Bennett v. Poipu Resort, Partners, L.P. et al

Filing 177

ORDER GRANTING IN PART AND DENYING IN PART THIRD-PARTY DEFENDANT AND COUNTERCLAIMANT EMSER TILE, LLC'S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO. 95) - Signed by JUDGE ALAN C. KAY on 9/7/2021.For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Emser's Motion for Partial Summary Judgment, ECF No. 95, as follows:1. Emser's Motion for Partial Summary Judgment with regard to the Owners' breach of express and implied warranties is GRANTED.2. Emser's Motion for Partial Summary Judgment of the Owners' failure to warn claim is DENIED.3. To the extent that the Owners assert a claim under negligent misrepresentation based on the value of damage to the product, that is, to the tile itself, Emser's Motion for Partial Summary Judgment is GRANTED. As to any other claim under the negligent misrepresentation claim, Emser's Motion for Partial Summary Judgment is DENIED.(jni)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
___________________________________
)
BEVERLY K. BENNETT,
)
)
Plaintiff,
)
)
v.
) Civ. No. 18-00171 ACK-KJM
)
POIPU RESORT PARTNERS, L.P., a
)
Domestic Limited Partnership;
)
DIAMOND RESORTS INTERNATIONAL
)
CLUB, INC., a Foreign Profit
)
Corporation; ASSOCIATION OF
)
APARTMENT OWNERS OF POIPU
)
POINT, a Domestic Nonprofit
)
Corporation,
)
)
Defendants.
)
___________________________________)
)
POIPU RESORT PARTNERS, L.P., a
)
Domestic Limited Partnership;
)
DIAMOND RESORTS INTERNATIONAL
)
CLUB, INC., a Foreign Profit
)
Corporation; ASSOCIATION OF
)
APARTMENT OWNERS OF POIPU
)
POINT, a Domestic Nonprofit
)
Corporation,
)
)
Third-Party
)
Plaintiffs,
)
)
v.
)
)
EMSER TILE, LLC, a California
)
Corporation; JOHN DOES 1-10;
)
JANE DOES 1-10; ROE
)
CORPORATIONS 1-10; ROE
)
PARTNERSHPS 1-10; ROE
)
BUSINESS ENTITIES 1-10,
)
)
Third-Party
)
Defendants.
)
___________________________________)
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ORDER GRANTING IN PART AND DENYING IN PART THIRD-PARTY DEFENDANT
AND COUNTERCLAIMANT EMSER TILE, LLC’S MOTION FOR PARTIAL SUMMARY
JUDGMENT (ECF No. 95)
Plaintiff Beverly Bennett brought this lawsuit to
recover damages stemming from her fractured femur after she
slipped and fell on wet tile while walking back to her vacation
condominium at the Point at Poipu.

Bennett sued the owners of

the Point at Poipu-Poipu Resort Partners, L.P., Diamond Resorts
International Club, Inc., and the Association of Apartment
Owners of Poipu Point (collectively, the “Owners”)-for
negligence.

In turn, the Owners filed a Third-Party Complaint

against the company that manufactured the tiles, Emser Tile,
LLC.

Emser now moves for partial summary judgment on the breach

of warranty, failure to warn, and negligent misrepresentation
claims against it, ECF No. 95.
For the reasons discussed below, the Court GRANTS IN
PART AND DENIES IN PART Emser’s Motion for Partial Summary
Judgment, ECF No. 95.

BACKGROUND
I.

Factual Background
The following facts are principally drawn from the

Complaint, ECF No. 1, the First Amended Third-Party Complaint

2

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(“FAC”), ECF No. 69, Emser’s concise statement of facts (“CSF”),
ECF No. 96, and the Owners’ CSF, ECF No. 162.
a. The Point at Poipu Renovation
In 2012, the Owners of The Point at Poipu, a timeshare resort in Kauai, undertook an estimated five-year
renovation of the property.

See Mot. at 1.

The renovation

included installation of ceramic tiles on the walking surfaces
at the ten resort buildings.

Id.

The Owners hired Building

Envelope Technology & Research, Inc. (“the architect”) as the
architect, Layton Construction Company (“Layton”) as the general
contractor, and Global Stone, Inc. (“Global Stone”) as the tile
subcontractor.

Id.

supply the tiles.

Layton in turn contracted with Emser to
Id. at 5.

When the Owners were choosing between two types of
tiles for the renovation, Emser sent its product information,
known as a “cut sheet” to Layton on September 10, 2012.
Emser Ex. C; Johnson Decl. ¶ 14.

See

Among this information were

specifications for the Bombay tile line, stating that the
coefficient of friction of the Bombay tiles based on the ASTM
C1028 test was equal to or greater than 0.60 wet.
C.

See Emser Ex.

In layman’s terms, the coefficient of friction is “the

degree of slip resistance.”

Mihailovich v. Laatsch, 359 F.3d

892, 896, n.2 (7th Cir. 2004); see also Shorter Oxford English
Dictionary 1035 (5th ed. 2002) (defining the coefficient of
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friction as “the ratio between the force necessary to move one
surface horizontally over another and the normal force each
surface exerts on the other”).

“The higher the [coefficient of

friction], the less slippery the [surface] w[ill] be.”
Mihailovich, 359 F.3d at 921 n.2.

At the hearing, Emser’s

counsel admitted that Emser is unable to identify which precise
laboratory generated the 0.6 coefficient of friction both wet
and dry supplied on the cut sheet.
Other than providing information requested by the
contractors, Owners, and the architect, Emser was not involved
in the selection of the tile installed during the project.
Johnson Decl. ¶ 18.

The Emser employee responsible for

corresponding with the Owners, Linda Hart, was aware that one of
the Owners (Diamond Resorts) “always wanted to make sure that
[the tile] hit at least a .60 [wet coefficient of friction].”
Def. Ex K (Deposition of Linda Hart) at 17:3-23.

Based on that

requirement as well as price and color preferences, Linda Hart
recommended three tile options to the Owners.

Id. at 14:10-14.

After reviewing Emser’s cut sheet and product specifications,
the Owners selected the Bombay tiles in the Salsette color.
Johnson Decl. ¶¶ 16, 19.

Emser sent the first shipment of tiles

to be used at Building 4 within 48 hours of September 28, 2012.
Id. ¶¶ 29, 30.

4

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On October 5, 2012, Global Stone requested assistance
from Emser in providing information to the design consultant.
Id. ¶ 27.

In response to Global Stone’s request, Emser prepared

a “Bombay Master Certificate” that contained information about
the Bombay tiles, including their technical specifications.
Makovski Decl. ¶¶ 14-17.
To prepare the Bombay Master Certificate, Emser
reviewed the results of testing performed by the Title Council
of North America laboratory (the “TCNA laboratory”) that
occurred in June of 2011.

Id. ¶ 20; Emser Ex. 2.

