1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

LAURA HOLLISTER,

Plaintiff-Appellant,

AMERICAN COMMUNITYMUTUAL INSURANCECOMPANY,

Intervenor,

v.

DAYTON HUDSONCORPORATION,

Defendant-Appellee.

Appeal from the United St

for the Eastern District of M

No. 96-73142—John Feike

Argued: August 

Decided and Filed: Jan
2 Hollister v. Dayton Hudson Corp. 98-1660

*

The Honorable James L. Graham, United States District Judge for

the Southern District of Ohio, sitting by designation.

1This case is the subject of an earlier opinion. See Hollister v.

Dayton Hudson Corp., 188 F.3d 414 (6th Cir.1999). Upon Hollister’spetition for rehearing, the panel is persuaded that the earlier opinionshould be withdrawn and this opinion substituted. 

Before: SILER and GILMAN, Circuit Judges; GRAHAM,

District Judge.*

_________________

COUNSEL

ARGUED: Steven P. Handler, McDERMOTT, WILL &EMERY, Chicago, Illinois, for Appellant. Barry B. Sutton,HARVEY & KRUSE, Troy, Michigan, for Appellee.ON BRIEF: Steven P. Handler, Charles M. Gering,McDERMOTT, WILL & EMERY, Chicago, Illinois, RobertP. Lynn, Jr., Mineola, New York, for Appellant. Barry B.Sutton, Dennis M. Goebel, HARVEY & KRUSE, Troy,Michigan, for Appellee. 

______________________

AMENDED OPINION

______________________

RONALD LEE GILMAN, Circuit Judge. Laura Hollister,

a citizen of Michigan, was severely burned when the shirt thatshe was wearing ignited upon contact with a hot electricburner on her apartment stove.1 She brought a lawsuit againstDayton Hudson Corporation, the Minnesota-based owner ofthe department store where the shirt was purchased, allegingnegligence and breach of the store’s implied warranty ofmerchantability. Her claims were based on allegations that(1) the shirt’s design rendered it unreasonably dangerous, and(2) the shirt failed to carry a warning as to its extremeflammability. The district court granted Dayton Hudson’s
98-1660 Hollister v. D

motion for summary judgment, connot established a prima facie casMichigan law, and that any duty to open and obvious nature of the all

Contrary to the decision of the di

Hollister has adduced sufficienreasonable juror to conclude that Hudson was defective because of itregarding its extreme flammabilitfailed to show any negligence oregarding this alleged defect, she nfacie case that the shirt was defecinjuries in order to pursue her clawarranty. We therefore AFFIRM summary judgment on HollisREVERSE its entry of summary breach of implied warranty claim tis based upon a failure to warn, aproceedings consistent with this o

I. BACKGRO

A. The accident

In November of 1995, Hollister 

Northwestern University in Evanst4, 1995, she attended a business-scJerome Joliet. She later retuaccompanied by another friend, approximately 1:45 a.m. the nexO’Connell, Hollister was intoxicaparty. O’Connell departed from approximately 2:10 a.m. 

Hollister has no memory of sub

thing that she can recall is seeinapproximately 9:30 a.m. on Novemwas injured, Hollister phoned hAccording to Hollister’s parents, shburner, pasta.” Hollister’s parents 
4 Hollister v. Dayton Hudson Corp. 98-1660

of a friend and she supplied O’Connell’s. After leaving amessage on O’Connell’s machine, Hollister’s father asked hisdaughter for another number, and she supplied Joliet’s. Mr.Hollister then left a message on Joliet’s machine. Jolietarrived at Hollister’s apartment at about 10:00 a.m. that day,discovered that Hollister was severely burned, and called 911.Evanston Fire Department paramedics came immediately andtreated Hollister. 

