Rule 206 ELECTRONIC CITATION: 2004 FED App. 0192P (6th Cir.) File Name: 04a0192p.06… v. Daisy Manufacturing Co., Inc.

*The Honorab le Richard D. Cudahy, Circuit Judge of the United
States Court of Appeals for the Seventh Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0192P (6th Cir.)
File Name: 04a0192p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RANDY SWIX, PAMELA SWIX,
Co-Conservators of the Estate
of Aaron Ray Swix,
Plaintiffs-Appellants,
v.
DAISY MANUFACTURING CO.,
INC.,
Defendant-Appellee.
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No. 02-2154
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-70152—George E. Woods, District Judge.
Argued: March 11, 2004
Decided and Filed: June 23, 2004
Before: MARTIN, CLAY, and CUDAHY,* Circuit Judges.
2 Swix, et al. v. Daisy Mfg. Co. No. 02-2154
_________________
COUNSEL
ARGUED: Clark Shanahan, SHANAHAN & HOY,
Owosso, Michigan, for Appellants. Jack O. Kalmink,
CLARK HILL PLC, Detroit, Michigan, for Appellee.
ON BRIEF: Clark Shanahan, SHANAHAN & HOY,
Owosso, Michigan, for Appellants. Jack O. Kalmink, Paul
C. Smith, CLARK HILL PLC, Detroit, Michigan, for
Appellee.
_________________
OPINION
_________________
RICHARD D. CUDAHY, Circuit Judge. Your mother
refused to buy you a BB gun, warning that “you’ll shoot your
eye out.” Apparently she was right to be concerned. Based
on the facts of this case and a review of other cases on the
topic, it seems that BBs are attracted to children’s eyes as
politicians are attracted to television cameras. After losing
the use of one eye, Aaron Swix together with his parents
brought this products liability action against Daisy, the
manufacturer of the air rifle which was used to shoot him,
alleging that the air rifle was defectively designed. The
district court dismissed Swix’s complaint. This appeal
followed.
I
In May of 1999, Albert Carl Porrit purchased a Daisy
Powerline 856 air rifle for his minor grandson, Nicholas
Porritt. The air rifle was kept in a locked gun cabinet. On
April 20, 2000, Nicholas, then age eleven, removed the
loaded air rifle from the gun cabinet without permission.
According to his affidavit, Nicholas took the safety lock off
the gun and checked to see if the air rifle was empty. App. at

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No. 02-2154 Swix, et al. v. Daisy Mfg. Co. 3
45. He then shook the rifle with the barrel facing down
toward the floor. He pulled the bolt back and tilted the gun
towards himself to see if there was a BB inside the rifle. He
believed at this point that the rifle was empty. He
subsequently pumped the rifle about five times and shot it at
the floor. Only air came out. He then took the air rifle to the
basement, pumping the rifle as he walked. When he got to
the basement, he began to watch a movie and held the air rifle
in his lap. Halfway through the movie, he picked up the air
rifle, pointed it at his ten-year old friend Aaron Swix and “the
air rifle went off.” Id. According to the plaintiffs, the result
was painful and permanent injury to Aaron Swix and virtually
complete loss of sight in his left eye.
On January 14, 2002, Aaron Swix and his parents filed a
products liability suit against Daisy Manufacturing Company,
in the Eastern District of Michigan, seeking one million
dollars and alleging claims of defective design and failure to
warn of a known danger. In their amended complaint, the
plaintiffs argued that “[t]he BB storage magazine in the model
was dangerously and defectively designed [in that] . . . it
allowed a BB to become lodged in the forward portion,
between the barrel and interior of the outer barrel assembly
. . . thus misleading the operator to believe . . . the air rifle, to
be completely empty of BBs, [even after pumping and firing],
when, in fact, a BB would still be present in the magazine.”
App. at. 8.
