Opposition Brief — Johnson v. Park Shore Marina

No. 89-159

In The

Supreme Court of the United States

October Term, 1989

»

aa

HERBERT H. JOHNSON, JR.,

Petitioner

VS.

PARK SHORE MARINA, et al.,

Respondents.

»

~

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

a

il

| RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

—

.

|AMES, DARK AND BrILI

Journ C. Fist (P28918)

Attorneys for Respondents

Park Shore Marina; John L.

Landow, d/b/a Park Shore

Viartina; Steven M. Palatines,

i/b/a Park Shore Marina

500 Comerica Building

Kalamazoo, MI 49007

; FAN 199%

H10) 545-1556

Ae,

QUESTION PRESENTED

Issue: THE SIXTH CIRCUIT COURT OF APPEALS

PROPERLY CONCLUDED THAT MICHIGAN

PRODUCT LIABILITY LAW PROVIDES THAT

IN THE CASE OF SIMPLE PRODUCTS OR

TOOLS THERE IS NO DUTY TO WARN OF

KNOWN OR OBVIOUS PRODUCT-CON-

NECTED DANGERS WHERE THE PRODUCT

ITSELF IS NOT DEFECTIVE OR DANGEROUS.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED: ...0.4 000720 oon See ee i

TABLE OF CONTENTS. . 2... csas aaa eerste ii

INDEX OF AUTHORITIES... - 2.00 eee anes il

PRELIMINARY STATEMENT ...........---.0+0000%

STATEMENT OF THE CASE... + -eas eee 2

SUMMARY OF REASONS WHY THE PETITION

SHOULD BE DENIED... .:.2557-5 3 oe 6

ARGUMENT 3)... 2020505 0 Race 7

I. THE SIXTH CIRCUIT COURT OF APPEALS

PROPERLY CONCLUDED THAT MICHIGAN

PRODUCT LIABILITY LAW PROVIDES

THAT IN THE CASE OF SIMPLE PRODUCTS

OR TOOLS THERE IS NO DUTY TO WARN

OF KNOWN OR OBVIOUS PRODUCT-CON-

NECTED DANGERS WHERE THE PRODUCT

ITSELF IS NOT DEFECTIVE OR DAN-

GEROUS |. i... 6.5: 0500 7

Il. PROCEDURAL RULES FOR SUMMARY

JUDGMENT WERE PROPERLY FOLLOWED

BY THE TRIAL COURT AND THE SIXTH

CIRCUIT ON APPEAL... 15

Il. THIS ACTION DOES NOT COME WITHIN

THE “SPECIAL AND IMPORTANT REA-

SONS” REQUIREMENT FOR GRANTING

THE WRIT OF CERTIORARI SET FORTH IN

SUPREME COURT RULE 17-........ 1. 16

CONCLUSION . .. 00.25 ks eee 17

APPENDIX . 0... sncd ie App. 1

ill

INDEX OF AUTHORITIES

Page

Antcliff v State Employees Credit Union, 414 Mich.

Gna, S27 W.W.20 614 (1982)............ 10:3); 423. 15

Fisher v Johnson Milk Company, Inc., 383 Mich. 158,

ees Gree 9 SEG) |) ae ee Mee ae

Glittenburg v Wilcenski, 174 Mich. App. 321, 435

oe OG) ar 12, 13, 14

Hill v Huskey Briquetting, Inc., 54 Mich. App. 17,

ee En 14

Horen v Coleco Industries, Inc., 169 Mich. App. 725,

Be” Gea 6) a rn ig, 43, 18

Jamieson v Woodward & Lothrop, 101 App. DC 32,

Eo Saar a 8

Mach v General Motors Corporation, 112 Mich. App.

