Mcgaffin et al v. Cementos Argos S.A. et al
ORDER granting in part and denying in part 28 Motion to Dismiss. Plaintiffs may proceed on their negligent design and manufacture claim to the extent that they allege that Argos is liable because the dust damages their real and personal property a nd requires them to clean. They may proceed on their negligent failure to warn claim, except insofar as they allege that Argos is liable for damage to their Argos concrete itself. They may proceed in their effort to seek class certification. The remainder of their claims is dismissed. Signed by Chief Judge Lisa G. Wood on 1/13/17. (slt)
u the Uniteb Otatem;)itrid Court
for the boutbern Ditrttt of Otorgia
JIM and BECKY MCGAFFIN, RACHALE
and NATHAN LaVOIE, and DANIEL
and STEFANIE NIJNN,
CEMENTOS .ARGOS S .A.; ARGOS USA
CORP.; ARGOS CEMENT, LLC; and
ARGOS READY MIX LLC,
Before the Court in this product liability case is
Defendants Cementos Argos S.A.; Argos USA Corp.; Argos Cement,
LLC; and Argos Ready Mix LLC's (collectively, "Argos") Motion
to Dismiss Plaintiffs' Amended Class Action Complaint, dkt.
no. 28. The Motion has been fully briefed, dkt. nos. 37, 41,
and is now ripe for decision.
Plaintiffs Jim and Becky McGaf fin, Rachale and Nathan
LaVoie, and Daniel and Stefanie Nunn allege that Argos
concrete is deficient, causing tremendous amounts of dust that
fills their homes. See generally Dkt. No. 23. Although
Plaintiffs cannot sue Argos for damage to the concrete itself
because of the economic loss rule, they have adequately
alleged that the dust has damaged other property and requires
cleaning. Thus, for the reasons stated below, Argos's motion
will be GRANTED in part and DENIED in part.
Under Federal Rule of Civil Procedure 12(b) (6), the Court.
assumes the truth of the facts alleged in the complaint.
Argos manufactures concrete and supplied at least 250 homes
during the time period relevant to this case. Dkt. No. 23 at
2. Argos holds itself out to be "an expert in the field of
concrete design and manufacture." Id. at 9.
According to the complaint, Argos concrete is defective
because of "insufficient amounts of Portland cement and/or too
much fly ash' and/or too much poor quality fly ash." Id. at
11. This means that Argos concrete used in Plaintiffs' homes
"did not set, harden or otherwise perform properly . . . with
the result that it continually . . . releases a fine, whitecolored silicate dust." Id. at 11-12. This dust "has damaged
Plaintiffs' dwellings and real property as well as their
personal property." Id. at 12. "HVAC systems (including
Allegedly "a by-product of burning coal" that can "display
cementitious . . . behavior." Id. at 3. According to Plaintiffs, "There
is an optimum ratio of fly ash to cement to produce a concrete mixture
that will maximize the technical, environmental, and economic benefits of
fly ash without significantly impacting the rate of construction or
impairing the long-term performance of the finished product. However, a
poorly proportioned concrete mixture, i.e., insufficient cement with too
much or the wrong class fly ash, will not set and harden properly." Id.
components and filters that require frequent changing . . .),
electronic devices (including computer equipment, televisions,
stereos), furniture, carpet, rugs, clothing - literally
everything in the dwellings - is constantly coated, re-coated
and damaged by the fine, white silicate dust .
The dust also poses health risks in the form of
"increase[d] . . . risk of silicosis, lung cancer, other
nonmalignant respiratory disease, as well as renal and
autoixnmune problems." Id.
Plaintiffs describe their injuries as follows:
• The McGaff in Plaintiffs' "concrete on the driveway,
the back patio, and the garage has 'pitted' and disintegrated,
manifesting a fine silicate dust." Id. at 12-13.
"Argos . . . has removed and replaced the concrete on back
patio and put a sealant on the concrete on the garage floor in
an unsuccessful attempt to stop the dusting. The McGaffins'
driveway also develops small holes." Id. at 13.
• The LaVoie Plaintiffs "began having problems with
the concrete in their dwelling and on their driveway. A large
chunk of concrete was missing in the garage. The driveway had
numerous cracks. A fine silicate dust from the concrete in
the slab under the floors of the dwelling infiltrates and
permeates the dwelling." Id.
. The Nunn Plaintiffs "saw a large amount of white
dust being tracked inside the dwelling from the front walkway
area when they were moving into their home . . . Argos
concrete dust appears when a foot is scraped back and forth
over the concrete. . . . Argos removed and replaced the
driveway, front walkway, and sidewalk in front of the Nunns'
dwelling. . . . White dust is still continually produced from
the slab under the carpet in two bedrooms of the Nunn
dwelling, as well as from the slab under the rest of the
flooring . . •" at 14.
Argos has not remediated "concrete in the slabs under the
floors of Plaintiffs' houses." Id. at 14-15.
Plaintiffs sued Argos in this Court on May 6, 2016. See
generally Dkt. No. 1. They amended their complaint on July
21, 2016. Dkt. No. 23. They raise four claims: negligent
design and manufacture, negligent failure to warn, negligent
remediation, and concealment/suppression. Id. at 19-32. They
also seek to bring this case as a class action. Id. at 32.