On March 14, 2002, Daisy filed a motion to dismiss the
complaint arguing that a gun is a “simple tool” under
Michigan law and the dangers of pointing it at another person
are “open and obvious.” On April 18, 2002, plaintiffs filed a
motion for partial summary judgment on the issue of Daisy’s
liability but apparently they failed to file a timely
memorandum in support. On August 14, 2002, the parties
appeared at a telephonic hearing before Magistrate Judge
Steven Pepe. At that hearing, Magistrate Judge Pepe granted
the plaintiffs’ motion to amend their complaint to include the
allegation that “[d]efendant’s primary marketing target (and
4 Swix, et al. v. Daisy Mfg. Co. No. 02-2154
principle [sic] consumers) was/were children and young
adults” and that “[t]he model was particularly dangerous and
defective when placed in the hands of minor children.” App.
at 111, 113. The magistrate stated that “Defendant’s motion
to dismiss will apply to the amended complaint.” App. at
113.
When the district court granted the defendant’s motion to
dismiss one week later, on August 22, 2002, however, it gave
no indication that it was aware of the recent amendment to the
complaint. App. at 14-23. In oral argument, the parties
agreed that Judge Woods may have been unaware of the
amendment at the time he granted the motion to dismiss. In
the same order, Judge Woods denied plaintiff’s motion for
partial summary judgment as moot. This appeal followed.
II
The parties do not dispute that Michigan state law applies
in this diversity suit brought under 28 U.S.C. § 1332. The
task of this Court, sitting in diversity, is to apply the same law
as would be applied by Michigan state courts. See Erie R.R.
v. Tompkins, 304 U.S. 64 (1938). Where a state’s highest
court has spoken to an issue, we are bound by that decision
unless we are convinced that the high court would overrule it
if confronted with facts similar to those before us. See
Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198 (1956).
Where a state appellate court has resolved an issue to which
the high court has not spoken, “we will normally treat [such]
decisions . . . as authoritative absent a strong showing that the
state’s highest court would decide the issue differently.” In
re Akron-Cleveland Auto Rental, Inc., 921 F.2d 659, 662 (6th
Cir. 1990).
The district court dismissed Swix’s complaint in this case
finding that he had failed to establish that Daisy owed Swix
a duty of care. App. at 23. Under Michigan law, both a
failure to warn claim and a defective design claim require a
plaintiff to establish that the defendant owed him a duty of

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No. 02-2154 Swix, et al. v. Daisy Mfg. Co. 5
care. See Davis v. McCourt, 226 F.3d 506, 511 (6th Cir.
2000); Kirk v. Hanes Corp. of North Carolina, 16 F.3d 705
(6th Cir. 1994). There is also a defense under Michigan law
to the duty requirement in a failure to warn and in a defective
design claim known as the “simple tool rule.” See Fisher v.
Johnson Milk Co., Inc., 383 Mich. 158, 174 N.W.2d 752
(Mich. 1970); Kirk, 16 F.3d at 705.
In Fisher, a failure to warn case, a milkman sold a patent
attorney a wire carrier made to carry four half-gallon bottles
of milk. Id. at 159. On arriving home from the market with
his carrier containing four milk bottles, the attorney slipped
on some ice in such a manner that the bottom of the carrier
struck the sidewalk, causing the bottles to break. Id. at 160.
He extended a hand in order to break his fall and his palm
landed on a piece of broken bottle, severely injuring his hand.
The attorney brought suit against the manufacturer of the wire
carrier. The court in Fisher found that “a manufacturer owes
no duty to warn of an open and obvious danger associated
with the use of a simple [tool].” Davis, 226 F.3d at 511
(discussing Fisher). The parties do not dispute that this is a
correct statement of law with respect to a failure to a warn
claim.
A. Is the “simple tool” rule an absolute defense to a
defective design claim?
