1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0021A (6th Cir.)File Name: 00a0021a.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________LAURAHOLLISTER,Plaintiff-Appellant,AMERICANCOMMUNITYMUTUALINSURANCECOMPANY,Intervenor,v.DAYTONHUDSONCORPORATION,Defendant-Appellee.;>198-1660Appeal from the United States District Courtfor the Eastern District of Michigan at Detroit.No. 96-73142—John Feikens, District Judge.Argued: August 4, 1999Decided and Filed: January 13, 20002Hollister v. Dayton Hudson Corp.98-1660*The Honorable James L. Graham, United States District Judge forthe 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 Upon Hollister’spetition for rehearing, the panel is persuaded that the earlier opinionshould be withdrawn and this opinion substituted.Before: SILER and GILMAN, Circuit Judges; GRAHAM,District Judge.*_________________COUNSELARGUED:Steven P. Handler, McDERMOTT, WILL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.1She 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’s98-1660Hollister v. Dayton Hudson Corp.3motion for summary judgment, concluding that Hollister hadnot established a prima facie case of design defect underMichigan law, and that any duty to warn was obviated by theopen and obvious nature of the alleged defect.Contrary to the decision of the district court, we believe thatHollister has adduced sufficient evidence to allow areasonable juror to conclude that the shirt sold by DaytonHudson was defective because of its failure to carry a warningregarding its extreme flammability. Although Hollister hasfailed to show any negligence on Dayton Hudson’s partregarding this alleged defect, she need only establish a primafacie case that the shirt was defective and that it caused herinjuries in order to pursue her claim for breach of impliedwarranty. We thereforeAFFIRMthe district court’s entry ofsummary judgment on Hollister’s negligence claim,REVERSEits entry of summary judgment on Hollister’sbreach of implied warranty claim to the extent that the claimis based upon a failure to warn, andREMANDfor furtherproceedings consistent with this opinion.I. BACKGROUNDA. The accidentIn November of 1995, Hollister was a business student atNorthwestern University in Evanston, Illinois. On November4, 1995, she attended a business-school party with her friendJerome Joliet. She later returned to her apartmentaccompanied by another friend, Diarmuid O’Connell, atapproximately 1:45 a.m. the next morning. According toO’Connell, Hollister was intoxicated when the two left theparty. O’Connell departed from Hollister’s apartment atapproximately 2:10 a.m.Hollister has no memory of subsequent events. The nextthing that she can recall is seeing herself in the mirror atapproximately 9:30 a.m. on November 5. Realizing that shewas injured, Hollister phoned her parents in Michigan.According to Hollister’s parents, she repeated the words “fire,burner, pasta.” Hollister’s parents asked her for the number4Hollister v. Dayton Hudson Corp.98-1660of 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 rearburners 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 wastreated for third-degree burns over fifty-five percent of herbody. She was later transferred to Loyola Hospital in98-1660Hollister v. Dayton Hudson Corp.21on Hollister’s breach of implied warranty claim to the extentthat the claim is based upon a failure to warn, andREMANDfor further proceedings consistent with this opinion.20Hollister v. Dayton Hudson Corp.98-1660jury is entitled to consider any other relevant evidence on theissue.”Howard, 601 F.2d at 138.This last holding is particularly significant because DaytonHudson 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 aprima 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.SeeGlittenberg, 491N.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.SeeM.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. CONCLUSIONFor all of the reasons set forth above, weAFFIRMthedistrict court’s entry of summary judgment on Hollister’snegligence claim,REVERSEits entry of summary judgment98-1660Hollister v. Dayton Hudson Corp.5Chicago, where she stayed until December 21, 1995. Aftertreatment at Loyola, Hollister was transferred to theUniversity of Michigan Medical Center in Ann Arbor,Michigan, where she remained until April 17, 1996.As a result of her burns, Hollister has undergonecomprehensive skin grafting to most of her upper body, aswell as plastic and reconstructive surgery. She remainsprofoundly disfigured. Her medical expenses