Argos moved to dismiss on August 18, 2016. Dkt. No. 28. The
parties fully briefed the Motion, dkt. nos. 37, 41, and it is
ripe for decision.
"Determining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires
the . . . court to draw on its judicial experience and common
Ashcroft v. Igbal, 556 U.S. 662, 679 (2009).
complaint must be "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ.
P. 8(a) (2).
Its "Ef] actual allegations must be enough to
raise a right to relief above the speculative level . . .
Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also
It has to "contain inferential
Igbal, 556 U.S. at 678.
allegations from which [the court] can identify each of the
material elements necessary to sustain a recovery under some
viable legal theory." Roe v. Aware Woman Ctr. for Choice
Inc., 253 F.3d 678, 684 (11th Cir. 2001). Although a court
must assume the truthfulness of the complaint's factual
allegations, it is "not bound to accept as true a legal
conclusion couched as a factual allegation."
Allain, 478 U.S. 265, 286 (1986).
Plaintiffs raise four claims: negligent design and
manufacture, negligent failure to warn, negligent remediation,
and concealment/suppression. Dkt. No. 23 at 19-32. They also
seek to bring this case as a class action. Id. at 32. For
the reasons that follow, the first two claims survive in part,
as do the class allegations.
I. PLAINTIFFS' NEGLIGENT DESIGN AND MANUFACTURE CLAIM IS
DISMISSED IN PART.
Plaintiffs allege four categories of injuries from
Argos's negligent design and manufacture: (a) needing to
"inspect and remedy, replace and remove the defective
concrete"; (b) "other damages yet to be identified"; (c)
dangers to Plaintiffs' health and that of their visitors; and
(d) the need to clean, inspect, remedy, repair, and remove
non-concrete property due to dust damage. Dkt. No. 23 at 24.
Only the last allegation survives dismissal.
To prove negligent design and manufacture, Plaintiffs
must establish four elements:
(1) A legal duty to conform to a standard of conduct
raised by the law . . - ; (2) a breach of this
standard; (3) a legally attributable causal
connection between the conduct and the resulting
injury; and (4) some loss or damage flowing to the
plaintiffs legally protected interest as a result of
the alleged breach of the legal duty.
Coney v. Mylan Pharms., Inc., No. 6:11-CV-35, 2012 WL 170143,
at *6 (S.D. Ga. Jan. 19, 2012) (quoting Dixie Grp., Inc. v.
Shaw Indus. Grp., Inc., 693 S.E.2d 888, 895 (Ga. Ct. App.
2010) (quoting Bradley Ctr., Inc. v. Wessner, 296 S.E.2d 693,
695 (Ga. 1982) (citation omitted)))
Argos contests different elements for different allegations, so no
general discussion will be attempted here. If an element is not
discussed, it is because Argos did not argue that it was inadequately pled
and the Court saw no obvious deficiency. See Argo v. Gregory, No. CV 212213, 2014 WL 4467268, at *11 (S.D. Ga. Sept. 10, 2014) ("[T]he onus is
upon the parties to formulate arguments.").
A. The Claim Is Dismissed as to Inspecting, Removing, and
Replacing Defective Concrete.
Plaintiffs allege that Argos's negligence has required
them to "inspect and remedy, replace and remove the defective
concrete." Dkt. No. 23 at 24. This allegation must be
dismissed under Georgia's economic loss rule. "[Tihere can be
no action in negligence to recover the loss of the economic
value of a defective product . . . ." Vulcan Mats. Co. v.
Drilitech, Inc., 306 S.E.2d 253, 254 (Ga. 1983). Plaintiffs
want to recover in negligence for the loss of the value of the
defective concrete. They cannot do so. 3
Plaintiffs contend that they in fact want to recover for
negligent construction. Dkt. No. 37 at 16. But negligent
construction does not apply to providers of building supplies
like Argos—only providers of building services. See Unger v.
Bryant Equip. Sales & Servs., Inc., 335 S.E.2d 109, 111 (Ga.
1985); Fields Bros. Gen. Contractors, Inc. v. Ruecksties, 655
S.E.2d 282, 285 (Ga. Ct. App. 2007); Fussell v. Carl E. Jones
Dev. Co., 428 S.E.2d 426, 427 (Ga. Ct. App. 1993) ("[A]
negligent construction claim arises . . . from breach of a
duty implied by law to perform the work in accordance with
industry standards." (emphasis added)); Howell v. Ayers, 202
S.E.2d 189, 190-91 (Ga. Ct. App. 1973) (describing negligent
Plaintiffs can, however, use "the cost of repairing [or replacing] the
(concrete) to make (it] safe" as a measure for damage to their other
property. Shooshanian v. Wagner, 672 P.2d 455, 464 (Alaska 1983).
construction as part of implied duty found in contracts for
Argos's motion to dismiss is therefore GRANTED as
to Plaintiffs' allegation of damage to their concrete.
B. The Claim Is Dismissed as to Unidentified Damages.
Plaintiffs next allege that Argos's negligence has caused
them "damages yet to be identified." Dkt. No. 23 at 24. This
pleading is too vague, so Argos's motion to dismiss is GRANTED
as to it. See, e.g., Bell Ati. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (observing complaint must "give the defendant
fair notice of what the . . . claim is" (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957), abrogated in other part,
Twomb].y, 550 U.S. at 561-63)).