One of the paramedics found that the right front and rear

burners of Hollister’s stove were glowing red when hearrived. There was a bowl of cooked pasta in the sink, and apot sitting on the stove between the burners. The firedepartment report concludes that the fire began in the kitchen.At the request of the fire department, the United StatesBureau of Alcohol, Tobacco, and Firearms (BATF) assistedin investigating the accident. The BATF report also indicatesthat the fire began in the kitchen. It concludes that theaccident most likely occurred when Hollister reached forsomething in the cabinet above the stove (the door to whichwas open) and her shirt-tail, which was hanging loose,brushed against the burner and ignited. Hollister nextapparently attempted to smother the flames on the counter,where burned cloth was found. The report states that therewas evidence that she then attempted to extinguish the flameswith water from the bathtub. There was evidence that afterdoing so, Hollister rested on her bed, where more burnedclothing and body fluids were found. Small remnants ofHollister’s shirt, a brown and black plaid button-down, werefound. Hollister’s mother stated that she had purchased thisshirt for Hollister at a Dayton Hudson’s department store sixyears earlier. Hollister was also wearing a T-shirt and braunder the large plaid shirt at the time of the accident. Thereport concludes that “the cause of this fire should beclassified as accidental caused by ignition of the victim’sclothing by the stove burner while she was cooking.” 

Hollister was brought to Evanston Hospital, where she was

treated for third-degree burns over fifty-five percent of herbody. She was later transferred to Loyola Hospital in

98-1660 Hollister v. Don Hollister’s breach of implied wthat the claim is based upon a failurfor further proceedings consistent 
20 Hollister v. Dayton Hudson Corp. 98-1660

jury is entitled to consider any other relevant evidence on theissue.” Howard, 601 F.2d at 138.

This last holding is particularly significant because Dayton

Hudson cites the fact that the exemplar fabric met federalflammability standards as a factor supporting the grant ofsummary judgment. Although such evidence wouldundoubtedly be relevant evidence for Dayton Hudson tointroduce at trial, it is not dispositive of Hollister’s claim atthis stage. See id.; Wilson v. Bradlees of New England, Inc.,

96 F.3d 552 (1st Cir. 1996) (holding that evidence of agarment meeting the federal flammability standards wasrelevant to, but not dispositive of, plaintiff’s claims). 

We therefore conclude that Hollister has established a

prima facie case against Dayton Hudson for breach of impliedwarranty based upon a failure to warn, and that the districtcourt erred in entering the grant of summary judgment on thisclaim. This is not to say, however, that Hollister willnecessarily prevail at trial. She will still have to convince ajury that the shirt was considerably more flammable than areasonable consumer would expect. See Glittenberg, 491

N.W.2d at 212-13. She will also have to convince a jury thatthe lack of a warning on the shirt was a proximate cause ofher injuries. See Moll v. Abbott Labs., 506 N.W.2d 816, 824(Mich. 1993). Finally, if Hollister does establish liability, thedamages that Hollister sustained will be diminished inproportion to any amount of negligence attributed to her bythe jury. See M.C.L. § 600.2949; Karl v. Bryant AirConditioning Co., 331 N.W.2d 456, 462 (Mich. 1982)(holding that the Michigan comparative negligence statuteapplies to breach of implied warranty actions). These hurdlesare likely to be significant ones. We are convinced, however,that Hollister has the right to proceed to the next stage of thelitigation. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

district court’s entry of summary judgment on Hollister’snegligence claim, REVERSE its entry of summary judgment

98-1660 Hollister v. DChicago, where she stayed until Dtreatment at Loyola, Hollister University of Michigan MedicaMichigan, where she remained un

As a result of her burns, 

comprehensive skin grafting to mwell as plastic and reconstructivprofoundly disfigured. Her medicthe district court’s ruling in Maapproximately $980,000.B. Procedural background

On March 27, 1996, Hollister’

Circuit Court of Wayne Countydefendants were Dayton Hudson (department store where the shirLauren (the company that Hollbelieved was the manufacturer of t(the retailer of the T-shirt), Victorthe bra), and General Electric (the mThe complaint alleged that the shiwas extremely flammable and bewarning of this condition. On Juremoved to the United States DisDistrict of Michigan on the basis Pursuant to a July 31, 1997 motionfor her parents as the plaintiff. 