Se OPE OE CNIOL) kes ceca e epee ees 15

Michigan Mutual Insurance Company v Heaiilator

Fireplace, 422 Mich. 148, 366 N.W.2d 202 (1985) .11, 14

Moning v Alfono, 400 Mich. 425, 254 N.W.2d 759

Ee Ae een eee eer 15

Owens v Allis Chalmers Corp., 414 Mich. 399, 327

NT RROD 5 yc ey vec ed senses venees 7, 9, 10

Pettis v Nalco Chemical Co., 150 Mich. App. 294, 388

EE ROO ya vere cena se eencs 1M, 42733

Rice v Sioux City Memorial Park Cemetery, Inc., 349

US 70, 75 Supreme Court 614 (1955).............. 16

Ross v Jaybird Automation, Inc., 177 Mich. App. 603,

i eg GS 6 |) Sea a 1]

INDEX OF AUTHORITIES (Cont.)

Page

Smith v E.R. Squibb and Sons, Inc., 405 Mich. 79, 273

ek ee n,n te er cine, phe eer Tee 13

Spencer v Ford Motor Company, 141 Mich. App. 356,

ee Pe ee RES cw cca ce uwancwssancee : 14

Thomas v International Harvester Co., 57 Mich. App.

79, 225 N.W.2d 175 (1974) .. ee 13

No. 89-159

y%

_

In The

Supreme Court of the United States

October Term, 1989

HERBERT H. JOHNSON, JR.,

Petitioner,

VS.

PARK SHORE MARINA, et al.,

Respondents.

,

a di

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

,

_

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

7.

a

PRELIMINARY STATEMENT

Respondents Park Shore Marina, John L. Landow,

d/b/a Park Shore Marina and Steven M. Palatinas, d/b/a

Park Shore Marina respectfully request that this court

deny the Petition for Writ of Certiorari seeking review of

the decision of the United States Court of Appeals for the

Sixth Circuit in this case.

>

é

STATEMENT OF THE CASE

In 1984, Arthur Anderson, Joann Anderson, Gerald

Connor and Kathryn Conner (all third party defendants

who are not respondents in this case) purchased a cottage

on Diamond Lake, Cassoplis, Michigan. The property

came with a dock. The dock would be put in the water

every spring and removed in the fall.

After purchasing the cottage, Mr. Anderson called

Respondent Park Shore Marina and talked with Respon

dent John Landow. Mr. Landow and Respondent Steven

Palatinas are partners doing business as the Park Shore

Marina. Mr. Anderson requested the marina install the

dock for the season (Landow, at TR 8). This would have

been in the spring of 1984.

Mr. Landow refused to install the dock as the wood

decking material had rotted and was therefore unsafe

(Landow, at TR 9). Mr. Anderson requested a price on

new wood decking material. The price was given and

accepted (Landow, at TR 8-14). Park Shore Marina

ordered the replacement wood decking sections from

Respondent Lake Shore Products. Lake Shore Products

delivered the replacement decking to Park Shore Marina

(Landow, at TR 10-14). The replacement wood decking

consisted of eight 3’ x 12’ sections and three 4’ x 10’

sections.

Park Shore Marina put the dock into the water in the

spring of 1984 (Landow, at TR 17-19). The eight 3’ x 12’

sections each overlapped the other a foot and thus the

dock extended approximately 80’ into the lake. The three

4’ x 10’ sections were placed on the lake end of the dock

to forma “L’ shape (Landow, at TR 16-25)

Park Shore Marina did not design the dock. It only

sold replacement wood deck sections to the property

owners. When Park Shore Marina installed the dock, the

property owners’ existing steel cross members and

sleeves were used to support the decking. The steel cross

members slid into steel sleeves which were pipes perma-

nently buried in the lake bed. The sleeves remained in the

water all year. (Landow, at TR 16-25).

Park Shore Marina removed the wood decking and

steel supports in the fall of 1984 and reinstalled the wood

decking and supports in the spring of 1985.

In the summer of 1985 Joann Anderson decided to

have a party at the cottage for her coworkers. Petitioner

Herbert Johnson is a resident of Chicago and is employed

by Amtrak in Chicago as a reservations supervisor. Mrs.

Anderson in the director of the department in which

Petitioner Johnson is employed.

