Morejon v. Louisville Ladder, Inc.

Filing 30

ORDER granting 18 Motion for Partial Summary Judgment. The defendant is entitled to summary judgment on the failure to warn claimin Count II. Signed by Magistrate Judge John J. O'Sullivan on 3/1/2018. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-22558-CIV-O'SULLIVAN
[CONSENT]
JORGE MOREJON,
Plaintiff,
v.

LOUISVILLE LADDER, INC.,
Defendant.

- - - - - - - - - - - - - -I

ORDER
THIS MATTER is before the Court on the Defendant's Motion for Partial
Summary Judgment Against Plaintiff and Incorporated Memorandum of Law (DE# 18,
1/2/18).

BACKGROUND
On July 10, 2017, the instant action was removed on diversity jurisdiction to the
United States District Court for the Southern District of Florida. See Notice of Removal
(DE# 1, 7/10/17). The Amended Complaint alleges the following causes of action
against defendant Louisville Ladder, Inc. (hereinafter "defendant"): strict liability (Count
I) and strict liability (negligence) (Count II). Amended Complaint (DE# 1-3). 1
On January 2, 2018, the defendant filed a motion for partial summary judgment
and statement of undisputed facts. See Defendant's Motion for Partial Summary
Judgment Against Plaintiff and Incorporated Memorandum of Law (DE# 18, 1/2/18)

1

The Amended Complaint also alleged a cause of action against Eduardo
Moncada and Ana G. Moncada. The Moncadas are no longer defendants in the case.
On June 23, 2017, the state court entered a Final Judgment as to the Moncadas (DE#
1-6).

(hereinafter "Motion"); Defendant's Statement of Undisputed Material Facts Filed in
Support of Its Motion for Partial Summary Judgment Against Plaintiff (DE# 19, 1/2/18)
(hereinafter "SOF"). The plaintiff filed his response on January 30, 2018. See Plaintiff's
R~sponse

in Opposition to Defendant Louisville Ladder, lnc.'s Motion for Partial

Summary Judgment (DE# 23, 1/30/18) (hereinafter "Response"); Plaintiff's Response to
Defendant Louisville Ladder, lnc.'s Statement of Undisputed Material Facts and
Plaintiff's Statement of Facts in Opposition to Defendant's Motion for Partial Summary
Judgment (DE# 22, 1/30/18) (hereinafter "RSOF"). The defendant filed its reply on
February 6, 2018. See Defendant's Reply to Plaintiff's Response in Opposition to
Defendant's Motion for Partial Summary Judgment (DE# 24, 2/6/18) (hereinafter
"Reply").
This matter is ripe for adjudication.
FAC.TS
On October 29, 2015, the plaintiff fell while using a ladder to descend from the
roof of a property. SOF
defendant.

at~

1; RSOF

at~~

1-2. The ladder was manufactured by the

kl at~ 2. The ladder had been gifted to the plaintiff by a friend. RSOF at~

7. The ladder was in good condition and had a warning and instruction label 2 on it. SOF
at~

7.
The label complied with the standards promulgated by the American National

Standards Institute (the "ANSI Standards").
voluntary. RSOF

at~

kl at~ 13. The ANSI Standards_are

20. "The ANSI standards are not concerned with a person getting

2

The parties use the term "label" and "labels" interchangeably when referring to
the written warning and instructions on the subject ladder.

2

on or off a roof from [a] ladder" and "[t]he physical forces acting on the ladder and
contemplated by ANSI testing are different from the forces acting on the ladder under
the facts of this case." kl at~ 21-22 (citing the Affidavit of Oren Masory). 3 The purpose
of the ANSI Standards is to provide reasonable safety for life, limb and property.

kl at~

15.
The ladder included the following warning and instructions:
WARNING

... Failure to read and follow instructions on the use of this product could
result in serious personal injury or death.
CONSIDER BEFORE EACH USE

8. Pay close attention to what you are doing.
9. Use this product at your own risk.
PROPER SET-UP AND USE

7. Do not over extend. A minimum overlap of sections is required as
follows:
Ladder size up to and including 32' - 3' overlap ...
8. Position ladder against upper support surface. Make sure ladder does
not lean to one side ...