On August 1, 1997, the dist

conference with all of the partiesnoted that in the 16 months thexistence, a “whole lot of nothingpoint, Hollister had arranged for than a consultant who was going tfabrics. The court directed Hollisher experts, pursuant to Rule 26 of Procedure, by September 1, 1997October 31, 1997 was also set. 
6 Hollister v. Dayton Hudson Corp. 98-1660

On September 1, 1997, Hollister submitted reports pursuant

to Rule 26 from the following four experts: David Hall(textile expert), Edmund Knight (expert on cause and originof the fire), Anna Dutka (economic damages expert), andAlan Hedge (stove design expert). Dr. Hall’s report statedthat he was still looking for “exemplar” fabric identical to therayon used in the shirt in question, and that in his opinion thefabric was dangerously flammable. The report identifies thefabric as 100% rayon, loosely woven with 1.5 denier threads.

Dr. Hall offered no opinion as to the feasibility of using a

different fabric to construct a similar shirt, and acknowledgedthat he had no expertise in the use of fabrics in clothing. Heinitially testified that the flammability test promulgated by theConsumer Products Safety Commission (CPSC), set forth in16 C.F.R. § 1610, determines whether a fabric is“unreasonably dangerous.” The regulation’s purpose is “toreduce danger of injury and loss of life by providing, on anational basis, standard methods of testing and rating theflammability of textiles and textile products for clothing use,thereby discouraging the use of any dangerously flammableclothing textiles.” 16 C.F.R. § 1610.1. Because theirproducts passed the CPSC flammability test, Banana Republic

and Victoria’s Secret were eventually dismissed asdefendants. Although Dr. Hall never tested the shirt remnantspursuant to 16 C.F.R. § 1610, Dayton Hudson’s expert did.The fabric passed the test. Despite this fact, Dayton Hudsonremained as a defendant. By October of 1997, Hollister haddismissed all of the other remaining parties.

In his deposition on October 31, 1997, Dayton Hudson’s

causation expert, John Campbell, acknowledged that he hadlocated an “exemplar” shirt composed of fabric identical tothat used in the shirt involved in the accident. Hollister’scounsel subsequently purchased identical shirts to the one thatCampbell had identified, and gave them to Dr. Hall forexamination and testing. 

Dr. Hall determined that the characteristics of the exemplar

fabric were substantially identical to the shirt that Hollister

98-1660 Hollister v. Dthat the robe’s unexpected flammcause of her injuries. See id. at 59

The Fourth Circuit’s decision in H

601 F.2d 133 (4th Cir. 1979), is alsa products liability action was brinfant son was fatally burned when inexplicably caught fire. The motand the retailer of the infant’s manufacturer and the retailer of hliability, negligence, and breacJudgment as a matter of law was eretailers. The Fourth Circuit reversboth of which are relevant to the i

The district court had entered jud

the retailer of the pajamas, because expert testimony regarding the paoffering eyewitness testimony thaquickly and burned very rapidly. Circuit wrote: 

It has been held that, even whedemonstrated that a product inflammable for use by infants, ifor the jury to find that the prinflammable from . . . proof theasily, (and) burned rapidly andegree of heat.” 

Howard, 601 F.2d at 137 (citing 378). 

McCrory, the retailer of the bathr

notwithstanding the verdict on the the robe had been tested and founClass I fabrics under the CPSC flamCircuit reversed this holding “[c]ompliance with federal standaris not conclusive on the issue of M
18 Hollister v. Dayton Hudson Corp. 98-1660

expert, the exemplar fabric ignited instantly and burnedcompletely within six seconds. Of the fourteen comparisonsamples, eleven failed to ignite at all when passed over aburner at the same rate. The three samples that did ignitewere another 100% rayon sample and a rayon-polyester blend,both of which burned in about twelve seconds, and a piece ofnewspaper, which burned in four seconds. Thus the exemplarfabric burned twice as quickly as other rayon fabrics, and onlytwo seconds slower than a piece of newspaper. A reasonablejuror could conclude from this evidence that the shirt’smanufacturer had a duty to know that the shirt possessed alatent danger, and a corresponding duty to warn consumers ofthat danger.

Once a plaintiff establishes that a product is

defective—whether because of its design or because of afailure to warn—she must then demonstrate that this defectwas a proximate cause of her injuries in order to make out aclaim for breach of implied warranty. See Piercefield, 133N.W.2d at 134. Hollister’s mother stated in an affidavit thatshe would not have bought the shirt for her daughter if shehad known that the shirt was extremely flammable, andHollister herself maintained in an affidavit that she would nothave worn the shirt in question if she had possessed suchknowledge. A reasonable jury could find, based on thisevidence, that the shirt’s failure to carry a warning was aproximate cause of Hollister’s injuries.

