dissenting.
The majority argues that our judgment is circumscribed by the Michigan Court of Appeals’ decision in Adams v. Perry Furniture Co., 497 N.W.2d 514 (Mich.App.1993). I agree that a federal court may not disregard the decisions of a state’s intermediate appellate court unless we are “convinced by other persuasive data that the highest court of the state would decide otherwise.” West v. AT & T Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). It seems to me that Adams was mistakenly decided, and I do not think the Michigan Supreme Court would decide the case in the same manner. I reach this conclusion after reviewing language in a recent Michigan Supreme Court decision, dicta to be sure, which persuades me that it would not. Accordingly, I must dissent.
In Adams, the Michigan Court of Appeals ruled that Bic Corporation does not have a duty to manufacture child-resistant lighters. The facts of Adams are simple, and are somewhat similar to the facts in the present case:
[The] Plaintiff [in Adams ] is the personal representative of the estates of four minor children who died in a fire in the family home. Plaintiff’s complaint alleged that the decedents were asphyxiated and died as a result of inhaling the fumes of a burning mattress_ [A] disposable butane lighter ... allegedly caused the fire.
Adams, 497 N.W.2d at 515. The plaintiff raised both failure to warn and negligent *712design theories against Bie. In its opinion, the Adams court addressed the failure to warn theory first. The court concluded that, as a matter of law, Bic owed plaintiff no duty to warn because the fighter was a simple tool and the danger was open and obvious. Id. at 519-20. The court next turned to the negligent design theory and stated:
The test in design defect cases concerning simple tools is whether the risks are unreasonable in fight of the foreseeable injuries.... The parties do not dispute that it is foreseeable that children will handle lighters and might injure themselves in doing so. However, we are not persuaded that the risk of this danger imposes a duty upon the manufacturer of the fighter to make it child-resistant in light of the fact that the product is intended to be sold to adults.... Moreover, Bie placed a warning on its fighters to keep them out of the reach of children. We believe that the risk of danger to children is best obviated by the supervisory control of the product by its adult purchasers. We recognize the tragic loss of life under these circumstances. However, courts have never made sellers insurers of their products and thus absolutely liable for any and all injuries sustained from the use of those products.... Thus, we conclude that Bic does not have a duty to manufacture child-resistant fighters.
Id. at 520 (citations omitted).
Our threshold task is to determine whether we think the Michigan Supreme Court would reach the same conclusion. I do not think it would. Adams rejected the use of the open and obvious rule to determine whether Bic fighters are negligently designed. I agree that the Michigan Supreme Court would adopt this much of Adams’s holding. The Michigan Supreme Court opinion in Glittenberg v. Doughboy Recreational Industries, 491 N.W.2d 208 (Mich.1992), foreshadowed this result.
Glittenberg involved duty to warn cases and, therefore, does not directly govern the issue before us. Nevertheless, its dicta provides us with some guidance as to how the Michigan Supreme Court would likely rule if it were faced with the facts before us. Glit-tenberg indicates that if the supreme court were considering a design defect ease involving a simple tool, it is likely the court would not apply the open and obvious rule to hold, as a matter of law, that the manufacturer’s duty to design a reasonably safe product was obviated: ‘We have rejected the proposition that the ‘open and obvious danger’ rule is an incantation that obviates the threshold inquiry of duty in design defect cases.” Id. at 214. The Glittenberg court discussed why the “open and obvious” rule does not apply to design defect cases:
Obviousness of danger is merely one factor in the analysis of whether a design is reasonable.
... When a design defect claim is examined, the obvious nature of the product-connected danger will not preclude a court from entertaining a plaintiffs claim that an alternative design could feasibly reduce the risk of injury. However, when a negligent failure to warn claim is examined, the open and obvious danger of a simple product may preclude a plaintiff from establishing the requirement of duty of the prima facie case.
Id. at 215-16.