C. The Claim Is Dismissed as to Health.
Third, Plaintiffs allege that concrete dust threatens
their health and that of their visitors. Dkt. No. 23 at 24.
This allegation must also be dismissed as too vague.
Plaintiffs allege two facts. They say that concrete dust
"is known to increase the risk of silicosis, lung cancer,
other nonmalignant respiratory disease, as well as renal and
autoimmune problems." Id. at 12. This does not adequately
allege "injury to life or limb" under Georgia law. Parker v.
Wellman, 230 F. App'x 878, 881 (11th Cir. 2007) (per curiam)
(unpublished opinion). Alleging "subclinical and cellular
damage" is insufficient without "an identifiable physical
disease, illness, or impairing symptoms." Id. at 882. Thus,
allegations of mere risk are not enough to survive dismissal.
Nor is Plaintiffs' allegation that they "have experienced
increased respiratory symptoms."
Dkt. No. 23 at 15.
Plaintiffs must allege "identifiable" symptoms. Parker, 230
F. App'.x at 882. They clearly have not done so.
Jackson v. Monterey Cty. Jail, No. C 07-1202, 2008 WL 269472,
at *4 (N.D. Cal. Jan. 29, 2008), aff'd, 407 F. App'x 119 (9th
Cir. 2010) (per curiam) (unpublished opinion) (requiring
allegations of "specific occasions on which [the plaintiff]
has suffered respiratory problems, the[ir] nature . . ., and
any medical treatment he has sought and received"); Cf.
Metallo v. Orlando Utils. Comm'n, No. 6:14-CV-1975, 2015 WL
*1 (M.D. Fla. Sept. 1, 2015) (holding adequate
allegations of "respiratory problems"—plus "[s]leepless
nights, violent headaches, . . . frequent sneezing, .
shrill ear ringing" and various other maladies).
Plaintiffs claim support from Buckeye Cotton Oil Co. v.
Ragland, 11 F.2d 231, 233 (5th Cir. 1926), which they say held
adequate an allegation that the plaintiff was "forced to
continually breathe and inhale . . . dust . . . much to her
physical injury." That allegation came from an earlier case
not under the Buckeye Cotton court's review. See Id. The
Buckeye Cotton court found that plaintiff had evidence of
"chronic bronchitis and other respiratory ailments," and that
her foster daughter was "underdeveloped, undersized, and
practically an invalid."
There are no such detailed
Therefore, as to Plaintiffs' health
allegations, Argos's motion to dismiss is
dismissal is WITHOUT PREJUDICE,
because "a more carefully
drafted complaint might state a claim" and health injuries
might materialize in the future. Bank v. Pitt, 928 F.2d 1108,
1112 (11th Cir. 1991) (per curiam), overruled in part, Wagner
v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir.
2002) (en banc) (unanimous opinion).
D. The Claim Survives as to Property Damage.
Plaintiffs assert that Argos's negligence has caused them
to have to clean, inspect, remedy, replace, and remove
property other than their concrete. Dkt. No. 23 at 24.
These allegations survive dismissal. Argos concedes that it
had a duty to prevent "injury to . . . property" other than
the concrete. Dkt. No. 41 at 4; see also O.C.G.A. § 51-1-11
(exempting from economic loss rule "cases where the party
would have a right of action for the injury done independently
of the contract . . . ." (emphasis added)); Unger v. Bryant
Equip. Sales & Servs., Inc., 335 S.E.2d 109, 111 (Ga. 1985)
("[I]ndependently of any duty under . . . contract, the law
These claims are sub-divided in the complaint.
imposed upon the [appellees] the duty not to negligently and
wrongfully injure and damage the property of [the appellant]."
(citations omitted)). It also concedes that Plaintiffs
adequately allege breach, in that Argos supposedly used too
much fly ash in making the concrete. Dkt. No. 28 at 2.
Its response is threefold. It claims that "Plaintiffs do
not allege that [concrete] dust has actually and physically
damaged [their] items." Dkt. No. 28 at 9. It argues that
"[t]he mere presence of dust, alone, is not physical damage."
Id. at 9-10. And it contends that Plaintiffs cannot recover
because the concrete "allegedly cause[d] damage to the larger
chattel in which it was installed"—that is, their homes—and
this "is not 'other property.'" Dkt. No. 28 at 10 n.4. These
i. Plaintiffs allege injury to their property.
Argos is plainly incorrect when it says that Plaintiffs
do not allege property damage. Plaintiffs alleged that they
have to "remedy, replace and remove . . . property." Dkt. No.
23 at 24; see also id. at 15 ("HVAC systems (including
components and filters that require frequent changing due to
the fine, white silicate dust), electronic devices (including
computer equipment, televisions, stereos), furniture, carpet,
rugs, clothing - literally everything in the dwellings - is
constantly coated, re-coated and damaged by the fine, white
silicate dust from the Argos concrete." (emphasis added)).
This allegation is adequate. See Scottsdale Ins. Co. v. Sec.
Fire Prevention, Inc., No. 10-62542, 2011 WL 772779, at *2
(S.D. Fla. Feb. 28, 2011) ("The Complaint in this case clearly
alleges . . . damage[ ] [to] 'the property of [the insured],'
and that [the plaintiff insurer] had to compensate [the
insured] for 'the property damage.'