On June 22, 1985 Petitioner Johnson arrived at the

party approximately 2:00 PM Michigan time. He claims to

have consumed one beer in the car on the way to the

party (Johnson, at TR 18). Petitioner Johnson has testified

that after his arrival at the party he went fishing, pur-

posely/playfully bumped a child off the dock into the

water near the shoreline (Johnson, at TR 50), drank

another beer (Johnson, at TR 36) and discussed with

Arthur Anderson the feasibility of pushing a particular

adult into the water (Johnson, at TR 37, 44). Mr. Johnson

then sat on the end of the dock and dangled his feet in

the water

Petitioner Johnson then decided to go swimming.

According to Mr. Johnson’s testimony, he got to his feet

and went to a ladder which was attached to the end of the

dock. He grabbed the ladder and put one foot in the

water. Mr. Johnson decided the water was too cold to

enter slowly by descending the ladder so he decided to

dive into the lake.

Petitioner Johnson walked back to the end of the

dock. He states that he bent his knees and crouched to

dive. As he did so he noticed Mr. Anderson quickly

coming towards him from the left. Due to his earlier

conversation with Mr. Anderson about pushing people in

the water, Petitioner Johnson believed Anderson was

about to push him in. Petitioner Johnson states he was

distracted and hurried his dive into the water (Johnson at

TR 61-77, 141-142).

Petitioner Johnson claims that he struck his head on

the lake bottom and fractured his neck. As a result, he is

quadriplegic. It is claimed the depth of the water was less

than four (4) foot at the end of the dock.

Petitioner Johnson was transported to a local hospital

where a blood alcohol test was performed. His blood

alcohol level was tested at .192 (Henry Guzzo, M.D.., at

TR 13).

Mr. Johnson has testified at deposition that he never

checked the depth of the water, did not see the lake

bottom, never looked down into the water before he dove

and did nothing to determine the depth of the water

before his dive (Johnson at TR 78, 82-84, 175, 180). Peti

tioner Johnson has been swimming and diving since he

was 9 or 10 years of age (Johnson, at TR 183-185). Peti

tioner Johnson admitted at deposition that if he had given

it any thought he knew that he could fracture his neck by

diving into shallow water (Johnson, at TR 175-178).

Petitioner filed a product liability action in the

United States District Court for the Western District of

Michigan. Petitioner alleged thai Respondents Park Shore

Marina, Palatinas and Landow breached implied warran-

ties and also were negligent. In reality, however, all par-

ties agree that substantively this was a perfectly fine

dock. Petitioner’s only theory is that warnings should

have been posted on the dock.

“Johnson agrees with Lake Shore Products’ first

assertion that “the actual construction of the

dock, i.e., the wood, the nails and the manner in

which the wood was fastened together, played

no role in this accident.” (R. 108: Brief by Plain-

tiff/Petitioner opposing Respondents’ motion

for summary judgment filed in the trial court at

p. 4).

The trial court grarited the motions for summary

judgment filed by Respondents Park Shore Marina,

Landow, Palatinas and Lake Shore Products, Inc. The

court granted the motions on two basis: First, the Peti-

tioner was unable to produce any evidence that the

Respondents’ product, the dock, was a cause of his inju

ries. Secondly, even assuming the dock caused petitioners

injuries, the Respondents had no duty to warn in situa-

tions involving know or obvious product-connected dan-

gers where the product itself is not defective or

dangerous, i.e. the dock was not defective and the danger

of diving into shallow water is well known and obvious.

The Sixth Circuit Court of Appeals affirmed finding

that under Michigan law there is no duty to warn of

known or obvious product-connected dangers where the

product itself is not defective or dangerous. As there is no

dispute that the dock itself was not defective or dan-

gerous (absent the warning) and because the dangers of

diving into unknown waters are known and obvious (as

Petitioner himself conceded in his deposition testimony)

there was no duty by Respondents to warn about the

danger.

Petitioner now brings a petition for a writ of cer-

tiorari seeking review by this court.

>

>

SUMMARY OF REASONS WHY THE

PETITION SHOULD BE DENIED

1. Michigan Product Liability Law provides that in

the case of simple products there is no duty to warn of

known or obvious product-connected dangers where the

product itself is not defective or dangerous. The wood

deck sections sold by Respondents was a very simple

product. It was simply a wood platform.