The TCNA

laboratory report stated that the coefficient of friction based
on the ASTM C1028 test was an average of 0.58 wet.
Decl. ¶ 13.

Based on this information, Emser listed the

coefficient of friction as greater than 0.55 wet.
Emser Ex. 3.

Makovski

Id. ¶ 17; see

Emser submitted the Bombay Master Certificate to

Global Stone and Layton on October 11, 2012.

Johnson Decl. ¶

38; see Emser Ex. K; Emser Ex. L.
Two weeks later, the architect asked Emser to revise
and resubmit the Bombay Master Certificate to confirm that Emser
approved the submitted mortar and grout for use and installation
of the Bombay tiles as required for a 10-year system warranty.
Johnson Decl. ¶ 42; see Emser Ex. N, Emser Ex. O.
In response, Emser provided a Revised Bombay Master
Certificate, which repeated that the coefficient of friction of
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the Bombay tiles was greater than or equal to 0.55 wet.

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Decl. ¶ 47; Makovski Decl. ¶ 20; see Emser Ex. 4.

Johnson

The architect

stamped the certificate with the words “Corrections or comments
made on this submittal do not constitute approval or acceptance
of unauthorized deviation from contract documents.

Such

deviations must be requested in writing in accordance with the
requirements of the Contract Documents.”

See Def. Ex. F.

Layton handled the sale of tiles for each building as
separate contracts.

Johnson Decl. ¶ 9; see Emser Ex. A.

Layton

therefore required Emser to submit a separate unconditional lien
waiver as a materials supplier for each building.
¶ 11.

Johnson Decl.

As required by Layton, in September 2014 Emser submitted

the unconditional lien waiver to Layton as a materials supplier
for the tiles that it sold for installation at Buildings 5 and
7.

Id. ¶ 59; see Emser Ex. V.

Emser shipped the tile for

Buildings 5 and 7 on or about September 26, 2014.

Johnson Decl.

¶ 54.
Emser’s invoices stated that each sale was subject to
the Terms and Conditions of Sale (“Terms and Conditions”) found
on Emser’s website.

Johnson Decl. ¶ 56; see Emser Ex. T.

On

its website, Emser provided a one-year warranty for
manufacturing defects and limited the warranty to the direct
purchaser.

See Emser Ex. U.

Emser disclaimed all other

warranties, express or implied, including warranties of
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merchantability and fitness for a particular purpose or use.
Id.
b. Bennett’s Injury at the Point at Poipu
While vacationing at The Point at Poipu in October of
2017, Bennett slipped and fell on the ceramic tiles on the
walkways outside of Building 5.

Compl. ¶ 16.

As a result of

the fall, Bennett fractured her right femur and claims she
suffered “other bodily injuries, mental anguish, and emotional
distress.”

Id. ¶ 17.

She alleges that the Owners knew or

should have known that the tiled walkways would become slippery
when wet.

Id. ¶ 12.

In her Complaint, Bennett claims

negligence, breach of warranty, and nuisance, and requests
punitive damages.

See id. ¶¶ 20, 21, 27.

--- ---

Emser is involved in this litigation as a Third-Party
Defendant.

The First Amended Third-Party Complaint against

Emser alleges:

(1) contribution, subrogation, and indemnity,

(2) breach of express and implied warranties, (3) failure to
warn, (4) negligent misrepresentation, and (5) strict product
liability.
Three lawsuits have been filed as a result of injuries
allegedly sustained in slip and fall accidents at Buildings 5
and 7, and one has been filed in connection with tiles installed
at Building 8.

Mot. at 7.

fell at Building 7.

Id.

On July 18, 2016, La Sonya Allen
Fifteen months later on October 4,
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2017, Bennett fell at Building 5.
Caruso fell at Building 7.

Id.

Id.

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On June 13, 2018, Elrose

On August 13, 2018, the

accident at Building 8 occurred.

Id.

As a part of this litigation, the Owners’ expert
engineer Bernard Maddox tested the leftover boxed Bombay
Salsette tiles from the Poipu project.

Def. CSF ¶ 27.

Using

the ASTM C 1028 protocol, the results of the 2020 test revealed
an average wet coefficient of friction of 0.48.

Id.

The

results of the 2021 test found an average wet coefficient of
friction under 0.49.
II.

Id.

Procedural Posture
Bennett originally brought this lawsuit on May 14,

2018.

See ECF No. 1.

On September 20, 2019, Magistrate Judge

Mansfield issued an order granting the Owners leave to file a
third-party complaint, ECF No. 29, and one week later the Owners
filed a Third-Party Complaint against Emser, ECF No. 30.
parties then entered into mediation a month later.

The

On November

20, 2020, Emser filed a motion for leave to file an amended
answer to assert counterclaim.

ECF No. 56.

All parties

stipulated to allow the Owners to amend their Third-Party
Complaint and Emser to amend its answer.

ECF No. 68.

As a

result, the Owners filed the First Amended Third-Party Complaint
against Emser, Jane Does 1-10, John Does 1-10, Roe Business
Entities 1-10, and Roe Corporations 1-10.
8

ECF No. 69.

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On April 8, 2021, Emser filed the present Motion for
Partial Summary Judgment, ECF No. 95, and a CSF in support, ECF
No. 96.

The Owners filed their Opposition, ECF No. 161, and

their CSF in support, ECF No. 162.
No Position, ECF No. 160.
165.

Bennett filed a Statement of

Emser then filed its Reply, ECF No.

A hearing on the Motion was held on August 24, 2021.

STANDARD
Summary judgment is proper where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(a).

Rule 56(a)

mandates summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to the party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); see also Broussard
v. Univ. of Cal., 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial
burden of informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.”

Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323, 106
S. Ct. at 2553); see also Jespersen v. Harrah’s Operating Co.,
9

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392 F.3d 1076, 1079 (9th Cir. 2004).

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“When the moving party has

carried its burden under Rule 56[(a)] its opponent must do more
than simply show that there is some metaphysical doubt as to the
material facts [and] come forward with specific facts showing
that there is a genuine issue for trial.”

Matsushita Elec.

Indus. Co. v. Zenith Radio, 475 U.S. 574, 586–87, 106 S. Ct.
1348, 89 L. Ed. 2d 538 (1986) (citation and internal quotation
marks omitted and emphasis removed); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986) (stating that a party cannot “rest upon the
mere allegations or denials of his pleading” in opposing summary
judgment).
“An issue is ‘genuine’ only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find
for the nonmoving party, and a dispute is ‘material’ only if it
could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202).
When considering the evidence on a motion for summary judgment,
the court must draw all reasonable inferences on behalf of the
nonmoving party.

Matsushita Elec. Indus. Co., 475 U.S. at 587,

106 S. Ct. 1348, 89 L. Ed. 2d 538; see also Posey v. Lake Pend
Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008)
(stating that “the evidence of [the nonmovant] is to be
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believed, and all justifiable inferences are to be drawn in his
favor” (internal citation and quotation omitted)).