These allegations are
sufficient to deny Defendant's motion to dismiss."); Centex
Homes v. Mr. Stucco, Inc., No. 8:07-CV-365, 2007 WL 2264622,
at *2 (M.D. Fla. Aug. 6, 2007) ("Plaintiff alleges that
'substantial portions of the homes other than the work of
Accordingly . . . dismissal based upon the economic loss
doctrine is not appropriate." (internal citation omitted)).
ii. Plaintiffs can recover for dust's presence.
Even to the extent Plaintiffs complain of dust alone and
the need to clean it, their claim survives. Most people do
not enjoy living surrounded by dust. For some, it is
downright dreadful. See, e.g., T.S. Eliot, "The Waste Land"
v. 30 (1922), available at http://www.bartleby.com/201/l.html
("I will show you fear in a handful of dust."); but see
"Quotes for Pigpen," IMDb, http://www.imdb.com/character/
ch0043417/quotes (last accessed Dec. 5, 2016) ("Don't think of
it as dust. Think of it as maybe the soil of some great past
civilization. Maybe the soil of ancient Babylon. It staggers
the imagination. [Dusty Pig-Pen] may be carrying soil that
was trod upon by Solomon, or even Nebuchudnezzar." (quoting
This distaste has found its way into law. Georgia courts
have long held that "one cannot be forced to endure [dust]
from the negligence of another." Thrasher v. City of Atlanta,
173 S. E. 817, 824 (Ga. 1934); Cf. Henry v. St. Croix Alumina,
LLC, Civ. No.
1999/0036, 2007 WL 6030275, at *11 (D.V.I. Aug.
10, 2007) (allowing claim that the defendant negligently
allowed dust to cover the plaintiffs' homes to proceed);
Barker v. Geotech Servs., Inc.,
22742, 2006 WL 2060556
(Ohio Ct. App. July 26, 2006) (affirming judgment against
repairer for negligently causing dust damage to home and
personal property). Plaintiffs thus have the right not to put
up with pervasive dust caused by negligence, and to hold Argos
liable for forcing them to choose between removing it and
suffering the consequences. 5
Argos relies on three cases, the first being Satterfield
v. J.M. Huber Corp., 888 F. Supp. 1567
There, a sister district court found that trespass in the form
It is also worth noting that those consequences can be even direr than
they were when Thrasher was decided in 1934, due to the advent of computer
equipment like that Plaintiffs allege they own. See Dkt. No. 23 at 15;
Marco Chiappetta, You're a Dirty, Dirty, Dusty PC, PCWorld (May 6, 2013,
of "indirect invasions such as dust, smoke and noise" is not
compensable without "actual and substantial physical damage
to . . . property." Id. at 1572. But a more recent Georgia
appellate decision held that the pervasive presence of smoke
can be compensable by itself in negligence. In Weller v.
Blake, 726 S.E.2d 698, 700 (Ga. Ct. App. 2012), the plaintiffs
alleged that their neighbors' outdoor fireplace caused their
yard and home to fill with smoke. They did "not allege
actual, tangible injury to their property." Id. at 702. The
Georgia Court of Appeals reversed summary judgment for the
defendants on the plaintiffs' negligence claim. Id.
Plaintiffs here similarly allege that Argos's negligence
has caused their home to fill with dust. If such a claim
could survive summary judgment in Weller, then Plaintiffs'
allegations here are surely adequate. Ergo, Satterfield is
limited to trespass, pervasive particle invasion can be the
sort of compensable damage that it envisioned, or the opinion
has not aged well. In any event, Satterfield does not justify
dismissing Plaintiffs' property allegations.
Argos also cites a nuisance and a condemnation case.
Dkt. No. 41 at 13. These are distinguishable. The nuisance
case held that "[i]f a public project is legislatively
sanctioned it cannot be adjudged a nuisance." Downside Risk,
Inc. v. Metro. Atlanta Rapid Transit Auth., 274 S.E.2d 653,
657 (Ga. Ct. App. 1980). This rule does not apply here. The
condemnation case merely held that "damages from dust
temporarily caused by a public project . . . cannot be
recovered in a condemnation action" because of a "rule
prohibiting the recovery of damages for temporary
inconvenience." Bill Ledford Mot., Inc. v. Dep't of Transp.,
484 S.E.2d 510, 514 (Ga. Ct. App. 1997); see also Downside
Risk, Inc., 274 S.E.2d at 658.
This is not a condemnation
case, there is no public project here, and Plaintiffs have
alleged that the dust is persistent.
Dkt. No. 23 at 12
(alleging property is "constantly coated and re-coated with
this fine silicate dust that cannot be fully removed"). The
condemnation rule does not apply. Plaintiffs' allegations of
pervasive dust and their need to clean it survive.
iii. Plaintiffs can recover for damage to home
components other than the concrete.
Finally, Argos claims that Plaintiffs cannot recover for
damage to their dwellings because these are not "'other
property' separate from [their] component parts," including
the concrete. Dkt. No. 41 at 14. This argument flatly
contradicts Georgia law. A plaintiff "may proceed against [a
defendant] on a theory of negligence where components supplied
by sources other than [the defendant] are damaged due to
defects in the [defendant-supplied] components." Mike
Bajalia, Inc. v. Amos Constr. Co., 235 S.E.2d 664, 665 (Ga.