12. Check that top and bottom of ladder are properly supported ...
3

The defendant has moved to exclude the plaintiff's liability expert, Oren Masory,
under Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579 (1993). Because the
instant motion for summary judgment can be resolved without resorting to Mr. Masory's
opinions to establish an issue of fact, the Court does not need to rule on the Daubert
motion before addressing the instant summary judgment motion.

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14. Keep body centered between side rails. Do not overreach. Get down
and move ladder as needed.

17. Avoid pushing or pulling off to side of ladder ...
SOF at ii 11 (quoting Exhibit "C"); RSOF at ii 24. "The warning labels require that a user
extend the ladder three feet above the roof surface making it impossible (or extremely
dangerous) to climb over the top of the ladder" and "[t]here is no way to get from the
ladder to the roof while complying with that warning label instruction." RSOF at iiii 2526. Other materials created by the defendant "have no instructions whatsoever on how
to get on or off a roof." Id. at il 27.
The plaintiff read the warning and instruction label prior to using the ladder. SOF
at ii 8; RSOF at ii 8. The plaintiff testified that the label was adequate as to the
positioning and set up of the ladder. RSOF at ii 9. Having read the label, the plaintiff
"had no questions, curiosities, issues or concerns with how to properly set up the
ladder." kl at 10. "[The p]laintiff does not dispute that he testified he did not rely on the
ladder labels when setting up the ladder." RSOF at ii 12.
The plaintiff's expert testified that the label did not cause the plaintiff's injuries.
RSOF at ii 16; Affidavit of Oren Masory (DE# 23-4 at ii 3, 1/30/18). The plaintiff's expert
is not and does not consider himself to be an expert in the field of warnings. SOF at ii
17; RSOF at ii 17.

4

STANDARD OF REVIEW
The Court, in reviewing a motion for summary judgment, is guided by the
standard set forth in Federal Rule of Civil Procedure 56(a), which states as follows:
A party may move for summary judgment, identifying each claim or
defense--or the part of each claim or defense--on which summary
judgment is sought. The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. The court should state
on the record the reasons for granting or denying the motion.
Fed. R. Civ. P. 56(a).
The moving party bears the burden of meeting this exacting standard. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). That is, "[t]he moving party bears 'the
initial responsibility of informing the ... [C]ourt of the basis for its motion, and
identifying those portions of the "pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any," which it believes demonstrate the
absence of a genuine issue of material fact."' U.S. v. Four Parcels of Real Prop., 941
F.2d 1428, 1437 (11th Cir. 1991) (quoting Celotex, 477 U.S. at 323). In assessing
whether the moving party has satisfied this burden, the Court is required to view the
evidence and all factual inferences arising therefrom in the light most favorable to the
non-moving party. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir. 1994). Summary
judgment is appropriate when there is no dispute as to any material fact and only
questions of law remain.

kl If the

record presents factual issues, the Court must deny

the motion and proceed to trial. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
Despite these presumptions in favor of the non-moving party, the Court must be
mindful of the purpose of Rule 56 which is to eliminate the needless delay and expense

5

to the parties and to the Court occasioned by an unnecessary trial. Celotex, 477 U.S. at
322-23. Consequently, the non-moving party cannot merely rest upon his bare
assertions, conclusory allegations, surmises or conjectures.

kl As the Supreme Court

noted in Celotex:
[T]he plain language of Rule 56(c) mandates the entry of summary
judgment ... against the party who fails to make a showing sufficient to
establish the existence of an element essential to the party's case, and on
which the party will bear the burden of proof at trial. In such a situation,
there can be "no genuine issue as to any material fact," since a complete
failure of proof concerning an essential element of the non-moving party's
case necessarily renders all other facts immaterial.

kl

at 322-323. Thus, the mere existence of a scintilla of evidence in support of the

non-moving party's position is insufficient. There must be evidence on which the jury
could reasonably find for the non-movant. Anderson v. Liberty Lobby. Inc., 477 U.S.
242, 251 (1986).
ANALYSIS
The defendant seeks summary judgment in its favor on the portion of Count II
which alleges that the defendant breached its duty by "[f]ailing to warn users of the
design defects in the Ladder." Amended Complaint (DE# 1-3 at~ 23(d)). 4 Specifically,
the defendant argues that it is entitled to summary judgment on the plaintiff's failure to
warn claim because: "(1) [the defendant]'s warning and instruction label is 'accurate,
clear and unambiguous'; (2) Plaintiff did not rely on the applicable warning and
instruction label; and (3) Plaintiff has not proffered any expert testimony on the issue of

4

Count 11 alleges other breaches by the defendant which are not the subject of
the instant motion for partial summary judgment. See Amended Complaint (DE# 1-3 at
~ 23).