DISCUSSION
As discussed above, the Court must decide whether to
grant Emser partial summary judgment on three claims:

(1)

breach of express and implied warranties, (2) failure to warn,
and (3) negligent misrepresentation.

After deciding initially

that California law applies to the warranty contract claims and
that Hawaii law applies to the failure to warn and negligent
misrepresentation tort claims, the Court GRANTS the Motion as to
the express and implied warranty claims, DENIES the Motion as to
the failure to warn claim, and GRANTS the Motion only to the
extent that the Owners assert a claim under negligent
misrepresentation for the value of the tile.
I.

Choice of Law
As an initial matter, the Court addresses the parties’

arguments regarding choice of law.

Emser argues for application

of California law given the choice of law provision found in its
Terms and Conditions.

Mot. at 13 n.2.

Emser’s Terms and

Conditions state:
Emser and Buyer agree that this agreement shall be deemed
made in Los Angeles, California; that the internal laws
of California shall govern; and that the state or federal
courts sitting in Los Angeles County, California shall
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have jurisdiction and are the proper venue for all
actions hereunder.
Emser Ex. U (emphasis added).

The Owners, on the other hand,

argue for the application of Hawaii law because it asserts there
is a fundamental policy difference as to whether a seller can
disclaim an implied warranty.

Opp. at 17-20 (citing Paige v.

Pulse Bev. Corp., No. 16-00090 ACK-RLP, 2017 WL 11139681, at *9
(D. Haw. Nov. 9, 2017), and other cases).
A federal court sitting in diversity applies the
choice-of-law rules of the forum state.

Nguyen v. Barnes &

Noble, Inc., 763 F.3d 1171, 1175 (9th Cir. 2014).

This Court

must therefore analyze which law applies under Hawaii choice-oflaw rules.
The Hawaii Supreme Court has stated that “[w]hen the
parties choose the law of a particular state to govern their
contractual relationship and the chosen law has some nexus with
the parties or the contract, that law will generally be
applied.”

Airgo, Inc. v. Horizon Cargo Transport, Inc., 66 Haw.

590, 595, 670 P.2d 1277, 1281 (Haw. 1983) (citing Restatement
(Second) of Conflict of Laws § 187(1) (1971)).

Where the

parties’ contract includes a choice of law provision, the Hawaii
Supreme Court is typically “guided by” the Restatement (Second)
of Conflict of Laws.

See Del Monte Fresh Produce (Hawaii), Inc.

v. Fireman’s Fund Ins. Co., 183 P.3d 734, 741 (Haw. 2007)
12

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(citing Airgo, 670 P.2d at 1281); Willcox v. Lloyds TSB Bank,
PLC, Civ. No. 13-00508 ACK-RLP, 2014 WL 12780002, at *7 (D. Haw.
June 10, 2014); Standard Register Co. v. Keala, No. Civ. 1400291 JMS-RL, 2015 WL 3604265, at *6 (D. Haw. June 8, 2015).
Section 187 of the Restatement provides, in relevant part:
. . .
(1)

The law of the state chosen by the parties to govern
their contractual rights and duties will be applied,
even if the particular issue is one which the parties
could not have resolved by an explicit provision in their
agreement directed to that issue, unless either
. . .
(a)

application of the law of the chosen state
would be contrary to a fundamental policy of
a state which has a materially greater
interest than the chosen state in the
determination of the particular issue and
which, under the rule of § 188, would be the
state of the applicable law in the absence of
an effective choice of law by the parties.

Restatement (Second) of Conflict of Laws § 187(1)-(2) (1971).
The Court finds that California law on the issues
before the Court is not contrary to a fundamental policy of
Hawaii because a seller is able to disclaim an implied warranty
of fitness for a particular purpose in either state.

Under both

California and Hawaii statutes, a seller is able “to exclude or
modify any implied warranty of fitness” as long as the exclusion
is “a writing” and “conspicuous.”

13

Cal. Com. Code § 10214; Haw.

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Rev. Stat. § 490:2-316.

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Further, under Hawaii Revised Statute §

490:2-318:
A seller’s warranty whether express or implied extends
to any person who may reasonably be expected to use,
consume or be affected by the goods and who is injured
by breach of the warranty. A seller may not exclude or
limit the operation of this section with respect to
injury to the person of an individual to whom the
warranty extends.
Haw. Rev. Stat. § 490:2-318 (2019).

The Uniform Commercial Code

Comments to Hawaii Revised Statute § 490:2-318 explain that
“[t]he last sentence of this section does not mean that a seller
is precluded from excluding or disclaiming a warranty which
might otherwise arise in connection with the sale provided such
exclusion or modification is permitted by Section 2-316.”

Haw.

Rev. Stat. § 490:2-318 (2019), Uniform Commercial Code Comment
1.

Section 2-316 states, in part:
[T]o exclude or modify the implied warranty of
merchantability or any part of it the language must
mention merchantability and in case of a writing must be
conspicuous, and to exclude or modify any implied
warranty of fitness the exclusion must be by a writing
and conspicuous.
Language to exclude all implied
warranties of fitness is sufficient if it states, for
example, that “There are no warranties which extend
beyond the description on the face hereof.”

Haw. Rev. Stat. § 490:2-316.

Because California and Hawaii law

thus permit a disclaimer of the implied warranty of fitness for
a particular purpose, California law is not contrary to a
fundamental policy of Hawaii.

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Therefore, under Hawaii law, “a choice of law
provision provided for in a contract between the parties will
generally be upheld.”

Smallwood v. NCsoft Corp., 730 F. Supp.

2d 1213, 1225 (D. Haw. 2010) (citation omitted).

Because

California law on this issue is not contrary to a fundamental
policy of Hawaii, the Court will honor the choice of law
provision with regard to the breach of warranty claims.
Contrary to Emser’s argument that the choice-of-law
clause is dispositive and must apply to all claims, the clause’s
significance is tempered because two of the three causes of
action here-failure to warn and negligent misrepresentation-are
torts, and “[c]laims arising in tort are not ordinarily
controlled by a contractual choice of law provision.”

Sutter

Home Winery, Inc. v. Vintage Selections, Ltd., 971 F.2d 401, 407
(9th Cir. 1992); but see Puna Geothermal Venture v. Allianz
Global Risks U.S. Ins. Co., Civ No. 19-00451 SOM-WRP, 2019 WL
6619851, at *4 (D. Haw. Dec. 5, 2019) (interpreting a choice-oflaw provision found in an insurance contract to apply to all
claims arising out of the parties’ contractual relationship).
“Rather, [non-contract claims] are decided according to the law
of the forum state.”

Sutter Home Winery, Inc., 971 F.2d at 407.