at the time ofthe district court’s ruling in May of 1998 amounted toapproximately $980,000.B. Procedural backgroundOn March 27, 1996, Hollister’s parents filed suit in theCircuit Court of Wayne County, Michigan. Named asdefendants were Dayton Hudson (the parent company of thedepartment store where the shirt was purchased), RalphLauren (the company that Hollister’s mother originallybelieved was the manufacturer of the shirt), Banana Republic(the retailer of the T-shirt), Victoria’s Secret (the retailer ofthe bra), and General Electric (the manufacturer of the stove).The complaint alleged that the shirt was defective because itwas extremely flammable and because it did not provide awarning of this condition. On July 11, 1996, the case wasremoved to the United States District Court for the EasternDistrict of Michigan on the basis of diversity of citizenship.Pursuant to a July 31, 1997 motion, Hollister was substitutedfor her parents as the plaintiff.On August 1, 1997, the district court held a statusconference with all of the parties. At that time, the courtnoted that in the 16 months that the case had been inexistence, a “whole lot of nothing” had taken place. At thatpoint, Hollister had arranged for no expert witnesses otherthan a consultant who was going to conduct tests of variousfabrics. The court directed Hollister to secure and discloseher experts, pursuant to Rule 26 of the Federal Rules of CivilProcedure, by September 1, 1997. A discovery deadline ofOctober 31, 1997 was also set.6Hollister v. Dayton Hudson Corp.98-1660On September 1, 1997, Hollister submitted reports pursuantto 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 adifferent 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 Republicand 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’scausation 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 exemplarfabric were substantially identical to the shirt that Hollister98-1660Hollister v. Dayton Hudson Corp.19that the robe’s unexpected flammability was a proximatecause of her injuries.See id.at 592.The Fourth Circuit’s decision inHoward v. McCrory Corp.,601 F.2d 133 (4th Cir. 1979), is also instructive. In that case,a products liability action was brought by a mother whoseinfant son was fatally burned when his pajamas and bathrobeinexplicably caught fire. The mother sued the manufacturerand the retailer of the infant’s pajamas, as well as themanufacturer and the retailer of his bathrobe, alleging strictliability, negligence, and breach of implied warranty.Judgment as a matter of law was entered in favor of the tworetailers. The Fourth Circuit reversed for two distinct reasons,both of which are relevant to the instant case.The district court had entered judgment in favor of Kresge,the retailer of the pajamas, because the plaintiff presented noexpert testimony regarding the pajamas’ flammability, onlyoffering eyewitness testimony that the pajamas had ignitedquickly and burned very rapidly. In reversing, the FourthCircuit wrote:It has been held that, even where all the standard testsdemonstrated that a product was not dangerouslyinflammable for use by infants, it is perfectly permissiblefor the jury to find that the product was dangerouslyinflammable from . . . proof that the product “ignitedeasily, (and) burned rapidly and intensely with a highdegree of heat.”Howard, 601 F.2d at 137 (citingLaGorga, 275 F. Supp. at378).McCrory, the retailer of the bathrobe, was granted judgmentnotwithstanding the verdict on the grounds that remnants ofthe robe had been tested and found to meet the standards ofClass I fabrics under the CPSC flammability test. The FourthCircuit reversed this holding as well, reasoning that“[c]ompliance with federal standards, while plainly relevant,is not conclusive on the issue of McCrory’s liability and the18Hollister v. Dayton Hudson Corp.98-1660expert, 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 isdefective—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.InDeffebachv.