Ct. App. 1977)
Thus, Plaintiffs' allegation of non-concrete
home damage survives. See, e.g., Dkt. No. 23 at 2.
The cases Argos cites are distinguishable.
that the economic loss rule bars recovery for damage to an
integrated system caused by one part, like a gear pin that
breaks a car transmission. Henderson v. Gen. Mot. Corp., 262
S.E.2d 238, 239 (Ga. Ct. App. 1979); see also Long v. Jim
Letts Oldsmobile, Inc., 217 S.E.2d 602 (Ga. Ct. App. 1975)
(considering engine as part of car). It might seem as though
concrete underneath the flooring is just such a part of an
integrated home. But Mike Bajalia, Inc. forecloses finding
this. The defendant in Mike Bajalia, Inc. supplied a
Mike Bajalia, Inc.'s holding also forecloses Argos's reliance on caveat
See Dkt. No. 28 at 14-15; Dkt. No. 41 at 16-17.
further notes that caveat emptor applies to claims against builders and
See, e.g., Cendant Mobility Fin. Corp. v.
sellers, by realty buyers.
Asuamah, 684 S.E.2d 617, 619 (Ga. 2009); Reininger v. O'Neill, 729 S.E.2d
587, 589 (Ga. Ct. App. 2012); Sosebee v. Hiott, 278 S.E.2d 700, 702 (Ga.
Ct. App. 1981); welding Prods. of Ga. v. S.D. Mullins Co., 193 S.E.2d 881,
883 (Ga. Ct. App. 1972) ("As defendants are not seller-builders, caveat
emptor does not apply."); Amos v. McDonald, 181 S.E.2d 515, 517 (Ga. Ct.
App. 1971), abrogated in part on other grounds, Holmes v. Worthey, 282
S.E.2d 919, 925-26 (Ga. Ct. App. 1981) ("Since [the defendant] was not a
builder-owner or builder-vendor, caveat emptor does not apply."). Argos
did not build or sell Plaintiffs' homes, nor did Plaintiffs purchase
realty from it. Dkt. No. 28 at 5. Thus, caveat emptor does not apply.
' They may not, however, proceed on their related allegation that "[t]he
defective concrete . . . will make [their] dwellings and properties
difficult to sell and to refinance." Dkt. No. 23 at 15. "An allegation
of future injury" can only survive dismissal if "the alleged injury is
'imminent' or 'real and immediate.'" 31 Foster Children v. Bush, 329 F.3d
1255, 1265 (11th Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992); City of L.A. v. Lyons, 461 U.S. 95, 101-02 (1983)).
Rather, it is a mere "'some day'
The injury alleged here is not.
intention[ ]—without any description of concrete plans, or indeed even any
Lujan, 504 U.S. at 564.
specification of when the some day will be."
Argos's motion to dismiss it is therefore GRANTED.
building's space grid. 235 S.E.2d at 225-26. A space grid is
the frame or truss.
John Chilton, preface to
Thus, under Mike Bajalia,Inc., a building's very skeleton is
not integrated enough into it to foreclose recovery for damage
it causes to other parts of the building. Surely, then,
neither are concrete feet integrated enough to prevent
recovery for damage to other home components. 8
One case Argos cites has nothing to do with the economic
loss rule. In Mullis v. Southern Co. Services, Inc., 296
S.E.2d 579, 583-84 (Ga. 1982), the Georgia Supreme Court held
that an electrical system and one of its component circuit
breakers were both real estate improvements for purposes of a
statute of limitations for construction planners. Id. at 581.
Mike Bajalia, Inc. forecloses analogizing to integration
between Argos concrete and Plaintiffs' homes.
The remaining cases Argos relies upon are from outside
Georgia, and so cannot undermine Mike Bajalia, Inc. See Dkt.
No. 28 at 6-7.
Welcome news, one imagines, for King Nebuchadnezzar.
(describing collapse of a silver and gold statue due to damaged clay
feet); "Achilles," GREEKMYTHOLOGY.COrI, http://www.greekmythology.com/Myths/
Heroes/Achilles/achilles.html (last accessed Dec. 5, 2016) (describing
systematic structural damage due to weak foundations).
Plaintiffs' negligent design and manufacture claim
survives, insofar as it alleges personal and real property
damage. To this same extent, Argos's motion to dismiss is
For the reasons above, it is otherwise GRANTED as to
Plaintiffs' negligent design and manufacture claims.
II. PLAINTIFFS' NEGLIGENT FAILURE TO WARN CLAIM IS DISMISSED
Plaintiffs' second claim is for negligent failure to
warn. This claim will not be dismissed—except as to damage to
Plaintiffs' concrete and health, for the reasons above. As
another negligence action, this claim is governed by the same
elements as the preceding one: (1) a legal duty; (2) breach
thereof; (3) legal causation between the breach and the
plaintiff's injury; and (4) legal damage to the plaintiff.
Mylan Pharms., Inc., No. 6:11-CV-35, 2012 WL 170143,
at *6 (S.D. Ga. Jan. 19, 2012).