The Court must therefore apply Hawaii’s general
choice-of-law test to determine which tort law applies-without
“the strong presumption that arises from a contractual choice
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for contract-based claims.”

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Jou v. Adalian, Civ No. 15-00155

JMS-KJM, 2018 WL 1955415 (D. Haw. April 25, 2018); see, e.g.,
Hawaii Island Air, Inc. v. Merlot Aero Ltd., Civ No. 14-00466
BMK, 2015 WL 675512, at *19 (D. Haw. Jan. 30, 2015) (“This
district has recognized that a choice-of law provision governs
the interpretation of a contract and rights arising therefrom,
but not necessarily the related, non-contractual claims.”)
(citing Prop. Rights. Law Group, P.C. v. Lynch, Civ No. 13-00273
SOM-RLP, 2014 WL 2452803, at *13 (D. Haw. May 30, 2014)).

That

is, for non-contractual claims, Hawaii’s choice-of-law rules
require a determination of which state has “the most significant
relationship to the parties and the subject matter.”

Mikelson

v. United Servs. Auto Ass’n, 107 Haw. 192, 198, 111 P.3d 601,
607 (2005) (internal citation and quotation omitted); see, e.g.,
Hamby v. Ohio Nat. Life Assur. Corp., Civ No. 12-00122 JMS-KSC,
2012 WL 2568149, at *3 (D. Haw. June 29, 2012) (applying
Mikelson to suit alleging breach of contract, bad faith, and
statutory violations); Jou, 2018 WL 1955415, at *6 (applying
Mikelson to suit alleging intentional spoliation of evidence);
St. James v. JP Morgan Chase Bank Corp., Civ No. 16-00529 LEKKSC, 2017 WL 4392040, at *5 (D. Haw. Sept. 29, 2017) (applying
Mikelson to tort claims).
“In making this determination, courts ‘look to factors
such as (1) where relevant events occurred, (2) the residence of
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the parties, and (3) whether any of the parties had any
particular ties to one jurisdiction or the other.’”

Hamby, 2012

WL 2568149, at *3 (quoting Kukui Gardens Corp. v. Holco Cap.
Grp., Civ No. 08-00049 ACK-KSC, 2010 WL 145284, at *5 (D. Haw.
Jan. 12, 2010)).
Applying Mikelson, the Court concludes that Hawaii law
applies to the failure to warn and negligent misrepresentation
claims currently before the Court.

Bennett was injured at the

Point at Poipu in Hawaii, the purchase of the tiles from Emser
was for use at the Point at Poipu in Hawaii, the tile
installation was performed in Hawaii, the architect for the
renovation was licensed in Hawaii, the building code that
applies is that of the County of Kauai, and Emser shipped the
tiles to Kauai.

Def. CSF ¶¶ 15-20.

The final decision to

approve the tiles was made by the Owners in Kauai.

Id. ¶ 18.

Bennett ultimately chose to bring this action in this
jurisdiction and has named witnesses located in Hawaii.
15.

Id. ¶

These factors all indicate that Hawaii has the strongest

interest in resolving the failure to warn and negligent
misrepresentation tort claims.
It is a well-settled principle of conflict-of-law
analysis that different jurisdiction’s laws can apply to
different issues in the same case.

Jou, 2018 WL 1955415, at *6;

see, e.g., Allstate Ins. Co. v. Hague, 449 U.S. 302, 307, 101 S.
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Ct. 633, 637, 66 L. Ed. 2d 521 (1981) (recognizing a principle
“long accepted by this Court, that a set of facts giving rise to
a lawsuit, or a particular issue within a lawsuit, may justify,
in constitutional terms, application of the law of more than one
jurisdiction”) (citations omitted); Berg Chilling Sys., Inc. v.
Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006) (“Because choice of
law analysis is issue-specific, different states’ laws may apply
to different issues in a single case, a principle known as
‘depecage.’”) (citation omitted); DeRoburt v. Gannett Co., 83
F.R.D. 574, 581 n.29 (D. Haw. 1979) (“Traditional choice of law
rules have also been used to apply different rules of law to
different issues arising in the same case.”).
In short, the Court applies California substantive law
to the Owners’ breach of warranty contract claims and Hawaii
substantive law to the Owners’ failure to warn and negligent
misrepresentation tort claims.

Having decided the choice of law

issue, the Court addresses the merits of Emser’s Motion for
Partial Summary Judgment.
II.

Breach of Express and Implied Warranties (Count II)
Emser has moved for partial summary judgment on the

Owners’ claims of breach of express warranty and breach of the
implied warranty of fitness for a particular purpose.
17-19.

Mot. at

As discussed supra, the contractual claim of breach of

warranty will be governed by the choice of law provision
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specifying the application of California law.

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The Court

addresses each claim below. 1/
a. Express Warranty
After first addressing the impact of the disclaimer
found in Emser’s Terms and Conditions, the Court ultimately
GRANTS the Motion on the express warranty claim.
i. The Effect of Emser’s Disclaimer
In its Motion, Emser argues that it disclaimed all
express warranties other than the manufactured products warranty
specifically discussed within its Terms and Conditions. 2/

To the

As an initial matter, the Court finds that the Owners are intended
third-party beneficiaries. In general, privity of contract is required in an
action for breach of express warranty and breach of implied warranty. Burr
v. Sherwin Williams Co., 42 Cal.2d 682, 695 P.2d 1041 (1954); Tapia v. Davol,
Inc., 116 F. Supp. 3d 1149, 1159 (S.D. Cal. 2015). It is undisputed that
Emser entered into a contract with Layton, and thus no privity existed
between Emser and any of the Owners.
But under California Civil Code § 1559, a third-party beneficiary can
enforce a contract made expressly for his benefit. Cal. Civ. Code § 1559;
see Shell v. Schmidt, 126 Cal. App. 2d 279, 272 P.2d 82 (1954) (finding that
the plaintiffs purchasing homes constituted the class intended to be
benefitted and holding that the contract must therefore be for their
benefit). A contract made expressly for a third party’s benefit does not
need to specifically name the party as the beneficiary; rather the only
requirement is that “the party is more than incidentally benefitted by the
contract.” See id.; see also Gilbert Fin. Corp., Steelform Contracting Co.,
82 Cal. App. 3d 65, 69-70, 145 Cal. Rptr. 448, 450 (Ct. App. 1978) (holding
that the plaintiff, as the owner of the building, was an intended beneficiary
of the contract between the general contractor and the subcontractor).
Because Poipu was the ultimate customer who chose the Bombay tiles, and
whom Emser was aware it was providing the tiles for, the Court finds that the
Owners are intended third-party beneficiaries of the contract for the Bombay
tiles between Layton and Emser.
2/
The Manufactured Products warranty in Emser’s Terms and Conditions
reads:
Emser warrants that manufactured products will be free from defect
for a period of one year from date of purchase. Defect is defined
as a shortfall in the product to perform to specifications as
disclosed in product or trade literature, within industry allowable
tolerances as set forth in standard, national industry protocols.
1/

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extent that Emser contends that this language overrides any of
its other statements made to the Owners, Emser is incorrect.
California law on limiting warranties provides that
“[w]ords or conduct relevant to the creation of an express
warranty and words or conduct tending to negate or limit
warranty shall be construed wherever reasonable as consistent
with each other; but . . . negation or limitation is inoperative
to the extent that such construction is unreasonable.”
Com. Code § 2316(1).

