wilder

Elizabeth T. Clement,

Justices

Order 

June 1, 2018

156475 & (81)

KIRK SCOTT PEDERSEN,

Plaintiff-Appellee,

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
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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 onproduct 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.”
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

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Clerk

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.