Valerie Rountree et al v. Ching Feng Blinds et al
Order on Motion for Summary Judgment
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
VALERIE ROUNTREE, individually
and as Personal Representative of
the ESTATE OF APRIL LYNNE COX;
MORGAN SCHEDIWY, a minor
through her natural mother and
guardian VALERIE ROUNTREE; and
CHING FENG BLINDS INDUSTRY
CO., LTD., et al.,
ORDER FROM CHAMBERS
Motion at Docket 157 ]
I. MOTION PRESENTED
At docket 157, defendant Window Covering Manufacturers Association
(“WCMA”) moves for summary judgment. Plaintiffs Valerie Rountree, on behalf of the
Estate of April Cox and Morgan Schediwy, and Christopher Cox (“Plaintiffs”), oppose
the motion at dockets 163, 164, 168, and 169. WCMA’s reply is filed at docket 176.
Oral argument was not requested and would not assist the court.
This action arises out of the death of April Cox, who strangled in the inner cord of
a window blind at her grandparents’ home on May 27, 2002. Valerie Rountree and
Christopher Cox are the decedent’s biological parents. Morgan Schediwy is the
decedent’s sister. Plaintiffs filed a complaint against WCMA and three other
defendants: Jencraft Manufacturing (“Jencraft”), the alleged distributor of the blinds;
Wal-Mart, the alleged retailer; and Ching Feng Blinds Industry Co. (“Ching Feng
Blinds”), the alleged manufacturer. Jencraft was dismissed prior to answering the
complaint.1 Summary judgment was granted in Wal-Mart’s favor on April 27, 2006,
because plaintiffs were unable to produce admissible evidence that the blinds had been
purchased from it.2 Ching Feng Blinds was dismissed as a defendant on July 27, 2007.3
WCMA is a non-profit trade association incorporated in New Jersey, with its
principal place of business in New York. WCMA’s membership consists exclusively of
window covering manufacturers. In 1996, WCMA developed a national safety standard
intended to address the strangulation hazard of window blinds.4 A warning bearing
strong resemblance to that sponsored by WCMA was affixed to the blinds in which April
Cox got caught. Plaintiffs’ cause of action sounds in negligence and alleges that
WCMA’s standard was “woefully inadequate.”5 Whether any undertaking by WCMA
resulted in the imposition of a legal duty to plaintiffs is the crux of the motion before the
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper
where “there is no genuine issue as to any material fact and . . . the movant is entitled to
judgment as a matter of law.”6 The moving party has the burden of coming forward with
admissible evidence showing “a complete failure of proof concerning an essential
Doc. 168-56, exh. 50 at 3, 5.
Doc. 164 at 25.
Fed. R. Civ. P. 56(c).
element of the nonmoving party’s case . . . .”7 To avoid summary judgment, assuming
the above burden is met, the nonmoving party must “set out specific facts showing a
genuine issue for trial.”8 The court will not assess the credibility of, nor weigh the
evidence and “all justifiable inferences are to be drawn in . . . favor”9 of the nonmoving
Under Alaska law, “the ‘precise nature and extent’ of a duty ‘is a question of law
which can be decided at the summary judgment stage.’”10 Where the breadth of the
assumed duty is at issue, summary judgment is only proper where “reasonable people
could not differ on the nature and extent of [the] voluntarily undertaken duty . . . .”11
“The basic question is whether the defendant has undertaken a responsibility. If
it has, and it has failed adequately to discharge that responsibility, it may be liable to the
people who have been injured.”12 Plaintiffs argue that WCMA voluntarily undertook to
provide a safety standard for window coverings and thereby incurred a duty to
plaintiffs.13 WCMA argues that plaintiffs have not produced any evidence that WCMA
was under any duty to plaintiffs.14 Specifically, WCMA argues (1) that there is no
evidence supporting WCMA’s liability under the Restatement (Second) of Torts § 324A,
(2) that there is no evidence that WCMA had assumed any duty to warn specifically of
the dangers associated with the inner cord, and (3) that for policy reasons a trade
Celotex v. Catrett, 477 U.S. 317, 323 (1986).
Fed. R. Civ. P. 56(e)(2).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Smith v. State, 921 P.2d 632 (Alaska 1996).
Mulvihill v. Union Oil Co., 859 P.2d 1310, 1314 (Alaska 1993).
Kotzebue v. McLean, 702 P.2d 1309, 1313 (Alaska 1985).
Doc. 164 at 15.
Doc. 158 at 3.
association should not be held liable for developing safety standards.15 These
contentions will be addressed in turn.
A. WCMA’s Liability Under § 234A
The Restatement (Second) of Torts § 324A (“§ 324A”) “applies to any
undertaking to render services to another, where the actor’s negligent conduct in the
manner of performance of his undertaking . . . results in physical harm to [a] third
person . . . .”16 Section 324A states that
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of a third person or his things, is subject to liability
to the third person for physical harm resulting from his failure to
exercise reasonable care to protect his undertaking, if:
(a) his failure to exercise reasonable care increases the
risk of such harm, or
(b) he has undertaken to perform a duty owed by the
other to the third person, or
(c) the harm is suffered because of reliance of the other
or the third person upon the undertaking.17
Plaintiffs argue that WCMA voluntarily undertook to perform a service by
developing a safety standard, thereby incurring liability to the third-party consumer
under subsections (a) and (b). WCMA argues that no criterion of § 234A can be met.