The parties do seem to disagree, however, whether the fact
that a product is deemed a “simple tool” and the danger is
“open and obvious” is an absolute defense to a defective
design claim or whether the obviousness of a danger is merely
one factor in the analysis of whether the risks are
unreasonable in light of the foreseeable injuries. We agree
with virtually every Michigan court which has opined on the
matter, all of which have suggested that the obviousness of a
danger is merely one factor in the analysis of whether the
risks are unreasonable in light of the foreseeable injuries.
See, e.g., Owens v. Allis-Chalmers Corp., 414 Mich. 413,
425, 326 N.W.2d 372, 377 (Mich. 1982) (“As in Fisher, the
6 Swix, et al. v. Daisy Mfg. Co. No. 02-2154
obviousness of the risks that inhere in some simple tools or
products is a factor contributing to the conclusion that such
products are not unreasonably dangerous. The test, however,
is not whether the risks are obvious, but whether the risks
were unreasonable in light of the foreseeable injuries”);
Cacevic v. Simplimatic Eng’g Co., 241 Mich. App. 717, 725,
617 N.W.2d 386, 390-92 (Mich. Ct. App. 2000), vacated in
part on other grounds, 463 Mich. 997, 625 N.W.2d 784
(Mich. 2001) (“[A] manufacturer in a case alleging design
defects is not absolved of liability simply because the danger
associated with the product (simple or nonsimple) is open and
obvious.”); Boumelhem v. BIC Corp., 211 Mich. App. 175,
181, 535 N.W.2d 574, 577-78 (Mich. Ct. App. 1995) (holding
the same relying, inter alia, on Owens and Glittenberg v.
Doughboy Recreational Indus., 441 Mich. 379, 491 N.W.2d
208 (Mich. 1992)); Adams v. Perry Furniture Co., 198 Mich.
App. 1, 14, 497 N.W.2d 514, 520 (Mich. Ct. App. 1993)
(“The test in design defect cases concerning simple tools is
whether the risks are unreasonable in light of the foreseeable
injuries.”), overruled on other grounds by Allied Elec. Supply
Co., Inc. v. Tenaglia, 461 Mich. 285, 602 N.W.2d 572 (Mich.
1999); Restatement (Third) of Torts: Prod. Liab. § 2 (1998)
(noting that “[a] strong majority of courts [including
Michigan in Owens] have rejected the ‘open and obvious’ . . .
rule as an absolute defense . . .[and] [a]cademic commentators
have been almost unanimous in their criticism of the . . .
rule.”). The Supreme Court of Michigan has explained why
obvious dangers should be treated differently in the design
defect context than in the failure to warn context. See
Glittenberg, 441 Mich. at 394, 491 N.W.2d at 215. In
Glittenberg, the Court explained:
In the design defect context, obvious risk may
unreasonably breach the duty to adopt a design that
safely and feasibly guards against foreseeable misuse.
Because the manufacturer’s liability for choice of design
is not determined solely by looking at the obvious nature
of the alleged defect, obviousness of the danger does not
preclude the possibility that an alternative design could

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No. 02-2154 Swix, et al. v. Daisy Mfg. Co. 7
reduce the risk of harm at a cost and in a manner that
maintains the product[’s] utility.
In the failure to warn context, the obvious nature of the
simple product’s potential danger serves the core purpose
of the claim, i.e., it functions as an inherent warning that
the risk is present. Stated otherwise, if the risk is
obvious from the characteristics of the product, the
product itself telegraphs the precise warning that
plaintiffs complain is lacking.
Id. (citations omitted). In other words, there is no need to
warn of a danger where the danger is obvious, but in a design
defect case, the court must also consider whether a
manufacturer should have created the danger in the first place.
For instance, the danger associated with a rag-doll with steak
knives for arms (“Steak Knife Sally”) may be quite obvious,
but it is equally clear that the risks associated with such a
design choice far outweigh the utility.