Michigan Law was correctly interpreted and applied

by the trial court in granting Respondents summary judg-

ment. The Sixth Circuit Court of Appeals correctly inter-

preted and applied Michigan law in affirming the trial

court.

2. Procedural rules for summary judgment were

properly followed by the trial court and the Sixth Circuit

on appeal. Michigan law provides that the question of

duty is one of law for the court to decide. Petitioner was

admittedly aware of the possibility of serious injury when

diving off a dock into water whose depth is unknown

The danger of such a dive was obvious. As a matter of

law there was no duty to warn [etitioner of this known

or obvious product-connected danger.

3. This action does not come within the “special and

important reasons” standard for granting the writ of cer-

tiorari. This is not a case involving principles, the settle-

ment of which is of importance to the public as

distinguished from that of the parties.

&

7.

ARGUMENT

I. THE SIXTH CIRCUIT COURT OF APPEALS

PROPERLY CONCLUDED THAT MICHIGAN

PRODUCT LIABILITY LAW PROVIDES THAT

IN THE CASE OF SIMPLE PRODUCTS OR

TOOLS THERE IS NO DUTY TO WARN OF

KNOWN OR OBVIOUS PRODUCT-CON-

NECTED DANGERS WHERE THE PRODUCT

ITSELF 1S NOT DEFECTIVE OR DANGEROUS.

Petitioner argues the 1982 Michigan Supreme Court

Case of Owens v Allis Chalmers Corp., 414 Mich 399, 327

N.W. 2d 222 (1982) completely did away with Michigan

law which provides there is no duty to warn of known or

obvious product-connected dangers where the product

itself is not defective or dangerous. This simply is not the

case.

The leading case in Michigan setting forth this rule is

Fisher v Johnson Milk Company, Inc., 383 Mich. 158, 174

N.W. 2d 752 (1970). Fisher involved a defendant who sold

a wire carrier made to carry bottles of milk. The plaintiff

dropped the carrier on an icy sidewalk, slipped and fell

on the broken glass and was injured.

‘There was no inherent, hidden or concealed

defect in the wire carrier. Its manner of con

Struction, how the bottles would rest in it, and

what might happen if it were dropped, upright

on a hard surface below, with the possibility

——that the contained bottles might break, was

plain enough to be seen by anyone including «

patent attorney as well as a milk dealer. There is

no duty to warn or protect against dangers

obvious to all. Jamieson v Woodward & Lothrop

(1957), 101 App DC 32 (247 F2d 23). In so hold

ing in support of the trial court’s summary judg

ment for defendant that court said:

“there are * * * on the market vast numbers of

potentially dangerous products as to which the

manufacturer owes no duty of warning or other

protection. The law does not require that an

article be accident-proof or incapable of doing

harm. It would be totally unreasonable to

require that a manufacturer warn or protect

against every injury which may ensue from

mishap in the use of his product. Almost every

physical object can be inherently dangerous or

potentially dangerous in a sense. A lead pencil

can stab a man to the heart or puncture his

jugular vein, and due to that Soong itis an

‘inherently dangerous’ object; but, if < a person

accidently slips and falls on a pencil point in his

pocket , the manufacturer of the pencil is not

liable for the injury. He has no obligation to put

a safety guard on a lead pencil or to issue a

warning with its sale. A tack, a hammer, a pane

of glass, a chair, a rug, a rubber band, and

myriads of other objects are truly ‘inherently

dangerous’ because they might slip dee

hammer is not of defective design because it

may hurt the user if it slips. A manufacturer

cannot manufacture a knife that will not cut ora

TT r tnat willl I t mash a thumb ra if

asi ca ATLA LITE Vt a SU

} hyyarry » tinacor } —T / , }

require him to warn of such common dangers

Fisher at p. 160-161

Owens v Allis Chalmers, supra, relied upon by peti

tioner was decided November 23, 1982. The plaintiffs’