6

the alleged 'inadequacy' of the ladder's labels." Motion at 8.
"Products can suffer three types of defects: design, manufacturing, and
inadequate warning." Zaccone v. Ford Motor Co., No.

2:15-CV~287-FTM-38CM,

2017

WL 1376160, at *3 (M.D. Fla. Apr. 17, 2017) (citing Jennings v. BIC Corp., 181 F.3d
1250, 1255 (11th Cir. 1999)). "Under Florida law, a manufacturer and distributor of a
product have a duty to warn of the inherent dangers associated with a product when the
product has dangerous propensities." Pinchinat v. Graco Children's Prod .. Inc., 390 F.
Supp. 2d 1141, 1149 (M.D. Fla. 2005) (citing Advance Chem. Co. v. Harter, 478 So.2d
444, 447 (Fla. 1st DCA 1985)). As one court has noted:
A manufacturer must take reasonable precautions to avoid reasonably
foreseeable injuries to the users of its products, and thereby assumes a
duty to convey to the users of that product a fair and adequate warning of
the dangerous potentialities of the products so that the user, by the
exercise of reasonable care, will have fair and adequate notice of the
possible consequences of the product's use or misuse.
.
I

kl (citing Humphreys v. General Motors Corp., 839 F.Supp. 822, 829-30 (N.D. Fla.
1993)).
"Under Florida law, '[s]trict liability and negligent failure to warn cases boil down
to three elements that Plaintiff must prove: 1) that the warnings accompanying the item
were inadequate; 2) that the inadequacy of the warnings proximately caused Plaintiffs
injury; and 3) that Plaintiff in fact suffered injury by using the product."' Alvarez v. Gen .
. Wire Spring Co., No. 8:07-CV-1319-T-33TGW, 2009 WL 248264, at *8 (M.D. Fla. Feb.
1, 2009) (quoting Colville v. Pharmacia & Upjohn Co., LLC, 565 F.Supp.2d 1314, 1321
(N.D. Fla. 2008)).

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With respect to the causation element, the defendant argues that:
Plaintiff's lack of reliance on the warning and instruction label
accompanying the subject ladder is fatal to his.failure to warn claim. If
Plaintiff did not rely on the warning and instruction label attached to the
ladder, Plaintiffs claim that the label was "inadequate" is unsubstantiated
and misplaced. There can be no causation for failure to warn
·
unless Plaintiff relied on the warning and label to provide him with
information to prevent the alleged incident from occurring and that a
different warning would have prevented his alleged injured.
Motion at 10.
The plaintiff responds that "[he] does not intend to argue that the ladder warning
labels (or their ambiguity) necessarily caused Plaintiffs fall" and that "there is evidence
from which a jury could infer that Defendant failed to warn of design defects inherent to
this type of ladder, especially in applications involving roof structures." Response at 1.
The plaintiff does not otherwise address the defendant's argument that the plaintiff
cannot show that the label proximately caused his injury because he did not rely on the
label.
At the summary judgment stage, the plaintiff must point to record evidence which
creates an issue of fact as to causation, an essential element of the plaintiffs failure to
warn claim. See So. Solvents, Inc. v. New Hampshire, Ins. Co., 91 F.3d 102, 104 (11th
Cir. 1996) (per curiam) (stating that when the movant meets its burden on summary
judgment, "the non-movant must then designate, by affidavits, depositions, admissions,
and answers to interrogatories, specific facts showing the existence of a genuine issue
for trial."). Instead of meeting his burden, the plaintiff states that "[he] does not intend to
argue that the ladder warning labels (or their ambiguity) necessarily caused Plaintiff's
fall." Response at 1.