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 and98-1660Hollister v. Dayton Hudson Corp.7had been wearing at the time of the accident. He thenconducted a test comparing the exemplar fabric with fourteenother fabrics. The test utilized a stove-top electric burner setat 1100-1160 degrees, and involved sweeping 3.5 by 10-inchstrips of the various fabrics across the burner. Hall then timedthe rate of ignition and burning. The exemplar fabric ignitedimmediately, and burned completely within six seconds.Eleven of the fourteen non-exemplar samples failed to igniteat all. The three samples that did ignite were another 100%rayon sample, a rayon-polyester blend (both of which tookabout twelve seconds to burn completely), and a piece ofnewspaper (which burned in four seconds).At the close of discovery, Dayton Hudson moved forsummary judgment. One ground focused upon therequirement that a plaintiff such as Hollister must prove theeffectiveness of a proposed alternative design. In response,Hollister acknowledged that she would not be calling anexpert witness on the effectiveness of an alternative design.She claimed that this was a question of fact for the jury thatdid not require expert testimony. The district courtsubsequently held a hearing on January 5, 1998 to clarifyHollister’s position, stating as follows:THE COURT: —you say that this is so clear, the risk ofsevere injury from a highly flammable fabric is somanifest, that no expert testimony is needed. That— thatreally made me open my eyes. You mean we can simplyimpanel a jury, and you can put on your proof withoutany testimony to show this?. . .MR. HANDLER: We mean it.The district court then presented the parties with a list of sixrequirements necessary to establish a prima facie case ofdesign defect under Michigan law.After briefing by both parties, the district court grantedDayton Hudson’s motion for summary judgment on May 12,1998. Hollister timely filed her notice of appeal to this court.8Hollister v. Dayton Hudson Corp.98-1660II. ANALYSISA. Standard of reviewWe review de novothe district court’s grant of summaryjudgment.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.SeeFED.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 MatsushitaElec. 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’sclaims based on negligence, but erred in failing toseparately consider Hollister’s breach of impliedwarranty claimHollister’s original complaint asserts two distinct causes ofaction—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 thisdistinction to the court’s attention. Indeed, in her appellate98-1660Hollister v. Dayton Hudson Corp.17exercise reasonable care to inform consumers of the danger.SeeGlittenberg, 491 N.W.2d at 212-13 (holding that thedangers of diving headfirst into a manufacturer’saboveground swimming pool were open and obvious). If aproduct’s danger is open and obvious to a reasonableconsumer, the manufacturer has no duty to warn.See id.at213. In such a case, a retailer who sells the product cannot befound liable for breach of implied warranty because theproduct is not defective.The district court disposed of Hollister’s failure to warnargument in a cursory manner, concluding that the dangerinherent in having clothing come into contact with a hot stoveis “open and obvious.” We find this analysis to beoversimplified. It is true that a reasonable person wouldknow that clothing is flammable; the question, however, isone of degree.See Michigan Mut. Ins. Co. v. HeatilatorFireplace, 366 N.W.2d 202, 205 (Mich. 1985) (holding thateven if a reasonable consumer would know that covering thevents on a fireplace presented a “vague danger,” a jury mightstill reasonably find that a warning was required to give theconsumer “a full appreciation of the seriousness of the lifethreatening risks involved”). A consumer might reasonablybe expected to know that a rayon shirt will catch fire moreeasily and burn more quickly than a shirt made of heavyflannel. An ordinary consumer would have no way ofknowing, however, that a particular rayon shirt wassubstantially more combustible and flammable than anotherrayon shirt.Cf. LaGorga v. Kroger, 275 F. Supp. 373 (W.D.Penn. 1967) (denying a retailer’s motion for judgment as amatter of law where the plaintiff charged the retailer withbreach of implied warranty for selling him a jacket that wasunusually flammable and lacked a warning, noting that “[t]hepublic cannot be expected to possess the facilities or technicalknowledge to apprehend inherent or latent dangers”),aff’d,407 F.2d 671 (3d Cir. 1969).Hollister presented credible evidence that the exemplarfabric burned explosively, like newspaper, and that othercomparable fabrics did not. In tests conducted by Hollister’s16Hollister v. Dayton Hudson Corp.98-1660safer 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.SeeRestatement(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 towarn claims are governed by distinct analyses.See Gregoryv. CincinnatiInc., 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 to98-1660Hollister v. Dayton