Our opinion in Kirk is in accord. See 16 F.3d 705. In Kirk,
we were not asked to decide whether the fact that a danger is
“open and obvious” is an absolute defense to a defective
design claim or whether the obviousness of a danger is merely
one factor in the analysis of whether the risks are
unreasonable in light of the foreseeable injuries. Instead, the
question presented to this Court was whether the “simple tool
rule” applies in design defect cases at all. Id.
Nonetheless, in deciding whether the simple tool rule
applies to design defect cases, our discussion provided insight
into the question whether the open and obvious nature of a
danger is merely one factor to be considered or is dispositive.
Id. Specifically, our opinion addressed whether Fisher, which
was argued to have established the rule that the obviousness
of a danger is dispositive, was overruled by Prentis v. Yale
Manufacturing Co., 421 Mich. 670, 365 N.W.2d 176 (Mich.
1984), which was argued to have replaced the dispositive rule
with a multi-factor “reasonableness” analysis. Id. We
8 Swix, et al. v. Daisy Mfg. Co. No. 02-2154
1W e note that there is a great deal of confusion in the language of
many opinions, including Kirk, which have bearing on the question
whether the simple tool rule is dispo sitive or whether a reaso nableness
analysis applies. We believe that this confusion has be en created, in part,
because courts have conflated this question with the separate and
potentially independent question of whether such cases can be decided as
a matter o f law. If each question is considered separately, however, it
appears that there is no t much disagreement. As will be discussed, it is
clear that a reasonableness analysis applies but that the nature of this
analysis will not prevent a design defect claim from being decide d as a
matter of law where reasonable minds could not disagree as to the
outco me.
concluded that Prentis was actually consistent with Fisher
and that both cases found that the obviousness of the danger
was simply one factor in the reasonableness analysis. Id. at
708 (“Even though Fisher was decided prior to Prentis, it also
applied a ‘pure negligence’ standard . . . . While the risks that
glass bottles will break or that broken glass might injure
someone are inarguably foreseeable, the court [in Fisher]
determined that such risks, as a matter of law, were not
unreasonable given the obvious nature of the danger and the
simple nature of the product.”) (emphasis in original). Kirk
then applied the same reasonableness test of Prentis and
Fisher to a Bic lighter to conclude that no jury— “in light of
the fact that the danger of lighters is obvious to their intended
users—could find that these lighters pose an unreasonable
risk of harm.” Id. at 710 (emphasis in original). Therefore,
Kirk suggests that the test is not simply whether the danger is
“open and obvious,” but instead whether the risks were
unreasonable in light of the foreseeable injuries. Id. at 709
(“Were we to reject Fisher and Adams, as Kirk argues, we
would have to hold that the determination of whether a
particular design presents an unreasonable risk of foreseeable
injury may never be resolved by the court on summary
judgment.”); see also id. at n.5.1
Daisy argues that the “open and obvious” nature of a
danger is dispositive based on Mallard v. Hoffinger Industries
Inc., 222 Mich. App. 137, 564 N.W.2d 74 (Mich. Ct. App.

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No. 02-2154 Swix, et al. v. Daisy Mfg. Co. 9
2Judge Kelly, in his concurrence in Ma llard, supported the view that
a “reaso nableness” analysis should be ap plied in design defect cases
involving simple tools. See Ma llard, 222 Mich. App. at 145, 564 N.W.2d
at 78 (Kelly, J., concurring). Judge Kelly stated, “I write separately
because I question the analysis in Fisher. Even where the product is a
simple one, a manufacturer should be held to a standard of reasonable
care. The obviousness of the risk is only one factor that should be
considered.” Id.
3Ma llard argues that the court in Glittenberg could not be endorsing
a reasonableness analysis in design defect cases, despite its clear
language, because it expressly noted that its holding was not a departure
from Ow ens. Ma llard, 222 Mich. App. at 142, 564 N.W .2d at 77. The
significance of this fact is baffling given that Ow ens found that the
app licable test is “whether the risks were unreasonable in light of the
foreseeable injuries.” Owens, 414 M ich. at 425, 326 N.W.2d at 377.