Cal.

Because a disclaimer “is inconsistent

with” an express warranty, “words of disclaimer . . . give way
to words of warranty unless some clear agreement between the
parties dictates the contrary relationship.”

In re Nexus 6P

Prod. Liab. Litig., 293 F. Supp. 3d 888, 941 (N.D. Cal. 2018)
(internal citation and quotation omitted); see also Arroyo v.
TP-Link USA Corp., No. 14-CV-04999-EJD, 2015 WL 5698752, at *10
(N.D. Cal. Sept. 29, 2015); Hauter v. Zogarts, 14 Cal. 3d 104,

This one-year express warranty is the sole warranty extended and
replaces any statutory warranties to the maximum extent allowable
by law. Customer misuse including negligence, physical, or chemical
abuse is not covered by the warranty.
Installation defects or
installations that violate building codes are not covered by this
warranty.
All warranty claims must be reported immediately.
Failure to report any warranty claim within 30 days of defect
discovery will void this warranty. All products must be inspected
prior to installation. Visual defects or nonconformities apparent
prior to installation voids this warranty. Manufactured tile is
subject to variation due to an inherent variability in raw materials
and production processes. Ceramic tile with a rating of V3 or V4
may contain higher levels of variation.
All products should be
inspected prior to installation.
Emser Ex. U.

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120 Cal. Rptr. 681, 534 P.2d 377, 386 (1975) (explaining that
Cal. Com. Code § 2316 “seeks to protect a buyer from unexpected
and unbargained language of disclaimer by denying effect to such
language when inconsistent with language of express warranty,”
and that amendments to § 2316 have not altered the “spirit” of
the law as originally drafted:

“If the agreement creates an

express warranty, [w]ords disclaiming it are inoperative.”).
Insofar as Emser argues its disclaimer precludes
liability for breach of express warranty “that the subject
flooring tile could be safely used for its intended purposes,”
FAC ¶ 12, Emser’s argument fails.

The Court therefore finds

that Emser’s general disclaimer found in its Terms and
Conditions does not apply to the express warranty claim.
ii. Breach of Express Warranty
To state a claim for breach of express warranty under
California law, “a plaintiff must allege (1) the exact terms of
the warranty; (2) reasonable reliance thereon; and (3) a breach
of warranty, which proximately caused plaintiff’s injury.”

T&M

Solar & Air Conditioning, Inc. v. Lennox Intl’l Inc., 83 F.
Supp. 3d 855, 875 (N.D. Cal. 2015).

“Any description of the

goods which is made part of the basis of the bargain creates an
express warranty that the goods shall conform to the
description.”

Cal. Com. Code. § 2313(1)(b).

“Statements made

by a manufacturer through its advertising efforts can be
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construed as warranty statements.”

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Aaronson v. Vital Pharms.,

Inc., No. 09-CV-1333 W (CAB), 2010 WL 625337, at *6 (S.D. Cal.
Feb. 17, 2010).
Clearly, the Owners have failed to submit evidence of
a breach of Emser’s express warranty within the required time of
one year, or that the Owners filed a timely claim.

Accordingly,

the Court only briefly discusses the other arguments Emser makes
regarding the Owners’ assertion there was a breach of Emser’s
express warranty.

In the Owners’ First Amended Third-Party

Complaint, the Owners allege in a conclusory manner that Emser
“warranted and/or represented that the subject flooring tile
could be safely used for its intended purposes.”

FAC ¶ 12.

“To

allege facts identifying the exact terms of the warranty, a
plaintiff must provide ‘specifics’ about what the warranty
statement was, and how and when it was breached.”
Air Conditioning, 83 F. Supp. 3d at 875.

T&M Solar and

Yet the Owners’

allegation falls short of any clear representation, rising to a
warranty.

See MacNeil Auto. Prod., Ltd. v. Cannon Auto. Ltd.,

715 F. Supp. 2d 786, 795 (N.D. Ill. 2010) (finding that alleged
representations that floor mats would be “quality mat[s],”
“would meet . . . expectations of quality,” and “would be
suitable for their purposes” are not warranties).
Drawing all reasonable inferences in the Owners’ favor,
they have failed to carry their burden on summary judgment by
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presenting evidence that Emser made any express warranty that
the subject flooring tile could be safely used for its intended
purposes.

The Owners contend in their Opposition that “there

were representations made about the slip resistance of the
tiles, [and] there is a genuine dispute about what those
representations were . . . .”

Opp. at 19.

To overcome this

partial summary judgment motion, the Owners were obligated to
provide a greater factual basis for any alleged express
warranty.

The Owners have not identified the person who made

the alleged express warranty, nor the specific words of the
express warranty, nor how the alleged warranty became part of
the basis of the bargain.
For the foregoing reasons, the Court GRANTS Emser’s
Motion for Partial Summary Judgment as to the express warranty
claim.
b. Implied Warranty:

Fitness for a Particular Purpose

The Court next addresses the Owners’ claim for an
implied warranty of fitness for a particular purpose.

Emser

moves for partial summary judgment on this claim for several
reasons, but the Court need only reach the first:

that the

Owners’ claims are barred by a disclaimer of the implied
warranty of fitness for a particular purpose in the Terms and
Conditions.

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Unlike with an express warranty, the implied warranty
of fitness for a particular purpose generally may be disclaimed.
See Cal. Com. Code § 2316(2).

The Owners do not dispute that

they are bound by the Terms and Conditions, they instead contend
that the disclaimer is not conspicuous.

In order to

successfully disclaim a warranty, the disclaimer must be
conspicuous.

See Cooper v. Simpson Strong-Tie Co., Inc., 460 F.

Supp. 3d 894, 913 (N.D. Cal. 2020).

California law defines

“conspicuous” as covering “[a] heading . . . in contrasting
type, font, or color to the surrounding text of the same or
lesser size” and “[l]anguage in the body of a record or display
. . . in contrasting type, font, or color to the surrounding
text of the same size, or set off from surrounding text of the
same size by symbols or other marks that call attention to the
language.”

See Cal. Com. Code § 1201(10).
Under the heading “Warranty,” Emser’s Terms and

Conditions provide in clear language and bold and capitalized
formatting that Emser “disclaims any and all other warranties,
express or implied, including but not limited to, warranties of
merchantability or fitness for a particular purpose or use.”
Emser Ex. U.