The rationale for the “open and obvious” rule is clear in failure to warn eases. If the danger of a product is open and obvious, there is no need for any warnings. The obviousness of the danger takes the place of warnings, and, therefore, the duty to warn is excused. It is less clear why the “open and obvious” rule should be dispositive in defective design cases. The manufacturer’s duty in a design defect case is “to eliminate any unreasonable risk of foreseeable injury.” Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 186 (Mich.1984). This rule contemplates balancing the risk of harm against the utility of a particular design. Id. at 184. If the dangerousness of a product is open and obvious, this may be a factor that contributes to the decision whether the product is “unreasonably dangerous.” Owens v. Allis-Chalmers Corp., 326 N.W.2d 372, 377 (Mich.1982) (emphasis added). But the ultimate determinant of whether the design of a product is “unreasonably dangerous” is “whether the alleged *713defect in the design ... created an unreasonable risk of foreseeable injury.” Prentis, 365 N.W.2d at 187. And that is a question of fact. Thus, the open and obvious dangerousness of a simple tool does not necessarily mean that the risks of foreseeable injury in using the tool are reasonable and that the manufacturer has therefore met its duty to design a product that is not unreasonably dangerous. Accordingly, I am convinced that the Michigan Supreme Court would adopt the “open and obvious” rule for failure to warn claims, and the “unreasonable risk of foreseeable injury” rule for defective design claims as stated in Adams.
I do not agree, however, that the Michigan Supreme Court would adopt the ultimate decision of Adams that, as a matter of law, Bic had no duty to make its lighters child-resistant. At this point, it is important to note the procedural posture of Adams. The court of appeals in Adams was reviewing a lower court’s summary judgment for Bic that was entered before discovery was complete. 497 N.W.2d at 520.
The procedural posture of Owens, as well as several statements in the opinion, make it clear that the “unreasonable in light of the foreseeable injuries” test is a factual inquiry. In Owens, the Michigan Supreme Court affirmed a directed verdict in favor of the defendant at the close of plaintiff’s case. 326 N.W.2d at 374-75. In doing so, however, the court twice referred to the factual nature of the defective design test:
The factual inquiry demanded is whether a forklift is unreasonably dangerous when it fails to include a factory-installed driver restraint, such as a seat belt.
Id. at 378 (emphasis added).
In the entirety of plaintiffs proofs, there is no data or other factual evidence concerning the magnitude of the risks involved, the utility or relative safety of the proposed alternatives, or evidence otherwise concerning the “unreasonableness” of risks arising from failure to install driver restraints on the subject forklift model as standard equipment.
Id. at 379 (emphasis added). The court affirmed the verdict largely because of the factual failures in the plaintiffs proofs.
In Adams, however, the plaintiff did not have an opportunity to put on any proofs. Indeed, because discovery was not complete when judgment for Bic was entered, it was unclear what proofs plaintiff would be able to present. The Michigan Supreme Court has made it rather clear that the issue of the reasonableness or unreasonableness of the risks involved in various alternative designs is a matter to be decided by the fact-finder at trial. This issue may be removed from the fact-finder only if the plaintiff utterly fails to present the jury with a genuine issue of material fact concerning those risks. The Adams court took that task away from the jury, and I do not think the Michigan Supreme Court would approve it doing so.
Judge Suhrheinrich’s opinion argues that rejecting Adams means 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.” This is not necessarily true. As with any factual issue, the plaintiff must make a sufficient showing of proof to create a genuine issue of material fact. My position does mean, however, that motions for summary judgment will very rarely be appropriate before the close of discovery. Even if, as a practical matter, my colleague’s prediction were true, this is the result I believe is required by existing Michigan law.
Therefore, following the precedent of Owens and the guidance of Glittenberg, I would hold that, as a matter of law, Bic owed the duty to design its lighter to eliminate any unreasonable risk of foreseeable injury. Whether it did so is a question of fact, and whether the pleadings and papers in this case frame that question of fact has never been decided. In all events, the district court erred when it concluded that the open and obvious rule obviated the threshold inquiry of duty in this design defect case. I would set aside the judgment for Bic and remand the case to the district court for further proceedings.