Ma llard’s response to our criticism is that the court in Owens too could
not be endorsing a reasonableness analysis in design defect cases, d espite
its arguably even clearer language, because it expressly ratified Fisher.
Mallard, 222 M ich. App. at 142 n.5, 564 N.W .2d at 77 n.5. However,
Fisher involve d a failure to warn claim rather than a design defect claim
1997).2 We find the reasoning of Mallard, however, to be
unpersuasive. In Mallard, the Court discounted the guidance
of the Michigan Supreme Court, noting that “[w]hile we agree
with plaintiffs that the Supreme Court’s language in
Glittenberg appears to suggest that the open and obvious
nature of the danger will not preclude any design defect
claims, we conclude that the Court was discussing general
principles of design defect claims and not their applicability
to simple products.” See Mallard, 222 Mich. App. at 142,
564 N.W.2d at 77. We are at a loss to see how the court in
Mallard could find that the Supreme Court was excluding
simple products from its discussion of design defect claims,
given that it held that “[i]n the design defect context, obvious
risk may unreasonably breach the duty to adopt a design that
safely and feasibly guards against foreseeable misuse . . .
[while][i]n the failure to warn context, the obvious nature of
the simple product’s potential danger serves the core purpose
of the claim.” Glittenberg, 441 Mich. at 394, 491 N.W.2d at
215 (quoted in full supra at ____).3 Mallard also discounts
10 Swix, et al. v. Daisy Mfg. Co. No. 02-2154
and in any case, as our discussion of Kirk demonstrates, Fisher is not
inconsistent with the reasonableness analysis discussed in Ow ens. See
supra at ____. Therefore, we find that the chain of tenuous inferences
Ma llard uses to d iscount the clea r langua ge of the Michigan Supreme
Court is unpersuasive.
the relevant discussion in Owens and Glittenberg as dicta.
Mallard, 222 Mich. App. at 141-43, 564 N.W.2d at 77-78.
As we have held, dicta can be of value in determining state
law. See Kirk, 16 F.3d at 709. This is especially true here,
where we have strong dicta from a variety of Michigan courts,
including the state’s highest court, all making the same point.
Finally, we note that Mallard was decided prior to Cacevic
and without any apparent consideration of Boumelhelm.
Therefore, for the reasons discussed supra, we find that the
fact that a product may be a “simple tool” is not dispositive in
a design defect case—the obviousness of a danger is merely
one factor in the analysis of whether the risks are
unreasonable in light of the foreseeable injuries. The fact that
a multi-factor analysis may be involved, however, will not
prevent a defective design claim involving a simple tool from
being decided as a matter of law where reasonable minds
could not differ as to the outcome. See Kirk, 16 F.3d at 709
(noting the appropriateness of summary judgment “where the
facts were clear and [there was] no genuine dispute as to the
reasonableness of the manufacturer’s conduct”); Glittenberg,
411 Mich. at 398-99, 491 N.W.2d at 217 (noting, in the
context of a failure to warn claim, that a jury must consider
the obviousness of the risk only “if reasonable minds could
differ” with respect to the outcome); Boumelhelm, 211 Mich.
at 183, 535 N.W.2d at 578 (noting the propriety of the risk-
utility test but affirming grant of summary judgment under
the circumstances); Adams, 198 Mich. App. at 14, 497
N.W.2d at 520 (same); Restatement (Third) of Torts: Prod.
Liab. § 2 (1998) (“A court may direct a verdict when it is
convinced that, given the obviousness of the danger, it is not
reasonable to require the adopting of an alternative design.”).