husband was killed operating a forklift manufactured by

defendant. It was claimed the forklift was improperly

pe

of a driver’s restraint so the driver would not be thrown

designed, was unstable and failed to provide some ty

out in a rollover. Various possibilities were offered: a

cage, seatbelts or various types, a bar, and an encapsulat

ing seat with arms. There would be issues such as cost

involved, safety effectiveness, the driver utility of each or

any of the devices, the practicality of the design, the

ability of the driver to perform necessary work with the

devices in place, etc. In other words, Owens involved a

complicated design for a complicated product. The court

indicated the test was whether the risks were unreason

able in light of the foreseeable injuries, i.e. look at the

magnitude of the risk and the reasonableness of the pro

posed design. However, the court explicitly realized that

in cases involving simple products the Fisher obvious risk

test continues to apply:

“Our Court of Appeals has essentially limited

the language in Fisher by the fact that Fisher

involved a simple product or tool. * * * (citations

deleted) We believe that such a limitation is

proper.”

Owens at p. 425.

The court further noted Owens was nota “duty to

warn case’. Owens at p 27

10

Obviously, the Owens case did not completely do

away with the Fisher test which indicates there is no duty

to warn or protect against dangers which are obvious.

Two weeks after Owens was decided, the Michigan

Supreme Court decided Antcliff v. State Employees Credit

Union, 414 Mich. 624, 327 N.W. 2d 814 (December 7,

1982). In Antcliff the plaintiff was injured when a pow-

ered scaffold on which he was working gave way and he

fell to the ground. It was claimed the manufacturer and

seller of the scaffold had a duty to instruct or give direc-

tions for the safe rigging of the scaffold.

“In sum, our prior decisions support a policy

that a manufacturer’s standard of care includes

the dissemination of such information, whether

styled as warnings or instructions, as is appro-

priate for the safe use of its product. If warnings

or instructions are required, the information

provided must be adequate, accurate and

effective.

Although this policy has found expression in a

variety of contexts, most often involving warn-

ings, it is not limited to warnings. It is broad

enough to encompass instructions for use. To

conclude otherwise would be to restrict the

sweep of the law of negligence in this state.

This policy has limits. It has been applied in

instances where the product itself had dangerous

propensities. Out of recognition that the manufac-

turer's interests are also entitled to protection, this

policy has not been applied in situations involving

known or obvious product connected dangers where

the product itself is not defective or dangerous.

Fisher v Johnson Milk Co., Inc., 383 Mich 158; 174

N.W.2d 752 (1970) (wire milk bottle carrier). See

also, Anno: Products liability-duty to warn, 76

11

ALR2d 9, 28-37, and cases cited therein”

(Emphasis added.) Antcliff, at 638-639.

The scaffold itself was not found to be defective. The

plaintiff was charged with full appreciation of the danger

of inadequately supporting the scaffold.

“As a result, the circumstances here (a non-

defective product lacking in dangerous propen-

sities and a known or obvious product-con-

nected danger) do not support application of the

policy which would require Spider to provide

instructions for the safe rigging of its product.”

Antcliff, at 639.

In Michigan Mutual Insurance Company v. Heatilator

Fireplace, 422 Mich. 148, 366 N.W.2d 202 (1985) the Michi-

gan Supreme Court again confirmed the Fisher obvious

danger test still exists for simple products or tools. How-

ever, the Heatilator case did not involve an obvious or

known danger or a simple tool. It involved a complex

prefabricated fireplace with glass doors, various air

vents, an inner metal fire chamber and a second and

larger outer shell with an inner space designed to keep

the outer shell sufficiently cool.

See also Ross v Jaybird Automation, Inc., 172 Mich.

App. 603, 432 N.W.2d 374 (1988) where as late as Novem-

ber, 1988 the Michigan Court of Appeals stated:

“A seller or manufacturer is generally liable in

negligence for failure to warn purchasers or

users of its product about dangers associated

with intended uses and foreseeable misuses.