A. Argos Owed Plaintiffs a Duty to Warn.
A duty has to be owed (a) by the defendant (b) to the
plaintiff. Both needs are satisfied here. "Whether a legal
duty exists is a question of law . ." Rasnick v. Krishna
Hospitality, Inc., 690 S.E.2d 670, 673 (Ga. Ct. App. 2010).
Manufacturers have a duty to warn when they know or reasonably
should know about danger arising from use of their products.
Certainteed Corp. v. Fletcher, No. S15G1903, 2016 WL 6996282,
at *2 (Ga. Nov. 30, 2016). Plaintiffs here allege that Argos
knew or should have known of the concrete defect by the time
that it received complaints and began remediation work in fall
2013. Dkt. No. 23 at 9-10. This pleading is adequate.
Manufacturers' duty extends to consumers and reasonably
foreseeable users. Certainteed Corp., 2016 WL 6996282, at *2;
see also Holmes v. Worthey, 282 S.E.2d 919, 926 (Ga. Ct. App.
1981), aff'd, 287 S.E.2d 9 (Ga. 1982) ("[P]rivity is not
required to found an action for negligence."). Plaintiffs are
in these classes. See R & R Insulation Servs., Inc. v. Royal
Indem. Co., 705 S.E.2d 223, 233 (Ga. Ct. App. 2010). (holding
building-supply manufacturer owes duty to building occupant).
Argos denies having a duty by claiming that it "had no
way to determine who any of the Plaintiffs were." Dkt. No. 28
at 4 n.l. But Argos allegedly found out enough about who had
defective concrete to attempt to remediate the properties of
all three named Plaintiffs, plus other homeowners. Dkt. No.
23 at 13-14, 27. Plaintiffs have adequately pled that Argos
could identify them. Thus, their allegation that Argos owed
them a duty to warn does not fail.
B. Argos Allegedly Breached Its Duty.
A manufacturer can breach the duty to warn by failing to
"adequately communicate . . . [with] the ultimate user," by
not providing "warnings of 'nonobvious foreseeable dangers
from the normal use of [the] products.'" Certainteed Corp.,
2016 WL 6996282, at *2 (quoting Thornton v. E.I. Du Pont De
Nemours & Co., 22 F.3d 284, 289 (11th Cir. 1994)). Plaintiffs
have adequately alleged this. Dkt. No. 23 at 26 (alleging,
after explaining various harms caused by the defective
concrete: "Argos . . has failed to warn Plaintiffs, their
builders, and others with properties that include Argos'
defective concrete of the dangers presented to property and
person . . .
Argos raises two arguments—the obviousness of concrete
deterioration, and Plaintiffs' silence as to whether their
home builders "knew, or should have known, of the alleged
'defect.' Dkt. No. 28 at 4 n.1. Argos first characterizes
the danger complained of by Plaintiffs as obvious and
foreseeable deterioration of the concrete over time. Dkt. No.
28 at 4. Of course everyone expects things to break down as
time goes by. "[T]ime is by its nature the cause . . . of
decay, since it is the number of change, and change removes
Aristotle, PwsIcs bk. 4, part 12 (350 B.C.), trans.
R.P. Hardie & R.K. Gaye, available at http://classics.mit.edu/
Aristotle/physics.4.iv.html. But Plaintiffs bought their
houses new over the past three - and- a-quarter years. Dkt. No.
23 at 3. No one expects that within four years of buying a
new home, "white silicate dust" from the concrete will
"infiltrate[e] and permeat[e] . . . coating and damaging"
everything inside. Id. at 13-14. This is
Argos then argues that it breached no duty because
Plaintiffs did not allege that their builders did not knoor
should not have known of the concrete defects. Dkt. No. 28 at
4 n.1. This is an appeal to the "learned intermediary" rule,
which "relieves a product manufacturer or supplier of this
duty . . . where there is an intermediary with knowledge of
the hazard." Parker v. Schmiede Mach. & Tool Corp., 445 F.
App'x 231, 234 (11th Cir. 2011) (per curiam) (unpublished
opinion). There are two problems with this argument. First,
the rule is a defense, not an element, and so it need not be
pled away in the complaint. See, e g., Dietz v. Smithkline
Beecham Corp., 598 F.3d 812, 814 (11th Cir. 2010). The second
is that Plaintiffs specifically alleged that "Argos .
failed to warn . .. . [their] builders . . . of the dangers."
Dkt. No. 23 at 26. The mere presence of a builder does not
trigger the learned intermediary rule unless the defendant
shows that the builder knew of the alleged defects. See R & R
Insulation Servs., Inc., 705 S.E.2d at 428. Argos has made no
such showing here. Thus, Plaintiffs adequately alleged that
Argos breached its duty to warn.
C. Plaintiffs Adequately Allegedly Causation.
Argos does not contest Plaintiffs' causation allegation.
The complaint states that "[a]s a direct and proximate result
of Defendant Argos's failures to warn . . . the Plaintiffs and
the [proposed] Class have suffered and will continue to
suffer." Dkt. No. 23 at 27. Without an allegation that
Plaintiffs would not have Argos concrete but for Argos's
failure to warn, this paragraph "border[s] on conclusory."
Brazil v. Janssen Research & Dev., LLC, No. 4:15-CV-0204, 2016
WL 3748771, at
*8 (N.D. Ga. July 11, 2016) (considering
complaint that did allege but-for causation).