1. Increased Risk
Plaintiffs argue that WCMA’s standard was inadequate because it neither
addressed the inner cord, nor cord stops, which alleviate the danger of the inner cord.
Plaintiffs argue further that because the safety standard was inadequate, the risk of
harm associated with the blinds was increased. This argument is flawed, however,
because the absence of a decrease in the risk involved with a particular product is not
Id. at 7.
Restatement (Second) of Torts § 324A cmt. b (1965).
Restatement (Second) of Torts § 324A.
tantamount to an increase in the risk involved with that product. The level of risk is
static. Regardless of whether WCMA’s standard was adequate, the risk of harm that
the window coverings posed did not vary as a function of that standard. A standard or
warning that explicitly accounted for the danger posed by the inner cord may have
decreased the risk of injury to plaintiffs. It does not follow logically that the risk of injury
to plaintiffs was increased by an inadequate standard. This is particularly true in light of
the fact that the manufacturer has not been identified and the influence of WCMA over
the manufacturer is uncertain.
Plaintiffs contend that “questions of fact remain concerning whether a negligent
adoption of the wrong standard . . . not only increased the risk of strangulation . . . but
actually caused it . . . .”18 Even if all of the evidence that plaintiffs have presented in
support of this proposition is assumed to be true, it does not show that an inadequate
standard increased the risk of harm to the third-party consumer.
2. Voluntary Undertaking
In Smith v. State, the Alaska Supreme Court made it clear that although duty is a
question of law, “‘it depends on the nature and extent of the act undertaken, a question
of fact.’”19 Furthermore, “the scope of the assumed duty will vary depending on the
inferences drawn from the facts.”20 Summary judgment is only appropriate “insofar as
there is no question as to whether the duty the undertaking gave rise to was fully
WCMA argues that it did not, in the context of § 234A(b), voluntarily undertake to
perform a duty owed to plaintiffs. WCMA rests its contention on two bases. First,
WCMA argues that Alaska courts have never imposed liability to a third party on an
Doc. 164 at 27.
Smith v. State, 921 P.2d 632, 634 (Alaska 1996).
Id. at 635.
Id. at 635.
entity lacking control over the instrumentality of harm.22 In Anderson v. PPCT
Management Systems,23 the Alaska Supreme Court did precisely that. The Anderson
court held that PPCT Management Systems (“PPCT”), a company that undertook to
instruct employees of the Department of Corrections (“DOC”) in use-of-force training
techniques, was liable to an employee of the DOC who was injured during use-of-force
training.24 The court concluded “that PPCT had a duty of care in developing and
implementing its training program.”25 The court specifically stated that PPCT’s duty was
“not . . . limited to danger from PPCT techniques and [did] not . . . require a showing that
PPCT had control over the DOC academy . . . ”26 which implemented their training
WCMA’s second basis for this argument is that because the manufacturer has
not been identified, there can be no evidence that the manufacturer delegated its duty to
WCMA.27 A duty, however, need not be delegated to be supplanted by voluntary
There is no question that the warning on the blinds was substantially the same as
that developed by WCMA.28 WCMA contends that “there are technical differences
between the warning label specified in the safety standard and the label on the blinds.”29
If it is WCMA’s warning affixed to the blinds, WCMA voluntarily undertook to perform at
least the duty to warn consumers of the risks of harm associated with the product. It is
of no consequence that WCMA did not have control over the blinds because WCMA
Doc. 158 at 11-13.
Anderson v. PPCT Management Systems, Inc., 145 P.3d 503 (Alaska 2006).
Id. at 505.
Id. at 512.
Doc. 158 at 13-14.
See Doc. 111 at 3-4.
Doc. 158 at 15.
had control over the content of the warning. The warning itself provides a critical nexus
between WCMA, the manufacturer and the consumer. Whether the warning did or did
not comport with WCMA’s standard cannot be determined as a matter of law. The
scope of the duty that WCMA assumed by developing a safety standard for window
coverings hinges on disputed questions of fact to be determined by a jury. WCMA is
therefore not entitled to judgment as a matter of law on this basis.
B. Scope of Undertaking
WCMA contends that it did not undertake “to ensure the safety of all window
covering products.”30 The court agrees that “the scope of one’s duty is limited by the
scope of [their] undertaking.”31 However, as discussed above, the scope of WCMA’s
undertaking, and the scope of its resultant duty rest on questions of fact that must be
determined by a jury.32
WCMA contends that “[t]here is no [evidence] that suggests an undertaking of
any broader duty . . .”33 than that set forth in the standard itself. This argument is
problematic for WCMA because it admits that it may have undertaken some duty by
developing the standard. This is contrary to the thrust of WCMA’s contentions with
respect to liability under § 234A(b).