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No. 02-2154 Swix, et al. v. Daisy Mfg. Co. 11
In sum, whether the danger associated with a simple tool is
“open and obvious” will determine whether a manufacturer
owes a duty to warn and is also an important factor in
deciding a design defect claim. This inquiry requires us to
address two questions. First, is a Daisy air rifle a “simple
tool” under Michigan law? Second, if so, is the danger
alleged to be associated with a Daisy air rifle “open and
obvious”?
B. Is an air rifle a “simple tool”?
Michigan caselaw does not provide a clear test for
determining whether a product is a “simple tool.” However,
the 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.
Davis, 226 F.3d at 511-12. For example, courts have found
hammers, knives, gas stoves, axes, buzz saws, propeller
driven airplanes, trampolines and backyard pools to be simple
tools. Id. We have also found guns to be simple tools. Id.;
see also Treadway v. Smith & Wesson Corp., 950 F. Supp.
1326, 1335-36 (E.D. Mich. 1996) (holding that a .38 caliber
revolver is a simple tool). As far as we are aware, no
Michigan court has specifically considered whether an air
rifle or BB gun, as opposed to a firearm, is a “simple tool.”
Fortunately, this is the easier of the two questions which we
must answer. Swix does not argue that an air rifle is more
“highly mechanized” than other guns. Similarly, the intended
use of an air rifle does not appear to place the user in a
significantly different position than users of firearms. In
short, Swix’s complaint does not even attempt to distinguish
an air rifle from a firearm in any way relevant to the
determination of whether it is a “simple tool.” Although
Swix argues that an air rifle can mislead the operator into
believing it is empty when it is actually loaded, we have noted
the same to be true of a firearm. See Davis, 226 F.3d at 512.
Therefore, we agree with the district court that Swix has
12 Swix, et al. v. Daisy Mfg. Co. No. 02-2154
4According to the affidavit of W illiam F. K itzes, Swix’s expert, a
September 1975 study commissioned by Daisy found that the median age
of purchasers of Daisy Power Line guns was twelve years old. App. at
91.
failed to demonstrate that an air rifle is anything but a “simple
tool.”
C. Is the danger alleged here to be associated with a Daisy
air rifle “open and obvious”?
The second question, whether the danger associated with a
Daisy air rifle is “open and obvious,” is more difficult. In
answering this question, “[t]he focus is the typical user’s
perception and knowledge of whether the relevant condition
or feature that creates the danger associated with use is fully
apparent, widely known, commonly recognized, and
anticipated by the ordinary user or consumer.” Glittenberg,
411 Mich. at 391-92, 419 N.W.2d at 213 (emphasis added);
Adams, 198 Mich. App. at 12-13, 497 N.W.2d at 519 (same);
Kirk, 16 F.3d at 710 (finding that the danger of lighters is
obvious “to their intended users”); Prosser & Keeton, Torts,
§ 96, 686-87 (5th ed. 1984) (“[C]ourts have usually meant by
‘obvious danger’ a condition that would ordinarily be seen
and the danger of which would ordinarily be appreciated by
those who would be expected to use the product.”).
In this case, Swix amended his complaint one week before
the district court granted Daisy’s motion to dismiss to allege
that “[d]efendant’s primary marketing target (and principle
[sic] consumers) was/were children and young adults.” App.
at 111, 113. In essence, Swix has alleged that the typical or
intended users of the Daisy air rifle are children.4 We believe
that the district court was unaware of this amendment at the
time it granted the defendant’s motion to dismiss, which may
explain its holding.
This allegation is crucial in that it distinguishes this case
from every Michigan case which holds that the dangers

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No. 02-2154 Swix, et al. v. Daisy Mfg. Co. 13
associated with guns or other products intended for adults
were “open and obvious.” These cases all applied an
“objective reasonable adult standard,” not because it was an
adult who was using the product which caused injury, but
because the product in question was intended for and typically
used by adults. See Treadway, 950 F. Supp. at 1336
(applying an “objective and reasonable adult standard” in a
products liability case involving a gun); Adams, 198 Mich.
