Garfield v. WalMart Stores, Inc. et al
Filing
42
Judge Richard G. Stearns: ORDER entered granting in part and denying in part 29 Motion for Summary Judgment (Zierk, Marsha)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-12810-RGS
DAVID GARFIELD
v.
GORILLA, INC. and WAL-MART STORES, INC.
MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
July 1, 2015
STEARNS, D.J.
Plaintiff David Garfield brought this diversity action against a tree
stand manufacturer, Gorilla, Inc., and its seller, Wal-Mart Stores, Inc., (WalMart).
Against Wal-Mart, Garfield asserts various breach of warranty
claims: (1) failure to warn (Count VI); (2) breach of the implied warranty of
merchantability (Count IV); and (3) breach of the warranty of fitness for a
particular purpose (Count V). 1 Wal-Mart now moves for summary judgment
on all three Counts.
Garfield asserts the same claims against Gorilla in Counts I, II, and
III. Gorilla has not moved for summary judgment.
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BACKGROUND
In the light most favorable to Garfield as the nonmoving party, the
material facts are as follows. David Grove, a friend of Garfield, purchased
the Gorilla deer hunting tree stand from a Wal-Mart store in Massachusetts.2
Pl.’s Opp’n Mem. at 2. The tree stand included a platform, cables, and a full
body harness. 3 Def.’s Mem. at 3-4. The tree stand also came with written
and video safety instructions. Def.’s Exs. 3, 4. The written instructions
explicitly stated in capital letters that a user “must wear a lineman’s style
body safety harness . . . [and] always remain harnessed to the tree from the
moment you leave the ground until you return to the ground.” Def.’s Ex. 3.
These warnings were repeated multiple times on the written instructions as
well as on the two instructional videos. Id.; Lorne Smith Aff. ¶¶ 7-9. One
video specifically stated that “[u]sing your fall arrest device from the moment
you leave the ground until the moment you return to the ground is the single
most important action you can take to prevent a treestand accident that
could result in injury or death.” Id. ¶8. The written instructions also warned
A tree stand is an elevated stand used by deer hunters to conceal
themselves above ground level. Pl.’s Opp’n Mem. at 2.
2
The six-year-old Gorilla tree stand was manufactured in 2004. Def.’s
Mem. at 6.
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the user to inspect the tree stand before use, to never use it if damage was
observed, and to never keep the stand installed in a tree for more than two
consecutive weeks. Def.’s Ex. 3. Gorilla also warned users to replace the
cables every three years. Def.’s Ex. 5. Garfield was familiar with and
understood these instructions. Pl.’s Ex. C at 107.
On September 22, 2010, while hunting deer, Garfield used a ladder to
install the stand in a tree. Pl.’s Opp’n Mem. at 2. When he stepped from the
ladder onto the stand, the cables suspending the platform of the stand broke.
Pl.’s Opp’n Mem. at 3. The two cables were made of braided metal wire that
had been galvanized to resist corrosion. Def.’s Mem. at 3. As he was not
wearing a safety harness, Garfield fell approximately twenty feet after the
platform gave way. As a result of the fall, he suffered a severe fracture in his
left femur. Wilson Dobson, Garfield’s proffered expert, has opined that the
tree stand was defectively designed because of the susceptibility of the cables
to premature corrosion. Pl.’s Ex. A. 4
DISCUSSION
Summary judgment is appropriate when, based upon the pleadings,
affidavits, and depositions, “there is no genuine issue as to any material fact
Dobson is a Professional Engineer and a Mechanical and Materials
Engineering Consultant. Pl.’s Opp’n Mem. at 3.
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and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “To succeed, the moving party must show that there is an absence
of evidence to support the nonmoving party’s position.” Rogers v. Fair, 902
F.2d 140, 143 (1st Cir. 1990). Although all reasonable inferences are drawn
in the nonmovant’s favor, the court cannot “‘draw unreasonable inferences
or credit bald assertions, empty conclusions, rank conjecture, or vitriolic
invective.’” Pina v. Children’s Place, 740 F.3d 785, 795 (1st Cir. 2014),
quoting Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.
2007). “The mere existence of a scintilla of evidence is insufficient to defeat
a properly supported motion for summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). Consequently, “a party opposing
summary judgment must present definite, competent evidence to rebut the
motion.” Torres v. E.I. Dupont de Nemours & Co., 219 F.3d 13, 18 (1st Cir.
