Litigation Defenders

There’s an old saying — if it looks like a duck, swims like a duck, and quacks like a duck, it’s probably a duck.

Some plaintiff lawyers apparently missed that day of logic class because for product liability litigation in Michigan, we routinely see personal injury plaintiffs try to dress up a product claim in a negligence costume, slap a fake mustache on it and then insist it’s something else entirely.

That trick usually doesn’t work. Or at least, it shouldn’t—and Michigan law gives you the tools to prove it.

Here’s the scenario. A consumer buys a product from a retailer. The product allegedly injures the consumer. The consumer’s attorney, knowing that Michigan’s product liability statute gives broad protection to non-manufacturing sellers, gets creative.

Instead of suing on a straightforward product liability theory, the complaint alleges that the store employee, of all people, did something wrong. Maybe the associate recommended the product. Maybe they demonstrated it. Maybe they said something about how to use it.

The complaint screams “ordinary negligence!” at every turn, hoping the court won’t notice that the actual harm traces right back to — you guessed it — a product.

But a duck in a trench coat and sunglasses is still a duck.

Statutory Shield: MCL 600.2947(6)

Michigan’s product liability framework provides serious protection for sellers who did not manufacture the product. Under MCL 600.2947(6), a seller other than a manufacturer is not liable in a product liability action unless the plaintiff can prove one of only two things:

1. The seller failed to exercise reasonable care, including breach of any implied warranty with respect to the product and that failure was a proximate cause of the plaintiff’s injuries; or
2. The seller made an express warranty as to the product, the product failed to conform to that warranty and the nonconformity was a proximate cause of the harm.

That’s it. Two doors. And the plaintiff holds the key to neither unless it can actually prove what’s behind one of them. This is a powerful shield for retailers, wholesalers and distributors who are merely conduits in the chain of distribution.

Labels Don’t Control: The Gravamen Test

So how do plaintiffs try to get around the statute? Simple: they avoid the words “product liability” and plead “negligence.” They point to employee conduct—a recommendation, a demonstration a statement about proper use—and argue that the claim sounds in ordinary negligence, not product liability. And if it’s not a product liability action, then MCL 600.2947(6) doesn’t apply. Right?

Wrong.

Michigan defines “product liability action” broadly under MCL 600.2945. It covers any action based on any legal or equitable theory of liability brought for death, personal injury or property damage “caused by or resulting from” the production of a product. And “production” isn’t limited to manufacturing—it expressly includes selling, marketing, instructing, warning, advertising and more.

Michigan courts look at the gravamen—the substance—of the claim, not the label the plaintiff chose to pin on it. Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711 (2007). So, if the harm fundamentally arises from a product, the claim is a product liability action. Period. Artful pleading cannot transform the substance of what happened. And the protections of MCL 600.2947(6) attach regardless of how many times the complaint quacks “negligence.”

Think about it this way: if a customer is burned by a defective space heater, the claim doesn’t stop being a product liability action just because the complaint focuses on the sales associate who plugged it in during a demo. The injury still “resulted from” the production (including the sale) of a product. The duck hasn’t changed species just because someone put a hat on it.

Practical Defense Takeaways

For defense counsel representing retailers and other non-manufacturing sellers, here’s the playbook:

• Scrutinize the gravamen. Look past the complaint’s language. Ask: what actually caused the harm? If the answer is “a product,” you’re in product liability territory, no matter how many paragraphs describe the employee’s conduct.
• Move early. File a motion for summary disposition invoking MCL 600.2947(6) as soon as the record supports it. Force the issue before discovery spirals.
• Pin the plaintiff down. Demand specifics. What reasonable care did the seller fail to exercise, and how was it a proximate cause? What express warranty was made, and how did the product fail to conform? If the plaintiff can’t satisfy one of those two statutory exceptions, the retailer gets to "waddle away" from the case.
• Don’t let artful pleading do the work. Allegations that a sales associate “recommended” or “handled” the product are not, standing alone, enough to conjure a freestanding negligence duty outside the statute. The plaintiff must still connect that conduct to one of the two statutory exceptions with proof of proximate causation.

At the end of the day, the duck test works. Plaintiffs can allege the employee said this, recommended that or handled the other thing. But if the core of the claim is “a product hurt me,” then it’s a product liability action—and Michigan’s non-manufacturer seller protections apply. Quack, quack!