However, the Court finds it an adequate pleading "in
light of [Argos's] failure to object[,] . . . some support in
the case law," and "common sense." Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009); Monelus
Tocodrian, Inc., 609 F. Supp.
2d 1328, 1339 (S.D. Fla. 2009) (discussing award of costs);
see also Argo v. Gregory, No. CV 212-213, 2014 WL 4467268, at
*11 (S.D. Ga. Sept. 10, 2014) ("[T]he onus is upon the parties
to formulate arguments."); Powell Duffryn Terminals, Inc. v.
Calgon Carbon Corp., 4 Supp. 2d 1198, 1202 (S.D. Ga. 1998)
(holding allegation that "failure to warn was the proximate
cause" adequate). Plaintiffs are home purchasers who, as
Argos points out, do not select the components of their
properties a la carte. See Dkt. No. 28 at 5
("Homeowners . . . bargain for the finished [dwellings], not
their various components." (quoting Reilly v. La. Pac. Corp.,
No. 6:12-CV-837, 2013 U.S. Dist. LEXIS 190094, at *17 (M.D.
Fla. Sept. 30, 2013)). It would not be Plaintiffs' job to opt
for another concrete, but rather, that of their builders, and
as Argos says, "Plaintiffs cannot speak for a non-party to
this litigation." Dkt. No. 28 at 4 n.1.
Nevertheless, Plaintiffs pled
"that allow the
court to draw the reasonable inference" that they would not
have received Argos concrete given an adequate warning.
Iqbal, 556 U.S. at 678. Namely, Plaintiffs want to replace
the defective concrete with "appropriate, non-negligently
designed and manufactured concrete." Dkt. No. 23 at 40. The
Court can reasonably infer that if non-defective concrete
exists, then Plaintiffs' builders would have gone with it,
given adequate warning. Cf. Universal Underwriters Ins. Co.
v. Smith, 322 S.E.2d 269, 273 (Ga. 1984) (observing it is
"'easy' for an injured person to testify that had he not
relied on [silence in place of a warning], he would have
taken . . . precautionary steps."). Plaintiffs adequately
plead that Argos's failure to warn caused their injuries.
D. Plaintiffs Alleged Compensable and Non-Compensable
Lastly, Plaintiffs allege a mix of damages that can be
compensated and others that cannot. For the reasons explained
in Parts l.A and I.C., Argos's motion to dismiss is GRANTED as
to Plaintiffs' negligent failure to warn claim insofar as they
allege damage to their concrete and health. 9 Dkt. No. 23 at
("Argos failed to warn Plaintiffs, their builders, other
property owners, and other foreseeable persons that it's [sic]
concrete would have an increased propensity to crack, flake,
scale, pit or dust . . . and would pose a significantly
increased risk of . . . personal injury."). But it is DENIED
as to Plaintiffs' property damage allegations. Id. at 25-27.
III. PLAINTIFFS' NEGLIGENT REMEDITION CLAIM IS DISMISSED.
Plaintiffs' third claim is negligent remediation. This
is simply another rendition on negligence. Dkt. No. 37 at 67. This claim will be dismissed because Plaintiffs have not
adequately alleged that Argos breached any duty that it owed
them. As with the two negligence claims above, Plaintiffs
must properly plead four elements: (1) a duty on Argos's part;
(2) Argos's breach; (3) a cause connecting the breach and
Plaintiffs' injury; and (4) legally cognizable damages. Coney
Again, Plaintiffs' can still use "the cost of repairing (or replacing)
the [concrete] to make [it] safe" as a measure for damage to their other
property. Shooshanian v. Wagner, 672 P.2d 455, 464 (Alaska 1983).
v. Mylan Pharms., Inc., No. 6:11-CV-35, 2012 WL 170143, at *6
(S.D. Ga. Jan. 19, 2012).
Plaintiffs adequately allege that Argos owed them a duty
when it undertook remediation efforts. Again, the existence
of a duty is a legal question. Rasnick v. Krishna
Hospitality, Inc., 690 S.E.2d 670, 673 (Ga. Ct. App. 2010).
Plaintiffs assert that Argos carried out some remediation work
on their properties. Dkt. No. 23 at 13-14. In particular,
they allege that Argos remediated features outside of their
homes, such as driveways, walkways, a patio, and a garage
floor. See id. They correctly claim that "Argos . . . had a
duty . . . to conduct those . . . remediation efforts . . . in
a workman-like manner." Id. at 18; see also Osowski
586 S.E.2d 71, 73 (Ga. Ct. App. 2003).
But Plaintiffs do not allege that the remediation efforts
Argos undertook were negligently performed. Rather, they
claim that Argos breached a duty to expand that remediation
into their homes' interiors. Dkt. No. 23 at 28. The way that
Plaintiffs see it, Argos did not just voluntarily undertake to
remediate the exteriors of their properties. It voluntarily
undertook to remediate all of their defective concrete. This
is a leap too far. That Argos took a bite at the exterior
remediation apple does not mean that it must now eat the
interior remediation orange, too. Cf. Great N. Ins. Co. v.