Hudson Corp.9brief, she incorrectly states that “[u]nder Michigan law,negligence and breach of warranty claims for design defect inproduct liability cases are judged by the same standard,i.e., apure negligence risk-utility test.” Thus, Hollister has arguedher two causes of action as if the negligence standardgoverned both.Hollister’s and the district court’s confusion as to theappropriate legal standard most likely stems from the factthat, in cases where a seller is also the manufacturer,Michigan courts have observed that claims of negligence andbreach of implied warranty are, for all intents and purposes,identical. The reason for this confluence is that a plaintiffalleging breach of implied warranty on the part of a sellermust show that the purchased product was defective. Thatshowing, in turn, requires proof that the product’smanufacturer acted negligently, typically by omitting a safetyfeature or in failing to give warning of a latent danger. A suitfor breach of implied warranty against a seller who is also themanufacturer will therefore require the same showing ofnegligence on the defendant’s part as an ordinary productsliability suit against a manufacturer.See Prentis v. Yale Mfg.Co., 365 N.W.2d 176, 186 (Mich. 1984);Smith v. E. R.Squibb & Sons, Inc., 245 N.W.2d 52, 56 (Mich. Ct. App.1976),aff’d,273 N.W.2d 476 (Mich. 1979)When the defendant is anon-manufacturing seller,however, the two analyses diverge.See Prentis, 365 N.W.2dat 186 n.30 (“Thus . . . the only time the distinction betweenimplied warranty and negligence may have any significancein design defect cases, is in determining the liability of a sellerwho is not also the manufacturer of a product.”). Because theexistence of a defect is generally determined by the negligentconduct of the manufacturer, a retailer may be held liable forbreaching its implied warranty of merchantability by sellinga defective product, even if the retailer’s conduct is whollyfree from negligence.See Johnson v. Chrysler Corp., 254N.W.2d 569, 571 (Mich. Ct. App. 1977) (reversing a directedverdict in favor of the retailer of a defective power punchpress, even though the retailer was not negligent);Piercefield10Hollister v. Dayton Hudson Corp.98-1660v. 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 thislitigation 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 DevelopmentBd. 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 warrantyA plaintiff seeking to recover on a claim against a retailerfor 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.2d98-1660Hollister v. Dayton Hudson Corp.15shooting above the shoulders of an exemplar shirt that herexpert burned in its entirety. Hollister’s demonstration thatthe shirt would burn quickly and intensely, coupled with theCPSC’s report on hospitalization from clothing burns, createsa question of fact for the jury on the issues of severity andforeseeability.As yet another alternative ground for its holding, the districtcourt opined that Hollister’s own actions would preclude herfrom relief based on her alleged misuse of the clothing.Manufacturers, however, have a duty to warn consumers ofthe dangers associated with foreseeable misuses of theproducts they produce.See Shipman v. Fontaine TruckEquip. Co., 459 N.W.2d 30, 33 (Mich. Ct. App. 1990)(reversing a trial court’s entry of judgment notwithstandingthe verdict in favor of the manufacturer of a feed truck, wherethere was evidence suggesting that the manufacturerreasonably could have foreseen the unsafe modification thatthe plaintiff made to the truck). As noted above, the CPSCstudy at least demonstrates the existence of a genuine issue ofmaterial fact as to whether accidentally brushing a stoveburner, as Hollister did, is a foreseeable misuse of clothing.2. Hollister successfully established a prima facie casethat the shirt was defective because it lacked awarningregarding its extreme flammabilityHollister’s second basis for asserting that the shirt wasdefective, and therefore sold in breach of Dayton Hudson’simplied warranty of merchantability, is her claim that the shirtrequired a warning regarding its extreme flammability.Dayton Hudson counters that for Hollister to make out afailure to warn claim, she must first show that the shirt wasdefectively designed. It therefore maintains that Hollister’sinability to establish a prima facie case of design defect isnecessarily fatal to her claim. We find that Michigan law iscontrary to Dayton Hudson’s argument.Conceptually, the two claims identify different types ofdefect. A