2000) (internal quotations and citations omitted).
Breach of Implied Warranty of Merchantability
A seller breaches its warranty obligations when a product that is
defective and “unreasonably dangerous” for the “ordinary purposes” for
which it is intended causes injury. Haglund v. Philip Morris, Inc., 446 Mass.
741, 746 (2006). Under Mass. Gen. Laws ch. 106, § 2-314, a plaintiff bears
the burden of proving “a defect in the product or an unreasonably dangerous
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condition which existed at the time the product left the [manufacturer’s]
control.” Enrich v. Windmere Corp., 416 Mass. 83, 89 (1993), citing Colter
v. Barber-Greene Co., 403 Mass. 50, 62 (1988).
“A product may be
unreasonably dangerous because of a defect in design. . . . Alternatively, a
product may be considered to be unreasonably dangerous because of the
absence of an adequate warning, sufficient to alert those who may be
sensitive to the product and to allow users to balance the risk of harm against
the product’s social utility.” Com. v. Johnson Insulation, 425 Mass. 650, 661
(1997); see Haglund, 446 Mass. at 747 (“Warranty liability may be premised
either on the failure to warn . . . or . . . on defective design.”).
Defective Design
In evaluating the adequacy of a product’s design, the fact-finder is to
consider “‘the gravity of the danger posed by the challenged design, the
likelihood that such danger would occur, the mechanical feasibility of a safer
alternative design, the financial cost of an improved design, and the adverse
consequences to the product and to the consumer that would result from an
alternative design.’” Back v. Wickes Corp., 375 Mass. 633, 642 (1978),
quoting Barker v. Lull Eng’g Co., 20 Cal. 3d 413, 431 (1978). An “essential
element of . . . a design flaw claim is that there be a safer alternative design.”
Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 26 (1st Cir. 2004). “[T]here
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is a case for the jury if the plaintiff can show an available design modification
which would reduce the risk without undue cost or interference with the
performance of the machinery.” Uloth v. City Tank Corp., 376 Mass. 874,
881 (1978).
In this case, Garfield contends that the tree stand cables were
defectively designed and unreasonably dangerous because of their
susceptibility to weakening from corrosion over time. 5 In his report, Dobson
opined that “the primary cause of [the tree stand’s] failure was corrosion.” 6
Pl.’s Ex. A at 2. He further noted that the cables “consist of an alloy subject
to corrosion when exposed to an outdoor environment and weather, and
failure can be expected given sufficient time.” Id. Wal-Mart responds by
arguing that, as Dobson conceded in his deposition, the cables were
galvanized to prevent corrosion, a naturally occurring phenomenon caused
by the exposure of metal to the environment. Pl.’s Ex. B at 35, 40. Dobson,
however, further opined that while the cables were treated to prevent
corrosion, without similar treatment of the other components of the stand,
Garfield has not opposed Wal-Mart’s motion for summary judgment
on the manufacturing defect claim. Garfield therefore will be held to waive
this claim.
5
Garfield has proffered Dobson as his trial expert. See Haughton v.
Hill Labs., Inc., 2007 WL 2484889, at *3 (D. Mass. Aug.30, 2007) (“[I]n a
products liability case of any sophistication, a plaintiff’s failure to support
her claims of a design defect with expert testimony is almost always fatal.”).
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the stand would “have a much shorter life.” Id. at 40-41. Dobson states this
is so because coating the steel cable wires with zinc ensures that the coating
will corrode before the steel. Id. at 40. But if only the cables are galvanized,
“you’ve got a large area of steel, [and a] very small amount of galvanizing . . .
[so] [t]he galvanizing is going to go away very quickly, and you’re down to
bare steel, and it starts to corrode.” Id. Wal-Mart’s contention that Dobson’s
theory is “wholly speculative,” Def.’s Mem. at 14, is ultimately a question of
fact to be resolved by the jury. See Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 596 (1993) (“Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky, but admissible
evidence.”).
Garfield also relies on Dobson’s opinion in offering an alternative
feasible design for the tree stand cables. Dobson states that the cables could
have been made with stainless steel (rather than carbon steel), which is
“more corrosion resistant,” and would have had the effect of increasing the
cables’ lifespan “at minimal additional cost.” Pl.’s Ex. A at 2. Dobson noted
in this regard that, if the steel was bought at retail (as opposed to wholesale)
price, the cost difference between stainless and carbon would amount to
roughly no more than an additional $1.60 per tree stand. Pl.’s Ex. B at 43.