Ruiz, 688 F. Supp. 2d 1362, 1380 (S.D. Ga. 2010) ("Even
assuming the Association assumed a duty to provide general
security, it is plain that the Association never assumed a
duty to regularly monitor surveillance monitors for the
purpose of residential fire prevention.").
Nor does Plaintiffs' allegation that Argos remediated
interior concrete in others' homes let the Court infer that
Argos undertook to do this for everyone. Dkt. No. 23 at 10.
"[E]very person owes . . . a duty to exercise ordinary care to
guard against injury which flows . . . [from] his act"—not his
decision not to act elsewhere. Sims v. Am. Cas. Co., 206
S.E.2d 121,129 (Ga. Ct. App. 1974) (citation omitted). True,
in Rymer v. Polo Golf & Country Club Homeowners Association,
Inc., 780 S.E.2d 95, 102 (Ga. Ct. App. 2015), reconsideration
den'd Dec. 8, 2015, the Georgia Court of Appeals held that the
defendant homeowners association might have undertaken to
repair the plaintiff's drainage damage based, in part, on its
indicating that it would replace a non-plaintiff homeowner's
pipes. But there was a lot of other evidence that the
defendant agreed to repair damage throughout the subdivision.
It commissioned a subdivision drainage study, started
collecting subdivision repair funds, said that it was
addressing problems throughout the subdivision, "promised to
make repairs to the [plaintiff's] Property," selected a
contractor, and obtained consent to inspect homeowners'
properties. Id. Plaintiffs here, by contrast, have only
alleged that Argos did some interior concrete remediation in
properties belonging to others. This is not akin to the
systematic allegations the Rymer plaintiff made.
Plaintiffs have not alleged that Argos negligently
performed any remediation effort that it actually voluntarily
undertook. For this reason, Argos's motion to dismiss
Plaintiffs' negligent remediation claim is GRANTED.
IV. PLAINTIFFS' CONCEALMENT/SUPPRESSION CLAIM IS DISMISSED.
Plaintiffs' penultimate plaint is for
concealment/suppression. This claim will be dismissed because
Plaintiffs lacked any direct relationship with Argos.
Concealment/ suppression is a fraud claim. See, e.g., Woodall
v. Orkin Exterminating Co., 332 S.E.2d
(Ga. Ct. App.
Argos cannot be liable to Plaintiffs for fraud because
it "was not a party to [any] contract" with them and
Plaintiffs "do[ ] not allege that [Argos] had any knowledge of
the sale" of the homes to them, so they "cannot claim [that
Argos] was under a duty to disclose to [them] the defect."
Moore v. Meeks,
(Ga. Ct. App. 1997); see
also McCabe v. Daimler AG, 160 F. Supp. 3d
("Plaintiffs have failed to cite to a single case in
which a court has applied Georgia law to find a duty to
disclose outside of a confidential or special relationship in
facts similar to this case, where there is no evidence that
Defendants had direct knowledge of Plaintiffs' purchases of
the (items] in question and had no apparent relationship with
Therefore, Argos's motion to dismiss is
GRANTED as to Plaintiffs' concealment/suppression claim.
V. PLAINTIFFS' CLASS ALLEGATIONS ARE NOT STRICKEN.
allegations . . . Plaintiff [s], however, ha[ve] not yet filed
a motion for class certification. The Court finds dismissal
of Plaintiff[s'] class allegations inappropriate at this
time." Lewis v. Scotbilt Homes, Inc., No. CV510-016, 2010 WL
11066490, at *9 (S.D. Ga. Oct. 27, 2010). This is so despite
Argos's concerns about the potential size of the class, and
its attack on commonality and predominance. See Dkt. No. 41
at 21-22; Martorella. v. Deutsche Bank Nat'l Tr. Co., 931 F.
Supp. 2d 1218, 1228 (S.D. Fla. 2013) (considering class
allegations involving all Floridians with mortgages through a
servicer over six years, despite defendant attacks on
misrepresentations let them escape the economic loss rule. Dkt. No. 37 at
19-20. Argos did not owe a duty against misrepresentation to all
foreseeable users of its information, but only to those whom it was
"actually aware [would] rely upon the information." Badische Corp. v.
caylor, 356 S.E.2d 198, 200 (Ga. 1987). Although Plaintiffs were
certainly foreseeable concrete users, they have not alleged that Argos was
actually aware that they would rely on any of its representations. The
economic loss rule therefore applies with full force to Plaintiffs' claims
for damage to their concrete, as discussed in Part I.A.
of class certification is generally not addressed on a motion
to dismiss. [T]he shape and form of a class action evolves
only through the process of discovery, and it is premature to
draw such a conclusion before the claim has taken
form." (citations and quotation marks omitted) (alteration in
For the reasons above, Argos's Plaintiffs' Amended Class
Action Complaint, dkt. no. 28, is GRANTED in part and DENIED
in part. Plaintiffs may proceed on their negligent design and
manufacture claim to the extent that they allege that Argos is
liable because the dust damages their real and personal
property" and requires them to clean. They may proceed on
their negligent failure to warn claim, except insofar as they
allege that Argos is liable for damage to their Argos concrete
They may proceed in their effort to seek class
The 'remainder of their claims is hereby
" Again, though, they may not proceed on their allegations relating to
future home sale and refinancing.
SO ORDERED, this 13th day of January, 2017.
LI GODBE W OD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?