App. at 13, 497 N.W.2d at 519 (“Notwithstanding Bic’s
acknowledgment that it was foreseeable . . . that lighters could
get into and were getting into the hands of children, the
typical user of a lighter is an adult.”); Kirk, 16 F.3d at 710
(noting that lighters are “manufactured for and sold to, adult
users . . . . [In contrast,] [a] manufacturer who bypasses
adults, upon whom the law ordinarily places responsibility,
and markets a simple, but dangerous, tool directly to children
may not avoid liability on the ground that the child ‘should
have known better.’”).
If the typical user of a Daisy air rifle is a child, which we
must presume to be true on a motion to dismiss, an objective
reasonable child standard must apply. See Kirk, 16 F.3d at
710; Moning v. Alfono, 400 Mich. 425, 448-49, 254 N.W.2d
759, 769 (Mich. 1977) (“One has no right to demand of a
child, or of any other person known to be wanting in ordinary
judgment or discretion, a prudence beyond his years or
capacity.”); Sherk v. Daisy-Heddon, 285 Pa. Super. 320, 427
A.2d 657 (Pa. Super. Ct. 1981) (applying a reasonable child
standard to a products liability case involving a Daisy air
rifle), vacated on other grounds, 498 Pa. 594, 450 A.2d 615
(Pa. 1982); Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107,
119 (3d Cir. 1992) (applying Sherk); cf. Mallard v. Hoffinger
Indus., Inc., 210 Mich. App. 282, 286, 533 N.W.2d, 13 (Mich.
Ct. App. 1995), vacated in part on other grounds, 451 Mich.
884, 549 N.W.2d 573 (Mich. 1996) (“Because the
determination of the obvious nature of the danger is an
objective one that focuses on the typical pool user . . . we are
unable to distinguish this case from Glittenberg on the basis
of the victim’s age.”); Restatement (Third) of Torts: Prod.
14 Swix, et al. v. Daisy Mfg. Co. No. 02-2154
5Daisy also makes the argument that it had no duty to warn in this
case as a matter of law, based on Ma llard, in which the court mentioned
that “if a child is capable of understanding a warning, the dangerous
condition would be obvious to the child, rendering the warning
unnecessary.” 210 Mich. App. at 285-86, 533 N.W.2d at 2; Opp. Br. at
20-21. This argument is without merit. The court in Ma llard did not
establish a general rule that there is no duty to warn children. The point
Ma llard was making was context specific. In Ma llard, a young child
dived into a p ool and hit his head on the bottom. The co urt app arently
believed that the danger was so open and obvious in that case that any
child old enough to understand the warning would necessarily be capab le
of perceiving the danger on his o wn. In contrast, it is quite possible that
a twelve year old might not understand that an “empty” B B gun could still
discharge without an actual warning to such effect. In any case, given
Liab. § 2 (1998) (“In some contexts, products intended for
special categories of users, such as children, may require
more vivid and unambiguous warnings.”). “The test to
determine whether a danger is obvious is an objective one, not
dependent upon the actual knowledge of the user, or his actual
awareness of the danger. It is the knowledge and realization
of the danger that would be possessed by the ordinary
consumer who purchases or uses the product . . . . If the
product is one customarily used by children, the danger must
be one which children would be likely to recognize and
appreciate in order to prevent them from recovering for a
product related injury on the grounds that the danger was
open and obvious.” W. Kimble & R. Lesher, Products
Liability § 196 (1979).
Therefore the question presented here is whether the
reasonable child of whatever age the typical user of a Daisy
air rifle is determined to be would know that it would be
dangerous to aim the rifle at another and click the trigger,
even after going through the process of emptying and testing
the rifle that Porritt allegedly went through in this case.
Given that this question has not yet been answered by any
Michigan court and given that reasonable minds could differ
as to the answer, we believe this question is not particularly
appropriate for determination as a matter of law.5 See, e.g.,

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No. 02-2154 Swix, et al. v. Daisy Mfg. Co. 15
that the typical user of a pool is not a young child, the court in Ma llard
applied a reasonable adult standard and therefore the case is not
app licable here. Id. at 13.