This disclaimer is in all capital letters while

the surrounding text is in lower case font of the same size.
See id.

California courts have found very similar disclaimers

to have barred implied warranty claims.
24

See e.g., Minkler v.

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Apple, Inc., 65 F. Supp. 3d 810, 819 (N.D. Cal. 2014) (barring
an implied warranty claim based on Apple’s disclaimer of “ALL
STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY”); In re Google Phone Litig., No.
10-CV-01177-EJD, 2012 WL 3155571, at *8 (N.D. Cal. Aug. 2, 2012)
(barring an implied warranty claim based on Google’s disclaimer
of “ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, REGARDING ANY DEVICES, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY”).

In these circumstances, the

Court concludes that Emser’s disclaimer is conspicuous.
The Owners argue that the language on the invoices
themselves states only, “To view our full product offering, our
branch locations, and our Terms and Conditions of Sale or to
view or receive electronic copies of your invoices, please visit
www.emser.com.”

Opp. at 22.

Therefore, in the Owners’ view,

this multistep process to reach the text of the disclaimer is
not “obvious.”

Id.

But the case the Owners erroneously rely

on, Wilson v. Huuuge, Inc., 944 F.3d 1212, 1214 (9th Cir. 2019),
is readily distinguishable.
In Wilson, the court found that the gaming phone
application did “did not notify users that the app had terms and
conditions, let alone put them in a place the user would
necessarily see.”

Id. at 1220.

Here, of course, Emser directs

readers to its website, which displays its Terms and Conditions
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conspicuously.

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The Owners do not otherwise allege that they did

not see or understand the disclaimer.

Thus, this case is unlike

Wilson where the allegations established that the plaintiff did
not have a reasonable opportunity to view the disclaimer prior
to purchase.

Id.

The Court will therefore enforce Emser’s disclaimer
found in its Terms and Conditions and GRANTS Emser’s Motion for
Partial Summary Judgment on the implied warranty claim.
III.

Failure to Warn as to Third-Party Defendant (Count III)
The Court next turns to the Owners’ failure to warn

claim.

The Owners allege that Emser “placed the subject

flooring tile into the stream of commerce and/or sold it in a
defective and unreasonably dangerous condition, and which posed
an unreasonable risk of harm.

Notwithstanding such knowledge,

[Emser] failed to adequately warn users of the subject flooring
tile about its slipperiness, especially when wet, and the risks
associated with its use.”

FAC ¶ 16.

In response, Emser argues

that the Owners’ failure to warn claim fails because Emser’s
warning is adequate as a matter of law.

The Court disagrees.

Hawaii courts have explained that the duty to warn
against unusual hazards has long been recognized as a source of
tort liability.

See Kajiya v. Dep’t of Water Supply, 2 Haw.

App. 221, 225, 629 P.2d 635, 639 (Haw. Ct. App. 1981).

When a

person who is in control of “what he knows or should know is a
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dangerous agency, which creates a foreseeable peril to persons
or property that is not readily apparent to those endangered, to
the extent that it is reasonably possible,” that person owes a
duty to warn them of the potential danger.

Id. at 640.

In this jurisdiction, a manufacturer must provide
adequate instructions for safe use of the product and warnings
as to the dangers inherent in improper use of the product.
Acoba v. General Tire, Inc., 92 Haw. 1, 15, 986 P.2d 288, 302
(Haw. 1999).

A manufacturer has a duty to “give appropriate

warning of any known dangers which the user of its product would
not ordinarily discover.”

Id. at 305 (citation omitted).

So

“[w]hen a product warning has been provided by a manufacturer,
the adequacy of that warning is generally a question of fact for
the jury.”

Acoba, 986 P.2d at 302 (collecting cases).
In the Owners’ Opposition, they allege a post-sale

duty to warn on the part of the manufacturer after the
manufacturer discovers a defect.
have recognized such a duty.

Opp. at 15.

Hawaii courts

See Tabieros v. Clark Equip. Co.,

85 Haw. 336, 355-56, 944 P.2d 1279, 1298-99 (1997) (“If,
however, the manufacturer is not aware of the defect until after
manufacture or sale, it has a duty to warn upon learning of the
defect; if there exists a point-of-manufacture duty to warn, a
postmanufacture duty to warn necessarily continues upon learning
of the defect.”).
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“In rare instances, however, warnings may be found
adequate as a matter of law.”

Acoba, 986 P.2d at 302.

For

example, a warning may be deemed adequate as a matter of law
where it is “very clear, understandable and completely
unambiguous” and “forcefully [brings] home the intended
message.”

Temple v. Velcro USA, Inc., 148 Cal. App. 3d 1090,

1095, 196 Cal. Rptr. 531, 533 (Ct. App. 1983); see also Bryant
v. Tech. Research Co., 654 F.2d 1337, 1345-46 (9th Cir. 1981)
(“An important factor in evaluating the adequacy of a warning is
the clarity of the warning.”); see e.g., Acoba at 303
(“[Defendant’s] manual thus clearly and explicitly warned
[plaintiff] of the risk that ‘[a] build-up of rust and/or
corrosion can prevent the side/lock rings from properly seating
[and may] cause an explosive separation during inflation.’”).
Here, the Owners allege that Emser “failed to
adequately warn users of the subject flooring tile about its
slipperiness, especially when wet, and the risks associated with
its use.”

FAC ¶ 16.
Emser argues that it warned about precisely the risk

that the Owners are alleging, that is, that the tiles may be
slippery when wet and to take care when selecting the material
when it will be exposed to liquids.
cut sheet Emser provided states:

Mot. at 18.

Indeed, the

“Ceramic tile floors, like

other types of glazed floors, can become slippery when wet.
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Take extra care when selecting a floor product that will be
exposed to conditions such as liquids, grease, or oil.”
Ex. C.

Emser

But the cut sheet that contains the warning also

confusingly states the Bombay tile coefficient of friction as
greater than or equal to 0.6 both dry and wet.

At the hearing,

Emser’s counsel could not explain any reason for such a
statement.

It is questionable what impact such confusion had on

the Owners.
Emser also knew that the 0.6 coefficient of friction
(or whatever the actual coefficient of friction might be) was
determined by testing the average of three tiles, so some tiles
would have a higher coefficient of friction and some would have
lower.

See Emser Ex. 2.

Accordingly, Emser knew that some of

the tiles installed at Poipu would be below a 0.6 coefficient of
friction when wet; on the other hand, there’s no evidence that
Poipu was so aware.

Emser’s counsel also asserted that the

architect should have known that the 0.6 coefficient of friction
would have been determined as an average.

Yet Emser knew that

the Owners wanted a 0.6 coefficient of friction as testified by
Linda Hart.

See Def. Ex K (Deposition of Linda Hart) at 17:6-7.