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Wal-Mart responds that Dobson’s alternate design theory is speculative and
therefore unreliable because he never tested it in practice. Def.’s Mem. at 1617; Pl.’s Ex. B at 48. Wal-Mart relies on Carlucci v. CNH Am. LLC, 2012 WL
4094347 (D. Mass. Sept. 14, 2012), for the proposition that “expert
speculation of untested alternative designs is insufficient to demonstrate the
feasible alternative design requirement.” Def.’s Mem. at 16. However, the
court in Carlucci recognized that no “binding precedent . . . suggests [that]
alternative design testing is mandated in Massachusetts design defect cases.”
2012 WL 4094347, at *6.
The court has already ruled on Dobson’s
qualifications as an expert and has held that any disagreement over the
feasibility of Dobson’s alternative design “[is] for the jury, and not the court.”
Order denying Motion in Limine, 6/23/15, Dkt. #38 at 5.
Wal-Mart next argues that Garfield has failed to meet his burden of
showing causation. Wal-Mart claims that Garfield was the sole proximate
cause of his injury because, had he been wearing a body safety harness
tethered to the tree as instructed, his fall would have been avoided. Garfield
conceded in his deposition that he was aware of the safety instructions and
videos and understood the importance of wearing a harness when hunting
from an elevated tree stand. Pl.’s Ex. C at 101, 107. He contends, however,
that the collapse of the platform was the precipitating cause of the accident
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and his injuries. Ultimately, causation, save in rare circumstances (of which
this is not one), is a question of fact for the jury. See Zezuski v. Jenny Mfg.
Co., 363 Mass. 324, 328 (1973); see also Santiago v. Sherwin Williams Co.,
3 F.3d 546, 552 (1st Cir. 1993) (“Where there is no evidence from which the
factfinder, without speculating, can find causation, however, the case is
appropriately kept from the jury.”). 7
Wal-Mart finally contends that Garfield caused his own injury by
failing to heed the warnings to inspect the cables before using the tree stand.
In response, Garfield points to Dobson’s report, in which he concluded that
Wal-Mart also appears to rely on a theory of contributory negligence
derived from Mass. Gen. Laws ch. 231, § 85, to rebut Garfield’s breach of
warranty claim. A negligence-based claim, however, differs from a tortbased claim for breach of warranty. The first focuses on the conduct of the
designer or manufacturer; consequently compliance with pertinent industry
standards is evidence of lack of negligence; breach of warranty, on the other
hand, is found on strict liability principles and focuses on whether the
product is defective and unreasonably dangerous and not on the conduct of
the manufacturer. Touch v. Master Unit Die Prods., Inc., 43 F.3d 754, 757
(1st Cir. 1995). See also Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 15
(1st Cir. 2001) (“Actions under Massachusetts law for breach of the implied
warranty of merchantability are the functional equivalent of strict liability in
other jurisdictions.”). Garfield would only be prevented from recovering
here if, “after discovering the product’s defect and being made aware of its
danger, he nevertheless proceeded unreasonably to make use of the product
and was injured by it.” Correia v. Firestone Tire & Rubber Co., 388 Mass.
342, 357 (1983). Wal-Mart on the present state of the evidence would be
entitled to a jury instruction on this issue at trial. It is not, however, fodder
for a summary judgment motion in light of Garfield’s testimony that he did
not know that the cables were corroded at the time of the accident. Pl.’s Ex.
C at 111.
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the “hazard created by corroding cables [was] not open and obvious,” and
that an average user would not have noticed the corroded strands even on a
close inspection. Pl.’s Ex. A at 3. Wal-Mart also argues that Garfield failed
to heed the warning to replace the cables every three years, and to wear a
harness when leaving the ground. Def.’s Mem. at 19. These are fair issues
for Wal-Mart to raise at trial, but the question of whether and to what extent
these alleged misuses contributed to Garfield’s injuries is to be resolved by
the jury.