8

There are numerous products liability cases which hold that a consumer's failure
to read a warning label on a product defeats a failure to warn claim. See Leoncio v.
Louisville Ladder. Inc., 601 F. App'x 932, 933 (11th Cir. 2015) (per curiam) (affirming
summary judgment for the manufacturer and noting that "Florida law is clear that [the
plaintiff]'s failure to read the warning cuts off [defendant]'s liability based on the alleged
inadequacy of the warning."); Alvarez v. Gen. Wire Spring Co., No.
8:07-CV-1319-T-33TGW, 2009 WL 248264, at *9 (M.D. Fla. Feb. 1, 2009) (stating that
"[b]ecause Mr. Alvarez did not read the warnings, the Alvarezes cannot show that the
failure to warn was the proximate cause of Mr. Alvarez's injuries."); Lopez v. S.
Coatings, Inc., 580 So. 2d 864, 865 (Fla. 3d DCA 1991) (stating that "[w]here the
person to whom the manufacturer owed a duty to warn-in this case, the painter - has
not read the label, an inadequate warning cannot be the proximate cause of the
plaintiffs injuries.").
Here, it is undisputed that the plaintiff read the label. SOF

at~

8; RSOF

at~

8.

However, the plaintiff also acknowledged that he did not rely on the label to set up the
ladder. RSOF

at~

12. Because the plaintiff read, but did not rely on the label, the

plaintiff cannot show that the inadequate label proximately caused the plaintiff's fall.
"Where the undisputed facts demonstrate the plaintiff disregarded or ignored an
allegedly inadequate warning, the plaintiff cannot establish an ineffective warning was
the proximate cause of his injuries, and summary judgment against the plaintiff is
appropriate." Leoncio v. Louisville Ladder, Inc., No. 13-21837-CIV, 2014 WL 11429056,
at *4 (S.D. Fla. Apr. 8, 2014), aff'd, 601 F. App'x 932 (11th Cir. 2015) (emphasis added;

9

footnote omitted) (granting summary judgment for defendant where plaintiff failed to
read warning label).
The plaintiff has also not presented any evidence of what adequate warnings
should have been given or cited any record evidence that he would have relied on the
warning and instruction label had the defendant provided an adequate one. "To
establish proximate cause, a plaintiff must prove that had the manufacturer provided an
adequate warning, Plaintiff would have changed his behavior so as to avoid injury."
Gwaltney v. lntermetro Indus. Corp., No. 8:08-CV-1281-T-17TBM, 2009 WL 10670209,
at *4-5 (M.D. Fla. Aug. 19, 2009) (granting summary judgment for the defendant on the
issue of causation where "[p]laintiff ha[d] not presented any alternative warning that
Plaintiff believe[d wa]s adequate, nor ha[d p]laintiff presented evidence suggesting that
[p]laintiff's behavior on the day of the accident would have been changed.").
Additionally, the plaintiff states in his response that "[he] does not intend to argue
that the ladder warning labels (or their ambiguity) necessarily caused Plaintiff's fall."
Response at 1. The plaintiff's expert also testified that the label did not cause the
plaintiff's injuries. RSOF

at~

16. "A plaintiff must demonstrate that any alleged

deficiencies or defects in a warning were the proximate cause of his injuries."
Leoncio, 2014 WL 11429056, at *4. The plaintiff's failure to cite to any record evidence
to support an essential element of his claim - proximate cause - precludes the Court
from submitting this element to the jury and entitles the defendant to summary
judgment on the failure to warn claim in Count II.
Because the Court will grant summary judgment for the defendant on the issue
of causation, the Court will not address the defendant's other arguments: the
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purportedly "accurate, clear and unambiguous" label and the necessity of a warnings
expert in this type of case.
CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED that the Defendant's Motion for Partial Summary
Judgment Against Plaintiff and Incorporated Memorandum of Law (DE# 18, 1/2/18) is
GRANTED. The defendant is entitled to summary judgment on the failure to warn claim
in Count II.
DONE AND ORDERED in Chambers, Miami, Florida, this_/_ day of March,
2018.

Copies to:
All Counsel of Record

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