WCMA argues further that the safety standard sought only to address pull cord
strangulation, and not any hazards associated with the inner cord.34 The stated purpose
of that standard was “to provide requirements for covered products . . . that reduce the
possibility of injury, including strangulation, to young children from the bead chain, cord,
or any type of flexible loop device used to operate the product.”35 According to plaintiffs’
Doc. 158 at 15
Id. at 15.
Smith v. State, 921 P.2d 632, 634 (Alaska 1996).
Doc. 158 at 16.
Id. at 17.
Doc. 168-56, exh. 50 at 5 (emphasis added).
evidence, the pull cord and the inner cord are “actually two ends of one cord.”36 If the
safety standard, as it states, sought to reduce the possibility of harm resulting from the
cord, any distinction between the pull cord and the inner cord seems purely semantic.
Finally, even if the distinction between the pull cord and the inner cord is
recognized, there is some conflict in the evidence as to whether WCMA knew of the
hazards associated with the inner cord at the time the relevant standard was drafted.
WCMA contends that “there is no document generated by WCMA that references inner
cord strangulation.”37 There was, however, a letter38 received by Peter Rush, the
Executive Director of WCMA, that seems to have at least brought the matter to his
attention.39 Thus, there is a dispute as to whether WCMA knew of the dangers posed
by the inner cord at the time they developed the standard in question. This fact is
material to a determination of whether the safety standard was adopted with reasonable
care. WCMA is therefore not entitled to judgment as a matter of law on this separate
C. Policy Argument
WCMA contends that for public policy reasons, the court should not impose
liability on a trade association, citing D.S.W. v. Fairbanks North Star Borough.40 In that
case the Alaska Supreme Court identified a series of seven factors that should be
considered when deciding if a common law duty of care should be imposed on a
The first of the seven factors is the foreseeability of the particular type of injury.
Here the injury, an infant strangling in the cords of a blind, is foreseeable. Indeed, the
objective of the ANSI standard sponsored by WCMA was “to reduce the possibility of
Doc. 168-3, exh. 2 at 2.
Doc. 158 at 17.
Doc. 169, exh. 3.
See Doc. 104, exh. 3 at 22-28.
628 P. 2d 554 (Alaska 1981).
injury, including strangulation, to young children from the bead chain, cord, or any type
of flexible loop device used to operate the product.”41 This factor favors imposition of a
duty. The second factor is the certainty that harm occurred. Here, there is no doubt
that the infant died. This factor also supports imposition of a duty.
The third factor is the closeness of the connection between the defendant’s
conduct and the harm. In any failure to warn case, there is room to argue that the
connection is not close, because of the potential that an adequate warning would not be
heeded, or that a particular user already would know of the risk. However, it is well
established that makers of products owe a duty to give an adequate warning.42 There is
no reason to treat an association differently than the manufacturer in a case such as
this, where the association sponsored the allegedly defective warning. This factor
therefore favors, if less strongly than the first two, the imposition of a duty.
The fourth factor is the moral blame attached to the conduct. WCMA asserts that
there is no blame which can attach to an effort to “reduce the incidence of window blind
strangulation.”43 That may be so, but once WCMA decided to make the effort to reduce
strangulation deaths, the failure to give an adequate warning may fairly be considered
culpable conduct.44 This factor also supports recognition of a duty.
The fifth of the D.S.W. factors is the policy of preventing future harm. WCMA
suggests that imposing liability on a trade association would actually increase the
prospects for future harm, presumably because to avoid liability, trade associations
would cease to provide any warnings. However, it is also plausible that trade
associations would continue to craft and provide warnings because warnings benefit the
members of such associations. Imposition of a duty would not then eliminate warnings,
but rather assure better warnings, and that outcome would diminish the prospects for
Doc. 168-56, exh. 50 at 5.
E.g., Prince v. Parachutes, Inc., 685 P. 2d 83 (Alaska 1984).
Doc. 158 at p. 20.
Restatement (Second) of Torts § 324A.
future harm. It certainly cannot be said that this factor weighs against the imposition of
The next factor is the burden on the defendant and the consequences to the
community if a duty is imposed. The burden on a manufacturers’ association such as
WCMA, which is already involved in crafting warnings, would not be great because all
that would be required to escape liability would be the crafting of adequate warnings.
The consequences to the community of imposing the duty would be positive, because
adequate warnings would reduce injuries and deaths.
The seventh factor is the cost and availability of insurance for trade associations.
WCMA, not plaintiffs, is in a position to present evidence on this point. WCMA candidly
acknowledges that there is nothing in the record on this topic.45 The upshot of WCMA’s
failure to present evidence is that this factor cannot be said to weigh against imposition
Taking into account the seven factors identified by the Alaska Supreme Court in
the D.S.W. case, this court concludes as a matter of law that a duty should be imposed
on WCMA in favor of plaintiffs.
For the foregoing reasons, defendant WCMA’s motion for summary judgment at
docket 157 is DENIED.
DATED at Anchorage, Alaska, this 10th day of June 2008.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
Doc. 158 at p. 21.
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