In Deffebach v. Lansburgh & Bro., 150 F.2d 591 (D.C. Cir.

1945), the D.C. Circuit addressed a fact pattern quite similarto the one before us. That case involved an implied warrantyclaim against a non-manufacturing retailer who sold theplaintiff a chenille robe. Ignited by a spark as the plaintiffattempted to light a cigarette, the robe caught fire and burnedexplosively. The district court granted judgment as a matterof law to the retailer. On appeal, the D.C. Circuit reversed,holding that judgment as a matter of law was inappropriatebecause the plaintiff had produced evidence to satisfy bothelements of an implied warranty claim—she haddemonstrated that the robe was dangerously flammable and

98-1660 Hollister v. Dhad been wearing at the time oconducted a test comparing the exeother fabrics. The test utilized a stat 1100-1160 degrees, and involvestrips of the various fabrics across tthe rate of ignition and burning. Timmediately, and burned compleEleven of the fourteen non-exempat all. The three samples that did rayon sample, a rayon-polyester babout twelve seconds to burn conewspaper (which burned in four 

At the close of discovery, Da

summary judgment. One grorequirement that a plaintiff such aeffectiveness of a proposed alternHollister acknowledged that she expert witness on the effectivenesShe claimed that this was a questidid not require expert testimosubsequently held a hearing on JHollister’s position, stating as foll

THE COURT: —you say that thsevere injury from a highly fmanifest, that no expert testimonreally made me open my eyes. Yimpanel a jury, and you can puany testimony to show this? . . . MR. HANDLER: We mean it. 

The district court then presented threquirements necessary to establidesign defect under Michigan law

After briefing by both parties, 

Dayton Hudson’s motion for summ1998. Hollister timely filed her no
8 Hollister v. Dayton Hudson Corp. 98-1660

II. ANALYSIS

A. Standard of review

We review de novo the district court’s grant of summary

judgment. See, e.g., Smith v. Ameritech, 129 F.3d 857, 863

(6th Cir. 1997). Summary judgment is appropriate whenthere are no issues of material fact in dispute and the movingparty is entitled to judgment as a matter of law. See 

FED. R.

CIV. P. 56(c). In deciding a motion for summary judgment,the court must view the evidence and draw all reasonableinferences in favor of the non-moving party. See Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,587 (1986). The judge is not “to weigh the evidence anddetermine the truth of the matter but to determine whetherthere is a genuine issue for trial.” Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial ispresented when there is sufficient “evidence on which the jurycould reasonably find for the plaintiff.” Id. at 252.B. The district court properly disposed of Hollister’s

claims based on negligence, but erred in failing toseparately consider Hollister’s breach of impliedwarranty claim

Hollister’s original complaint asserts two distinct causes of

action—negligence and breach of implied warranty. Theformer is a tort action and the latter is an action for breach ofcontract. In evaluating Hollister’s claims, however, thedistrict court did not distinguish between the two. The districtcourt’s summary disposition of Hollister’s negligence claimwas proper. Hollister failed to offer any evidence ofnegligence on Dayton Hudson’s part, such as proof that theretailer knew of the shirt’s extreme flammability or that it hadreceived consumer complaints about the shirt in the past. Animplied warranty claim, on the other hand, does not require aplaintiff to prove that the retailer was negligent—only that theproduct was defective and that the defect caused her injury.

Hollister has not been particularly helpful in bringing this

distinction to the court’s attention. Indeed, in her appellate

98-1660 Hollister v. Dexercise reasonable care to inform See Glittenberg, 491 N.W.2d at 

dangers of diving headfirst aboveground swimming pool werproduct’s danger is open and consumer, the manufacturer has n213. In such a case, a retailer who found liable for breach of impliproduct is not defective.