There is an additional dispute here as to whether
Emser’s issuance of the Bombay Master Certificate as well as the
Revised Bombay Master Certificate both bearing a 0.55
coefficient of friction constitutes a sufficient warning.
29

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Owners’ architect reviewed both documents and requested and
received two changes.
Moreover, notwithstanding Emser’s representation as to
the subject tile’s coefficient of friction, Emser’s counsel at
the hearing admitted that the actual tile sent to Poipu was
never tested for its coefficient of friction.

There is also no

evidence that either party took any action after La Sonya Allen
slipped and fell outside of Building 7 and before Bennett
slipped and fell at Building 5 fifteen months later, other than
the Owners placing some warning signs and cones as testified by
the Bennetts in their depositions.

See Emser Ex. CC (Deposition

---

of Beverly Bennett) at 49:11-18; Emser Ex. DD (Deposition of
Michael Bennett) at 67:8-13.
Because there are material issues of fact, the Court
DENIES Emser’s Motion for Partial Summary Judgment with regard
to the failure to warn claim.
IV.

Negligent Misrepresentation (Count IV)
Finally, the Court turns to the Owners’ negligent

misrepresentation claim.

The Owners contend that Emser

negligently misrepresented “that the subject flooring tile was
safe and fit for its intended purposes, and that the flooring
had specific coefficient of friction specifications when dry
and/or wet.”

FAC ¶ 20.

The Court first addresses the

application of the economic loss rule, and then goes on to GRANT
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summary judgment only insofar as the Owners assert a claim based
on the value of damage to the product, that is, damage to the
tile itself, but otherwise DENIES the motion on the negligent
misrepresentation claim.
a. Application of the Economic Loss Rule
A claim involving negligence often involves facts that
are to be determined by a jury.

Here, Emser asserts that it is

entitled to partial summary judgment because the Owners’ direct
claim for negligent misrepresentation is barred by the economic
loss rule.

Reply at 7-8.

Under Hawaii law, the so-called “economic loss rule”
applies to bar recovery in product liability cases for pure
economic loss in actions stemming from injury only to the
product itself.

State by Bronster v. U.S. Steel Corp., 82 Haw.

32, 41, 919 P.2d 294, 303 (1996); see Haw. Rev. Stat. § 663-1.2;
SCD RMA, LLC v. Farsighted Enterprises, Inc., 591 F. Supp. 2d
1141, 1148 (D. Haw. 2008).

The economic loss rule thus absolves

manufacturers in commercial relationships from a duty “under
either a negligence or strict products-liability theory to
prevent a product from injuring itself.”

E. River S.S. Corp. v.

Transamerica Delaval, Inc., 476 U.S. 858, 871, 106 S. Ct. 2295,
2302, 90 L. Ed. 2d 865 (1986).

Such a rule “marks the

fundamental boundary between the law of contracts, which is
designed to enforce expectations created by agreement, and the
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law of torts, which is designed to protect citizens and their
property by imposing a duty of reasonable care on others.”

City

Express, Inc. v. Express Partners, 87 Haw. 466, 469, 959 P.2d
836, 839 (1998) (citations omitted).

Damage to a product itself

is most appropriately a warranty claim.

Keahole Point Fish LLC

v. Skretting Canada Inc., 971 F. Supp. 2d 1017, 1028 (D. Haw.
2013); U.S. Steel Corp., 919 P.2d at 302 (“Such damage means
simply that the product has not met the customer’s expectations,
or, in other words, that the customer has received ‘insufficient
product value.’”) (citation omitted).
The Hawaii Supreme Court has recognized exceptions to
the economic loss rule and found that it does not apply when a
defective product causes personal injury or damage to “other
property.”

Ass’n of Apartment Owners of Newtown Meadows ex rel.

its Bd. Of Directors v. Venture 15, Inc., 115 Haw. 232, 285, 167
P.3d 225, 278 (2007); Kawamata Farms, Inc. v. United Agric.
Prods., 86 Haw. 214, 254, 948 P.2d 1055, 1095 (1997).

A court

analyzing the applicability of the economic loss rule must
therefore analyze the object of the bargain between the parties
in order to determine what constitutes “the product” and what
constitutes “other property.”

Windward Aviation, Inc. v. Rolls-

Royce Corp., Civ No. 10-00542 ACK-BMK, 2011 WL 2670180, at *6
(D. Haw. July 6, 2011).

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Here, Emser has not established that the rule barring
tort claims for purely economic losses applies as to most of
their claims.

On the other hand, the Owners are somewhat

unclear as to what damages they are seeking from the negligent
misrepresentation claim.

At the very least, it is clear that

the Owners’ negligent misrepresentation claim is predicated on
the original personal injury claims asserted by Bennett, and
Bennett’s claims are not exclusively for economic loss.

See

Wada v. Aloha King, LLC, 154 F. Supp. 3d 981, 1004 (D. Haw.
2015).

The Owners do not appear to seek to recover from any

“other property,” that is, property other than the Bombay tiles.
The recovery sought by the Owners further stems from a claim
that Emser did not exercise reasonable care in communicating
information regarding its own materials.
919 P.2d at 303.

See U.S. Steel Corp.,

In citing to Shaffer v. Earl Thacker Co., 6

Haw. App. 188, 716 P.2d 163 (1986), the Hawaii Supreme Court
stated:
The duty imposed by section 552 is therefore to exercise
reasonable
care
or
competence
in
obtaining
or
communicating information for the guidance of others in
their business transactions.
This duty, however, is
distinct from the duty eliminated by the economic loss
rule. As noted by the court in East River, the economic
loss
rule
absolves
manufacturers
in
commercial
relationships from a duty “under either a negligence or
strict products-liability theory to prevent a product
from injuring itself.” 476 U.S. at 871, 106 S. Ct. at
2302. Utilization of the economic loss rule to dismiss
a claim for negligent misrepresentation, therefore,
would be incongruous.
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U.S. Steel Corp., 919 P.2d at 303.
Therefore, to the extent the Owners may be asserting a
claim based on the value of damage to the product, that is,
damage to the tile itself, the Court GRANTS Emser’s Motion for
Partial Summary Judgment because such a claim is barred by the
economic loss rule.

The Court next addresses any claims for

damages under negligent misrepresentation not barred by the
economic loss rule.
b. Negligent Misrepresentation Analysis
Negligent misrepresentation requires:

“(1) false

information be supplied as a result of the failure to exercise
reasonable care or competence in communicating the information;
(2) the person for whose benefit the information is supplied
suffered the loss; and (3) the recipient relies upon the
misrepresentation.”

Santiago v. Tanaka, 137 Haw. 137, 153-154,

366 P.3d 612, 628-629 (Haw. 2016) (citing Restatement (Second)
of Torts § 552).

Plaintiffs may recover the pecuniary losses

caused by their justifiable reliance on a negligent
misrepresentation.