Failure to Warn
Garfield also contends that Wal-Mart was negligent for a failure to
warn. “A manufacturer has a duty to warn expected users of its product of
latent dangers in its normal and intended use.” Carey v. Lynn Ladder &
Scaffolding Co., Inc., 427 Mass. 1003, 1003 (1998). See also Mitchell v. Sky
Climber, Inc., 396 Mass. 629, 631 (1986); H.P. Hood & Sons, Inc. v. Ford
Motor Co., 370 Mass. 69, 75 (1976); Welch v. Keene Corp., 31 Mass. App. Ct.
157, 163 (1991). A product may also be deemed defective by reason of an
imperfect warning if an omitted or inadequate notice or instruction would
have reduced or avoided the foreseeable risk of harm. See Restatement
(Third) of Torts: Products Liability § 2(c) (1998). There is no duty to warn a
plaintiff who is fully aware of the risks posed by the product. Morrell v.
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Precise Eng’g, Inc., 36 Mass. App. Ct. 935, 936 (1994); see also Garcia v.
Kusan, Inc., 39 Mass. App. Ct. 322, 329 n. 7 (1995) (“Where danger is
obvious, [a] manufacturer need not warn.”).
In this case, Wal-Mart has offered undisputed evidence of the explicit
tree stand warnings, including instructions underscoring the need for a user
to wear a harness when elevating above ground and to replace the tree
stand’s cables every three years. Def.’s Exs. 3-5. In his deposition, Garfield
admitted that he understood these warnings and instructions, and yet he
failed to wear a harness when installing the tree stand or to replace the aging
cables. Pl.’s Ex. C at 107. In light of these undisputed facts, it is evident that
a more fulsome warning would have done nothing to avert Garfield’s injury.
See Cottam v. CVS Pharm., 436 Mass. 316, 327 (2002) (duty on user to “read
and heed”). When an existing warning “clearly call[s] attention to the
dangers to be avoided” and “there [is] no evidence that an additional or
different warning would have so alerted the plaintiff [so] that the accident
would not have occurred,” no reasonable jury could find for a plaintiff on a
failure-to-warn theory. Bell v. Wysong & Miles Co., 26 Mass. App. Ct. 1011,
1013 (1988) (reversing the trial court and dismissing a failure to warn claim
on this basis); see Plante v. Hobart Corp., 771 F.2d 617, 621 (1st Cir. 1985)
(affirming a directed verdict for a manufacturer where the court could “not
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see how one can reasonably say that defendants were negligent in failing to
furnish even more warnings about the dangers” at issue); see also Bavuso v.
Caterpillar Indus., Inc., 408 Mass. 694, 701-702 (1990) (reversing a jury
verdict and the district court’s entry of judgment in favor of the plaintiff
because “a warning beyond the warnings given could not have made the
danger any more obvious”). While the adequacy of warnings is “almost
always an issue to be resolved by a jury,” MacDonald v. Ortho Pharm. Corp.,
394 Mass. 131, 140 (1985), in the undisputed circumstances of this case, no
reasonable juror could find for Garfield on a theory of a failure to warn.
Breach of Implied Warranty of Fitness
The warranty of fitness for a particular purpose is similar to the
warranty of merchantability, but applies only when the buyer envisages a
specific use for the product “which is peculiar to the nature of his business.”
Mass Gen. Laws ch. 106, § 2-315 cmt. 2; see Fernandes v. Union Bookbinding
Co., 400 Mass. 27, 35-36 (1987).
Garfield’s assertion that Wal-Mart
breached its implied warranty of fitness for a particular purpose fails as a
matter of law. See Laspesa v. Arrow Int’l, Inc., 2009 WL 5217030, at *4 (D.
Mass. Dec. 23, 2009) (“When the buyer plans to use the product for its
ordinary purpose, the only implied warranty is the warranty of
merchantability”). Since it is undisputed that a tree stand is used to hunt
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and Garfield used the tree stand for the very purpose for which it was
intended, he cannot claim a breach of the implied warranty of fitness. See
Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 821 (1982)
(no breach under § 2-315 where a buyer used the swimming pool for no
purpose other than to swim).
ORDER
For the foregoing reasons, Wal-Mart’s motion for summary judgment
on Count IV (breach of warranty) is DENIED.
Wal-Mart’s motion for
summary judgment on Counts V and VI (failure to warn and fitness for
particular purpose) is ALLOWED. The Clerk may now set the case for trial.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
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