Antcliff v. State Employees Credit Union, 414 Mich

624, 637; 327 N.W.2d 814 (1982), reh den 417

Mich 1103 (1983); Pettis v Nalco Chemical Co., 150

12

Mich App 294, 301; 388 N.W.2d 343 (1986), lv

den 426 Mich 881 (1986). This standard of care

includes dissemination of information, either

warnings o7 instructions, as is appropriate for

the safe use of the product; such information

must be adequate, accurate, and effective. Pettis,

supra, 392, However, there is no duty to warn of

known or obvious product-connected dangers where

the product itself is not defective or dangerous.

Antcliff, supra, p 639. Whether a manufacturer owes

a duty to warn or to instruct is a question of law for

the court to decide. Id., ¢ 640.” Ross at 606-607.

(Emphasis added.)

Nowhere does a Michigan court restrict this rule to a

product distributed only to highly skilled employees

charged with particular knowledge of a product. How-

ever, the rule does apply equally to a danger obvious to

the expert’s eye.

Petitioner cites two Michigan Court of Appeals deci-

sions involving swimming pools as standing for the prop-

osition that the Fisher test (no duty to warn of a known or

obvious danger inherent in a simple tool or product) no

longer exists. The cases cited are Horen v Coleco Industries,

Inc., 169 Mich. App. 725, 426 N.W.2d 794 (1988) and

Glittenburg v Wilcenski, 274 Mich. App. 321, 435 N.W.2d

480 (1989). These cases simply are not applicable.

First, a swimming pool is not a simple product. A

swimming pool requires grading, necessarily has sides

and a bottom, plumbing, concrete, tile, a liner, circulating

motor, filter, heater, chemicals and involves intricate

design and manufacture.

13

Park Shore Marina simply provided perfectly fine

and simple wood deck sections off of which the Peti-

tioner, with a blood alcohol level of over .19, rushed to

dive into the water head first believing his friend was

about to push him into the water.

Secondly, a pool manufacturer has control over the

depth of the pool. This is part of the pool design. Respon-

dent Park Shore Marina on the other hand had absolutely

no control over the depth of Diamond Lake. The lake

bottom on which the Plaintiff apparently struck his head,

causing the injury, was not part of the product sold by

Park Shore Marina.

Furthermore, neither Horen nor Glittenburg are deci-

sions of the Michigan Supreme Court.

Petitioner cites various cases to support the theory

that a manufacturer may have a duty to warn even

though a product is perfectly made. These cases do not

involve a simple product or tool which is neither defec-

tive nor dangerous with a risk known or obvious.

Smith v E.R. Squibb and Sons, Inc., 405 Mich. 79,

273 N.W.2d 476 (1979) involved a decedent who

died as a result of an allergic reaction to an x-ray

dye.

Pettis v Nalco Chemical Co., 150 Mich. App. 294,

388 N.W.2d 343 (1986) involved a chemical used

to coat molds which caused an explosion when

contacted by molten steel.

Thomas v International Harvester, Co., 57 Mich.

App. 79, 225 N.W.2d 175 (1974) involved a ball-

bearing which was made of very hard steel and

chipped when struck with a hammer.

14

Hill v Huskey Briquetting, Inc., 54 Mich. App. 17,

220 N.W.2d 137 (1974) involved a decedent who

was killed by fumes when charcoal briquettes

were lit.

Furthermore, these case together with the Heatilator,

Horen and Glittenburg decisions all have something in

common which is lacking in Petitioner Johnson’s case.

The product involved was the proximate cause of the

injury. The injury was caused by some element of the

product-over which the manufacturer has control and is

charged with responsibility. Opposed to all of these cases

is the situation of Petitioner Johnson. Petitioner was not

struck by the dock, did not slip on the dock or was

otherwise injured by the dock or from any by-product of

the dock. There is simply no evidence of a causal connec-

tion between the dock and his injury. The injury was

caused by the shallow depth of Diamond Lake. The lake

bottom was not part of this product.

“Product liability actions grounded in negli-

gence or breach of implied warranty require a

causal connection between the manufacturer’s

negligence | or product defect and the plaintiff’s

injury . . Spencer v Ford Motor Company, 141

Mich. App. 356, 361, 367 N.W.2d 393 (1985).