6W e note that in Me nard v. Newh all, 135 Vt. 53, 55, 373 A.2d 505,
507 (Vt. 1977), the court stated: “A BB gun which is neither defectively
designed nor manufactured is not dangerous beyo nd that which would be
contemplated by the ordinary consumer with the ordinar y knowledge
common to the community. A warning by the defendant Daisy that a BB
gun, if fired at a person, could injure an eye, is nothing that even a seven-
year-old child does not already know.” Id. However, in Menard, there
was no allegation that the air rifle was defectively designed nor was it
argued that the child who fired the gun was under any misapprehension
about whether the gun would discharge. The plaintiff was simply arguing
in that case that Daisy should have provided a warning that the gun was
dangero us.
Glittenberg, 411 Mich. at 399, 491 N.W.2d at 217 (“If . . . the
court determines that reasonable minds could differ, the
obviousness of the risk must be determined by the jury.”);
Moning, 400 Mich. at 447, 254 N.W.2d at 769 (“The issue
whether the defendants are subject to liability cannot properly
be taken from the jury on the supposition that an 11 year old
boy knows how a slingshot operates and therefore appreciates
the risk.”); Crist v. Art Metal Works, 230 A. D. 114, 117, 243
N.Y.S. 496, 499 (N.Y. App. Div. 1930), aff’d by, 255 N.Y.
624, 175 N.E. 341 (1931) (“A product designed to be used by
adults who may be expected to exercise care may not be
dangerous, but when intended to be placed in the hands of
inexperienced children who may seek to enlarge their
knowledge by experimentation of various and sometimes
unexpected character, it may be a source of peril.”) (quoted by
Moning).6
Finally, though it might conceivably support a comparative
negligence defense, the fact that Daisy intended that its air
rifle be used under the direct supervision of an adult and that
Swix’s grandfather had the same rule does not alter the
“reasonable child standard” that applies in this case. See
Farm Bureau Ins. Group v. Phillips, 116 Mich. App. 544, 323
16 Swix, et al. v. Daisy Mfg. Co. No. 02-2154
N.W.2d 477, 549-50 (Mich. Ct. App. 1982). In Farm Bureau,
the court noted that in negligence cases involving children,
the reasonable child standard would apply unless the child is
engaged in an adult activity. Id. at 477, 547. The defendant
argued that starting camp fires was an adult activity because
it generally requires adult supervision and the child involved
was told that he had to be supervised. Id. at 479, 549-50. The
court declined, however, to depart from the usual standard,
noting that many activities should be done with adult
supervision, but this does not make them adult activities. Id.
at 479, 550. Similarly, while there is no question that an air
rifle should be used with adult supervision, the complaint
alleges that the typical user of a BB gun is a child, so that is
the standard the district court must apply.
Moreover, a manufacturer has a duty to protect against
foreseeable misuses. Moning, 400 Mich. at 439; 254 N.W.2d
at 765; Bordeax v. Celotex Corp., 203 Mich. App. 158, 167,
511 N.W.2d 899, 905 (Mich. Ct. App. 1993). It is certainly
foreseeable that a twelve year old child will on occasion use
a BB gun which was purchased for his use, without direct
supervision, or that any supervision will be inadequate to
protect against a split-second decision by the minor to aim at
another. See, e.g., Moning, 400 Mich. at 439, 254 N.W.2d at
765 (“A manufacturer, wholesaler and retailer of slingshots
can be expected to foresee that they will be used to propel
pellets and that a person within range may be struck.”).
III
Therefore, for the reasons discussed supra, we reverse the
district court’s grant of defendant’s motion to dismiss and
remand this case to the district court for further proceedings
not inconsistent with this opinion.

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