Honolulu Disposal Serv., Inc. v. American

Ben. Plan Adm’rs, Inc., 433 F. Supp. 2d 1181, 1186 (D. Haw.
2006) (“Although the ‘justifiable reliance’ requirement appears
to incorporate an ordinary reasonableness standard . . . it also
requires the finder of fact to examine the circumstances
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involved in the particular case, rather than judging the
parties’ actions against a purely objective standard.”).

Each

element is addressed in turn. 3/
First, Emser asserts that it exercised sufficient care
in communicating the information regarding the subject tile.

It

argues that it had reasonable ground for believing the product
information was true.

As discussed above, Emser initially

provided to the Owners a cut sheet from Emser’s catalog, stating
that the coefficient of friction was equal to or greater than
0.60 wet.

See Emser Ex. C.

Emser then provided the Bombay

Master Certificate and the Revised Bombay Master Certificate,
which both stated a 0.55 wet coefficient of friction and were
both reviewed by the architect.
In providing both numbers, Emser depended on
laboratory test results.

Makovski Decl. ¶¶ 6, 7, 16.

But Emser

is unable to identify which precise laboratory generated the 0.6
coefficient of friction, which confusingly applied to both wet
and dry, the meaning of which Emser’s counsel could not explain.
On the other hand, the cut sheet warned that “[c]eramic tile
floors, like other types of glazed floors, can become slippery
when wet.

Take extra care when selecting a floor product that

will be exposed to conditions such as liquids, grease, or oil.”
Because the analysis of the two tort claims-failure to warn and
negligent misrepresentation-is similar, any facts stated in one is
incorporated by the other.
3/

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Emser Ex. C.
slipping.

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The cut sheet also displayed a figure of a person

See id.
Because only three of the Bombay tiles were tested as

an average, some tiles had a higher coefficient of friction of
0.6 and some lower.

See Emser Ex. 2.

Emser’s counsel asserted

the architect, as a professional, should have been aware of the
significance of such a practice.

But as discussed above,

notwithstanding Emser’s representations as to the tile
coefficient of friction, the coefficient of friction of the tile
sent to Poipu was never tested before shipment.

When the Bombay

tiles used at Poipu were tested in 2020 and 2021, the tests
revealed a coefficient of friction of an average of 0.48 and
under 0.49, respectively.

See Def. CSF ¶ 27.

The Owners further point out in their Opposition that
Emser received the updated testing information in 2011 showing a
coefficient of friction of less than 0.6, but Emser nevertheless
provided a cut sheet in September 2012 to Poipu stating a 0.6
coefficient of friction.

Opp. at 9; Def. CSF ¶ 29.

Second, the Court turns to the next element of
negligent misrepresentation and finds that clearly the Owners
were the person for whose benefit the information was supplied
and that it suffered the loss of receiving tile that included
tile with a lower coefficient of friction than the standard of

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0.6 and are now facing lawsuits from guests injured by slipping
on the tile as well as major corrective work.
Finally, Emser argues that the Owners cannot establish
justifiable reliance.

Mot. at 21.

The question of whether a

plaintiff’s reliance was justifiable is ordinarily a question
for the jury, but it may be decided at the summary judgment
stage if the facts support only one conclusion.

See Honolulu

Disposal, 433 F. Supp. 2d at 1186.
The Court again notes that while the “justifiable
reliance” requirement incorporates an ordinary reasonableness
standard, it also requires the finder of fact to examine the
circumstances involved in the particular case, rather than
judging the parties’ actions against a purely objective
standard.

Id. at 1191.
The Court finds that it is questionable whether the

Owners were aware that Emser’s standard practice was to
establish a coefficient of friction by testing only three tiles
and taking the average thereof, with the result that Emser’s
representation of the 0.6 coefficient of friction would include
some tiles with a coefficient of friction of 0.6 or higher, and
some tiles less than a 0.6 coefficient of friction.
The Owners claim they relied on the cut sheet
coefficient of friction because “the tile would not have even

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been submitted to the AOAO board for consideration if the wet
coefficient of friction was under .6.”

Opp. at 11.

As discussed supra, Emser supplied both the cut sheet
and the Revised Master Certificate by October 17, 2012.
22; Emser Ex. C.

Mot. at

The general contractor Layton did not order

the tiles that were installed at Building 5, where Bennett fell,
until September 2014.

Mot. at 22.

But the Owners had ordered

tile for Building 4 before receiving the certificates.
Johnson Decl. ¶¶ 29, 30.

See

Emser argues that the Owners could

have discovered the 0.55 number by looking at its own set of
documents, although those documents had been received after the
Owners had already ordered some tile at the beginning of the
Project (for Building 4).

See Honolulu Disposal, 433 F. Supp.

2d at 1193 (finding no reasonable reliance because the plaintiff
always had control over the records at issue); Balkind v.
Telluride Mountain Tile Co., 8 P.3d 581, 587 (Colo. App. 2000)
(“If the plaintiff has access to information that was equally
available to both parties and would have led to discovery of the
true facts, the plaintiff has no right to rely upon the
misrepresentation.”).

On the other hand, Emser could have

avoided its own misrepresentations if it had reviewed its own
records.
The Owners argue that the architect’s stamp on both
the Bombay Master Certificate as well as the Revised Bombay
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Master Certificate does not constitute an approval of the
information contained in the certificates.

Opp. at 13.

But the

architect’s stamp suggests to the Court that at the very least
he reviewed the information contained within the certificates.
In sum, the Court finds there are material issues of
fact regarding the Owners’ negligent misrepresentation claim and
therefore the Court DENIES Emser’s Motion for Partial Summary
Judgment on the negligent misrepresentation claim.

CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART
AND DENIES IN PART Emser’s Motion for Partial Summary Judgment,
ECF No. 95, as follows:
1.

Emser’s Motion for Partial Summary Judgment with regard
to the Owners’ breach of express and implied warranties
is GRANTED.

2.

Emser’s Motion for Partial Summary Judgment of the
Owners’ failure to warn claim is DENIED.

3.

To the extent that the Owners assert a claim under
negligent misrepresentation based on the value of damage
to the product, that is, to the tile itself, Emser’s
Motion for Partial Summary Judgment is GRANTED.

As to

any other claim under the negligent misrepresentation

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claim, Emser’s Motion for Partial Summary Judgment is
DENIED.

IT IS SO ORDERED.
DATED: Honolulu, Hawai`i, September 7, 2021.

________________________________
Alan C. Kay
Sr. United States District Judge

Bennett v. Poipu Resort Partners, et al., Civ. No. 18-00171 ACK-KJM, Order
Granting in Part and Denying in Part Third-Party Defendant and
Counterclaimant Emser Tile, LLC’s Motion for Partial Summary Judgment (ECF
No. 95).

40