To require Respondents, sellers and installers of the ~

decking material, to place a warning sign on the dock

would require the paver of the driveway at the cottage to

post a sign at the end of the drive stating: “DANGER: DO

NOT EXIT DRIVEWAY IN FRONT OF ONCOMING

VEHICLE.” Michigan law does not require such a

warning.

15

Il. PROCEDURAL RULES FOR SUMMARY

JUDGMENT WERE PROPERLY FOLLOWED

BY THE TRIAL COURT AND THE SIXTH CIR-

CUIT ON APPEAL.

The theory Petitioner has pursued at the trial level,

Court of Appeals and before this Honorable Court has

been that Respondents had a duty to post signs on the

dock warning of the lake’s shallow water.

The question of duty is one of law for the court to

decide. Moning v Alfono, 400 Mich 425, 254 N.W.2d 759,

(1977); Mach v General Motors Corporation, 112 Mich. App.

158, 315 N.W.2d 561 (1982); Antcliff v State Employees

Credit Union, supra.

As stated earlier, as this wood decking material is not

defective or dangerous, the manufacturer/seller is not

required to warn of situations involving known or

obvious product-connected dangers. Reasonable minds

could only conclude that there in an obvious danger with

diving head first into a lake, the depth of which is

unknown. Petitioner Johnson was properly charged with

this knowledge. He had been swimming and diving since

9 or 10 years of age. Petitioner admitted at deposition

that he never checked the depth of the water, did not see

the lake bottom, never looked down into the water before

he dove and did nothing to determine the depth of the

water before his dive (Johnson, at TR 78, 82-84, 175, 180).

Petitioner further admitted that if he had given it any

thought he knew that he could fracture his neck diving

into the shallow water (Johnson, at TR 175-178).

Petitioner was admittedly aware of the possibility of

serious injury when diving off of a dock into water whose

16

depth was unknown. Furthermore, the danger of such a

dive was obvious. As a matter of law, there was no duty

to warn Petitioner Johnson or to protect him from the

shallow lake bed.

Ill. THIS ACTION DOES NOT COME WITHIN

THE “SPECIAL AND IMPORTANT REA-

SONS” REQUIREMENT SET FORTH IN

SUPREME COURT RULE 17 FOR GRANTING

REVIEW ON WRIT OF CERTIORARI.

Finally, the petition should be denied based upon

Supreme Court Rule 17. This action does not come within

the “special and important reasons” requirement for

granting the writ of certiorari. The court does not sit to

satisfy scholarly interest in intellectually interesting prob-

lems nor for the benefit of particular litigants.

* * *

4é

. it is very important that we be consistent

in not granting the writ of certiorari except in

cases involving principles the settlement of

which is of importance to the public, as distin-

guished from that of the parties, and in cases

where there is a real and embarrassing conflict

of opinion and authority between the circuit

courts of appeals.” Rice v Sioux City Memorial

Park Cemetery, Inc., 349 U.S. 70, 75 Sup. Ct. 614,

619-620 (1955)

Petitioner’s argument is without merit and does not

meet the Rule 17 threshold.

17

CONCLUSION

The Sixth Circuit Court of Appeals properly con-

cluded that Respondents had no duty to warn Petitioner

about the dangers posed by diving off a dock into shal-

low water. Respondents Park Shore Marina, Landow and

Palatinas respectfully request that the petition for a writ

of certiorari be denied and Respondents awarded appro-

priate damages pursuant to Supreme Court Rule 49.2 on

the grounds the instant petition is frivolous.

DATED: August 25, 1989

Respectfully submitted,

James, Dark AND BRILL

By: Joun C. Fist: (P28918)

Attorney for Respondents

Park Shore Marina, Landow

and Palatinas

App. 1

APPENDIX

LIST OF PARENT COMPANIES SUBSIDIARIES

AND AFFILIATES, PURSUANT TO RULE 28.1.

Petitioner Park Shore Marina is not a corporation. It

is a partnership wholly owned by Respondents John L.

Landow and Steven M. Palatinas.