The district court disposed of H

argument in a cursory manner, cinherent in having clothing come inis “open and obvious.” We oversimplified. It is true that a know that clothing is flammable; one of degree. See Michigan MFireplace, 366 N.W.2d 202, 205 (

even if a reasonable consumer wouvents on a fireplace presented a “vstill reasonably find that a warninconsumer “a full appreciation of tthreatening risks involved”). A cobe expected to know that a rayon easily and burn more quickly thaflannel. An ordinary consumer knowing, however, that a parsubstantially more combustible anrayon shirt. Cf. LaGorga v. KrogePenn. 1967) (denying a retailer’s matter of law where the plaintiff breach of implied warranty for selunusually flammable and lacked a public cannot be expected to posseknowledge to apprehend inherent 407 F.2d 671 (3d Cir. 1969).

Hollister presented credible ev

fabric burned explosively, like ncomparable fabrics did not. In test
16 Hollister v. Dayton Hudson Corp. 98-1660

safer manner. The category of failure to warn, on the otherhand, applies to a product that may be designed in anoptimally safe way, but nevertheless bears a latent danger thatwould not be apparent to an ordinary consumer. For example,without a warning as to its weight restrictions, a highwaybridge might be legally “defective” even if it was designedsafely and was in perfect working order. See Wilson v.Bradlees of New England, Inc., 96 F.3d 552, 559 (1st Cir.1996). Similarly, a prescription drug might be well designedand effective for its intended use, but it would nevertheless belegally “defective” if it lacked appropriate warnings as to itsproper dosage and possible side effects. See Restatement

(Second) Torts § 402A, comment h (1972); see also Barry v.Don Hall Labs., 642 P.2d 685, 688 (Or. Ct. App. 1982)(holding that properly manufactured vitamins might still befound defective due to the absence of a warning as to theirhigh sugar content).

Under Michigan law, design defect claims and failure to

warn claims are governed by distinct analyses. See Gregoryv. Cincinnati Inc., 538 N.W.2d 325, 329 (Mich. 1995)(holding that a manufacturer’s failure to warn can support aproduct liability claim “even if it the design chosen does notrender the product defective.”); Glittenberg v. DoughboyRecreational Indus., 491 N.W.2d 208, 216 (Mich. 1992)(cautioning that “design defect analysis must not be used toevaluate failure to warn claims”). In the present case, themost relevant difference between the two claims is that aprima facie case of design defect requires that the plaintiffpropose a reasonable alternative design, but a failure to warnclaim does not. Thus Hollister’s failure to propose a safer,alternative design for the rayon blouse, which was fatal to herdesign defect claim, does not support a grant of summaryjudgment against her claim for failure to warn. In order to establish, under Michigan law, that a product isdefective due to a failure to warn, a plaintiff must demonstratethat a manufacturer (1) had actual or constructive knowledgeof the alleged danger, (2) had no reason to believe thatconsumers would know of this danger, and (3) failed to

98-1660 Hollister v. Dbrief, she incorrectly states that negligence and breach of warranty product liability cases are judged bpure negligence risk-utility test.” her two causes of action as if governed both.

Hollister’s and the district cou

appropriate legal standard most lthat, in cases where a seller is Michigan courts have observed thabreach of implied warranty are, foidentical. The reason for this conalleging breach of implied warranmust show that the purchased proshowing, in turn, requires prmanufacturer acted negligently, typfeature or in failing to give warninfor breach of implied warranty agamanufacturer will therefore requnegligence on the defendant’s parliability suit against a manufactureCo., 365 N.W.2d 176, 186 (Mic

Squibb & Sons, Inc., 245 N.W.2d 1976), aff’d, 273 N.W.2d 476 (Mi

When the defendant is a n

however, the two analyses divergeat 186 n.30 (“Thus . . . the only timimplied warranty and negligence min design defect cases, is in determiwho is not also the manufacturer of existence of a defect is generally dconduct of the manufacturer, a retabreaching its implied warranty of a defective product, even if the refree from negligence. See JohnsoN.W.2d 569, 571 (Mich. Ct. App. verdict in favor of the retailer of press, even though the retailer was 
10 Hollister v. Dayton Hudson Corp. 98-1660

v. Remington Arms Co., 133 N.W.2d 129, 134 (Mich. 1965)(holding that a breach of implied warranty claim relating tothe sale of a defective shotgun shell could be establishedwithout proof of negligence on the part of the retailer). Cf.Marcon v. Kmart Corp., 573 N.W.2d 728 (Minn. Ct. App.1998) (affirming a verdict against the non-negligent seller ofa sled, which was found to be defective because it lacked awarning advising riders not to kneel). 