design defect is the mark of a poorly designedproduct, which could reasonably have been designed in a14Hollister v. Dayton Hudson Corp.98-1660report 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 thenumber 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 injuriesthat 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 flames98-1660Hollister v. Dayton Hudson Corp.11at 134. Hollister contends that the shirt in question wasdefective because it was made of a fabric that wasdangerously flammable (design defect) and because it shouldhave carried a warning advising wearers of its extremeflammability (failure to warn).1. Hollister failed to establish a prima facie case ofdesign defecta. The district court applied the properanalysis to Hollister’s allegations ofdesign defectHollister argues on appeal that the district court held her toa higher burden than is required by the Michigan courts. Thedistrict court restated the Michigan law on design defect asrequiring Hollister to produce evidence showing:(1) that the severity of the injury wasforeseeable by the manufacturer;(2) that the likelihood of occurrence of herinjury was foreseeable by themanufacturer at the time ofdistribution of the product;(3) that there was a reasonable alternativedesign available;(4) that the available alternative designwas practicable;(5) that the available and practicablereasonable alternative design wouldhave reduced the foreseeable risk ofharm posed by defendant’s product;and(6) that omission of the available andpracticable reasonable alternativedesign rendered defendant’s productnot reasonably safe.Our review of the district court’s formulation convinces usthat its restatement of Michigan law was correct. The testapplied by Michigan courts to design defect claims is set out12Hollister v. Dayton Hudson Corp.98-1660inReeves 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 ofReeves, whichheld 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 presentevidence 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 theReevestest, 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 theproduct 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 faciecase of design defectHollister’s claim of design defect is primarily based uponthe tests conducted by Dr. Hall, in whichthe exemplar fabricand 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 inOwens v. AllisChalmers Corp.,326 N.W.2d 372, 379 (Mich. 1982), where98-1660Hollister v. Dayton Hudson Corp.13the Michigan Supreme Court affirmed the grant of a directedverdict for the defendant when the plaintiff offered noinformation as to the practicability of a seatbelt on a forklifttruck that had overturned on its operator.In sum, Dr. Hall never presented a “proposed alternativedesign” with any specificity. His only recommendation wasthat the weight of the fabric should have been heavier.Ignoring for the moment his silence on the practicality of sucha suggestion, Dr. Hall also admitted “that he could notarticulate the exact effect on flammability of the changes” heproposed. The district court thus properly dismissedHollister’s claims to the extent that they were premised on theshirt’s allegedly defective design.See Zettle v. Handy Mfg.Co.,998 F.2d 358, 362 (6th Cir. 1993) (affirming a grant ofsummary judgment and holding that the plaintiff had failed topresent sufficient evidence concerning the effectiveness of aproposed alternative design for a power washer underMichigan law).c. The district court’s evaluation of other factorswas inconsistent with Michigan lawRather than rest its decision solely on Hollister’s failure tomeet the district court’s formulation of requirements 3through 6 of Michigan’s risk-utility test, the district court alsoruled against her on the alternate grounds of severity(requirement 1), foreseeability (requirement 2), and thealleged misuse of the shirt (one of Dayton Hudson’saffirmative defenses). Because the district court’s opinionwas published,see5 F.Supp. 2d 530 (E.D. Mich. 1998), andbecause we conclude that its rulings on these alternategrounds were erroneous, we discuss each of them below.In Parts VI.A.1. & 2. of its opinion, the district courtconcluded, as a matter of law, that a manufacturer could nothave foreseen either the likelihood of the accident suffered byHollister or the severity of injuries that would result fromsuch an accident. Hollister, however, presented credibleevidence to the contrary. A 1985 CPSC report sets forthstatistics on injuries resulting from apparel catching fire. The