As noted above, Hollister has not argued at any stage of this

litigation that her implied warranty claim requires distincttreatment from her negligence claim. Hollister’s impliedwarranty claim, however, has been properly raised both belowand on appeal—it was simply analyzed under the wrong legalstandard. Ultimately, it is the district court’s responsibility toapply the proper legal standard, regardless of themisconceptions by the parties. See Industrial Development

Bd. v. Fuqua Indus. Inc., 523 F.2d 1226, 1240 (5th Cir. 1975)(“[A] trial court has the ultimate responsibility to apply thelaw to the uncontested facts before it.”); Troupe v. Chicago,D. & G. Bay Transit Co., 234 F.2d 253, 261 (2d Cir. 1956)(Frank, J., concurring) (“A litigant surely has the right toassume that a federal trial judge knows the elementarysubstantive legal rules, long established by the precedents,and that therefore the judge will act accordingly, withoutprompting by the litigant’s lawyer.”). We will thereforeindependently consider and apply the proper analysis toHollister’s implied warranty claim. See Empire Life Ins. Co.v. Valdak Corp., 468 F.2d 330, 334 (5th Cir. 1972) (“Here,however, it is not one of the parties seeking to advance a newtheory, rather, it is this court, in fulfillment of its duty to applythe correct law, that is seeking to put the case back on theright track.”). C. Breach of implied warranty

A plaintiff seeking to recover on a claim against a retailer

for breach of implied warranty must establish two elements:(1) that the product was sold in a defective condition, and (2)that the defect caused her injury. See Piercefield, 133 N.W.2d

98-1660 Hollister v. Dshooting above the shoulders of aexpert burned in its entirety. Holthe shirt would burn quickly and iCPSC’s report on hospitalization fra question of fact for the jury on foreseeability.

As yet another alternative ground 

court opined that Hollister’s own afrom relief based on her alleged Manufacturers, however, have a dthe dangers associated with forproducts they produce. See ShiEquip. Co., 459 N.W.2d 30, 33 (reversing a trial court’s entry of jthe verdict in favor of the manufactthere was evidence suggesting reasonably could have foreseen ththe plaintiff made to the truck). Astudy at least demonstrates the exismaterial fact as to whether accidburner, as Hollister did, is a forese

2. Hollister successfully estab

that the shirt was defectwarning regarding its extre

Hollister’s second basis for as

defective, and therefore sold in brimplied warranty of merchantabilitrequired a warning regarding iDayton Hudson counters that for failure to warn claim, she must firdefectively designed. It therefore inability to establish a prima facinecessarily fatal to her claim. We contrary to Dayton Hudson’s argu

Conceptually, the two claims i

defect. A design defect is the mproduct, which could reasonably 
14 Hollister v. Dayton Hudson Corp. 98-1660

report indicates that kitchen ranges are a common source ofignition in accidents involving burning apparel. In fact, thereport refers to precisely the type of accident that occurred inthe present case:

Kitchen ranges were the second most common ignitionsource. Ignition occurred most frequently when adultswere leaning against or reaching across a range whilewearing shirts/blouses, when children were climbing onor playing with ranges while wearing pajamas, and whenelderly women were cooking while wearing robes orhousecoats. Also included in the report are statistics showing the

number of injuries, by age group, that result from shirts’igniting on stove tops. In concluding that Hollister had notpresented sufficient evidence regarding the magnitude of therisk involved, the district court noted that the CPSC reportwas from 1985, four to five years before Hollister’s motherpurchased the shirt in question. It did not explain, however,why the date of the report invalidates it as evidence. Thedistrict court then analyzed the statistics contained in theCPSC report and determined that there would be 123 injuriesper year to persons in Hollister’s age group that might matchthe severity of the injury that she incurred. It concluded,without citation or explanation, that “these are small numbersindeed.” The district court thus judged the sufficiency of theevidence presented, which is generally a question for the jury,not the court. See Zettle, 998 F.2d at 360. 

The CPSC report also considered the severity of injuries

that result when clothing catches fire: “Over one third of allclothing-related burn victims were hospitalized. This factbecomes dramatic when compared to the 4 percenthospitalization rate for all consumer product-related injuries. . . and the 8 percent reported for all burn injuries.”Furthermore, Hollister presented evidence that the fabric inquestion would ignite upon contact with an electric burnerand be consumed within seconds. In addition to the testcomparing strips of fabric, her videotape shows the flames

98-1660 Hollister v. Dat 134. Hollister contends that defective because it was made dangerously flammable (design dehave carried a warning advising flammability (failure to warn).

1. Hollister failed to establis

design defecta. The district court appl

analysis to Hollister’s design defect

Hollister argues on appeal that th

a higher burden than is required by district court restated the Michigarequiring Hollister to produce evid

(1) that the severity of t

foreseeable by the man

(2) that the likelihood of oc

injury was foreseemanufacturer at tdistribution of the prod

(3) that there was a reasona

design available; 

(4) that the available alte

was practicable; 

(5) that the available an

reasonable alternative have reduced the foreharm posed by defendand

(6) that omission of the 

practicable reasonabdesign rendered defennot reasonably safe.

Our review of the district court’s 

that its restatement of Michigan lapplied by Michigan courts to desi
12 Hollister v. Dayton Hudson Corp. 98-1660

in Reeves v. Cincinnati, Inc., 439 N.W.2d 326, 329 (Mich.

Ct. App. 1989). Steps one and two of the district court’stest—the foreseeability of serious injury and the likelihoodthat injury would occur—echo the language of Reeves, which

held that “a prima facie case of a design defect premised uponthe omission of a safety device requires first a showing of . . .the likelihood of occurrence of the type of accident . . . andthe severity of injuries sustainable from such an accident.”439 N.W.2d at 329.

Steps three, four, and five required Hollister to present

evidence that a reasonable design alternative was available,that it was practicable, and that it would have reduced the riskof the accident at issue in the case. These requirementsparallel the second half of the Reeves test, which calls for “ashowing of alternative safety devices and whether thosedevices would have been effective as a reasonable means ofminimizing the foreseeable risk of danger.” Id.

Finally, step six of the district court’s test, requiring that the

product must be unreasonably dangerous in the absence of thealternative design, simply states the logical conclusion ofsteps one through five. We therefore conclude that the districtcourt applied the correct test in adjudicating Dayton Hudson’smotion for summary judgment based upon design defect.

b. Hollister failed to establish a prima facie

case of design defect

Hollister’s claim of design defect is primarily based upon

the tests conducted by Dr. Hall, in which the exemplar fabric

and fourteen other fabric samples were dragged across a hotburner at a prescribed rate. Those tests indicate that theexemplar fabric was significantly more flammable than otherfabrics. Hollister presented no evidence, however, as to theavailability of alternative fabrics when the shirt wasmanufactured, the cost of manufacturing the shirt with suchfabrics, or the effect of a fabric change upon the wearability,durability, or appearance of the fabric. Her failure to submitsuch evidence is similar to the situation in Owens v. AllisChalmers Corp., 326 N.W.2d 372, 379 (Mich. 1982), where

98-1660 Hollister v. Dthe Michigan Supreme Court affirmverdict for the defendant when information as to the practicability truck that had overturned on its op

In sum, Dr. Hall never presente

design” with any specificity. His that the weight of the fabric shIgnoring for the moment his silence a suggestion, Dr. Hall also admarticulate the exact effect on flammproposed. The district court Hollister’s claims to the extent that shirt’s allegedly defective design. Co., 998 F.2d 358, 362 (6th Cir. 1summary judgment and holding thapresent sufficient evidence concerproposed alternative design for Michigan law). 

c. The district court’s eval

was inconsistent with M

Rather than rest its decision sole

meet the district court’s formulthrough 6 of Michigan’s risk-utility ruled against her on the altern(requirement 1), foreseeability (alleged misuse of the shirt (oaffirmative defenses). Because thwas published, see 5 F.Supp. 2d 5

because we conclude that its rugrounds were erroneous, we discu

In Parts VI.A.1. & 2. of its o

concluded, as a matter of law, that have foreseen either the likelihood Hollister or the severity of injurisuch an accident. Hollister, howevidence to the contrary. A 198statistics on injuries resulting from