Armour v. BCS

Filing 43

ORDER denying 41 motion for judgment as a matter of law; finding as moot 27 Motion to Dismiss for Failure to State a Claim; finding as moot 28 motion to strike ; granting 29 motion for summary judgment; denying 33 motion for summary judgment; denying 38 motion for summary judgmentOrder mailed to Plaintiff. Signed on 7/25/2018 by Chief District Judge Greg Kays. (Law Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SHEILA ARMOUR,

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Plaintiff,
v.
BCS,
Defendant.

No. 4:17-CV-00219-DGK

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT
This case arises out of pro se Plaintiff Shelia Armour’s injuries from using a security wand
she alleges was manufactured by Defendant BCS (“BCS”). Now before the Court is BCS’s motion
for summary judgment (Doc. 29) and Plaintiff’s motions for summary judgment (Docs. 33 & 38).1
As explained below, BCS’s motion for summary judgment is GRANTED and Plaintiff’s motions
for summary judgment are DENIED.
Undisputed Material Facts2
In January 2017, Plaintiff worked as a security guard in Kansas City, Missouri. Her duties
involved handling a security wand she alleges was manufactured by BCS. A security wand is a

Also pending before the Court is BCS’s motion to dismiss for failure to state a claim (Doc. 27). Because the Court
resolves this dispute on summary judgment, the Court denies as moot Defendant’s motion to dismiss. Additionally,
BCS has filed a motion to strike Plaintiff’s expert designations (Doc. 28) for failure to comply with the Court’s
scheduling Order and Fed. R. Civ. P. 26. That motion is also denied as moot. Plaintiff offers no evidence from these
witnesses and thus it is unnecessary to decide this motion in light of the Court’s ruling on summary judgment. Finally,
BCS’s motion for judgment as a matter of law (Doc. 41) is denied.
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Plaintiff did not respond to BCS’s motion, rather she filed her own motion for summary judgment. Liberally
construing her own motion for summary judgment as a response to BCS’s motion, Plaintiff does not properly
controvert BCS’s statement of facts. As such, unless the record fails to support BCS’s assertions, the Court adopts
the facts from BCS’s brief. Additionally, the Court excluded asserted facts that were immaterial to the resolution of
the pending motion, asserted facts that were not properly supported by admissible evidence, legal conclusions, and
argument presented as an assertion of fact.
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small, plastic stick used by security guards to conduct checkpoints. BCS describes the wand as
consisting of a computer chip and a 3-volt battery. Plaintiff alleges that one day while working,
she touched the exterior tip of a security wand and received an electric shock.
Plaintiff alleges she suffered burns immediately after she was shocked by the device.
Additionally, she alleges she now suffers from permanent medical conditions stemming from the
electric shock. To substantiate her injuries, Plaintiff provided images of her purporting to indicate
the burns she suffered from the electric shock. Also, she includes images of medical reports but
they do not provide her name, nor are they otherwise traceable to her or this incident.3
BCS offers an affidavit from the engineer and product designer of the security checkpoint
wand at issue in this case. This witness states that the exterior tip of the wand is incapable of
producing electric shock, and incapable of injuring a person by electric shock (Doc. 30-4 at 1).
Further, the witness states the product is safe for its intended use, is not defective, and neither
unreasonably dangerous, nor dangerous at all. Id. at 3.
Plaintiff sued BCS seeking $5,000,000.00 for her injuries on a theory that the BCS security
wand was defective.
Standard
Because Plaintiff is pro se, the Court is bound to liberally construe her filings in order to
do substantial justice. Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, a litigant’s pro se
status does not excuse her from compliance with the Federal Rules of Civil Procedure or Local
Rules. McNeil v. United States, 508 U.S. 106, 113 (1993).

On July 18, 2018, after Defendant’s motion for summary judgment was ripe, Plaintiff submitted additional images
of medical reports (Doc. 42). These reports display her name, date of visit, and provider’s name. The documents
submitted suggest that she suffers from mild joint problems.
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In reviewing a summary judgment motion, the Court is bound to resolve any doubt as to
the existence of any material fact against the moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986). The Court must scrutinize the evidence presented in the light most favorable
to the non-moving party and accord to it the benefit of every reasonable factual inference.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986). A moving party
is entitled to summary judgment on a claim only if there is a showing that “there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A party opposing a motion for summary
judgment “may not rest upon the mere allegations or denials of the . . . pleadings, but . . . must set
forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
Discussion
I.

BCS’s motion for summary judgment is GRANTED.

BCS moves for summary judgment arguing Plaintiff has not submitted any evidence that
BCS is liable for her injuries. After reviewing the record and all supporting exhibits, the Court
finds there are no disputes of material fact and Plaintiff’s claim fails as a matter of law.
Plaintiff’s complaint asserts the BCS security wand is defective. She states “I have reason
to believe BCS is not properly guarding the electricity inside the device.” (Doc. 7 at 3). In a later
filing she asserts “the device is not properly manufactured.” (Doc. 34 at 1). The Court construes
these two statements, along with all of Plaintiff’s other filings, that she is pursuing a products
liability claim against BCS.
Under Missouri law, a defendant is strictly liable for a products liability claim when:
(1) The defendant, wherever situated in the chain of commerce,
transferred a product in the course of his business; and
(2) The product was used in a manner reasonably anticipated; and

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(3) Either or both of the following:
(a) The product was then in a defective condition
unreasonably dangerous when put to a reasonably
anticipated use, and the plaintiff was damaged as a direct
result of such defective condition as existed when the
product was sold; or
(b) The product was then unreasonably dangerous when put
to a reasonably anticipated use without knowledge of its
characteristics, and the plaintiff was damaged as a direct
result of the product being sold without an adequate warning.
Mo. Rev. Stat. § 537.760.
Plaintiff opposes summary judgment because she argues she has provided evidence of her
injuries and that the security wand is the most logical explanation for those injuries. See (Doc. 33
at 1).
There are no facts in the record to that would create a triable issue of whether the security
wand was in a defective condition when it was sold, or that the security wand was unreasonably
dangerous and lacked adequate warnings. Rather, the undisputed evidence supports a finding that
the security wand was not in a defective condition, nor was it unreasonably dangerous.
Plaintiff has also failed to present admissible evidence of her injuries. Cummings v.
Roberts, 628 F.2d 1068, 1068 (8th Cir. 1980) (finding uncertified medical records should not be
considered by district courts); Rill v. Trautman, 950 F. Supp. 268, 269–70 (E.D. Mo. 1996) (“To
be admissible, documents must be authenticated by and attached to an affidavit that meets the
requirements of Federal Rule of Civil Procedure 56(e) and the affiant must be a person through
whom the exhibits could be admitted into evidence.”). Further, there is no admissible evidence
linking the security wand to Plaintiff’s injuries.

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Without any evidence supporting Plaintiff’s assertion that the product was defective and
injured her, her claim fails as a matter of law. See Rule 56(e) (a party opposing summary judgment
“may not rest upon the mere allegations or denials of the . . . pleadings, but . . . must set forth
specific facts showing that there is a genuine issue for trial.”). Summary judgment is GRANTED
for BCS.
II.

Plaintiff’s motions for summary judgment are DENIED.

In opposing BCS’s motion for summary judgment, Plaintiff filed her own motions for
summary judgment (Docs. 33 & 38). Plaintiff’s motions for summary judgment provide no basis
to grant summary judgment in her favor. She merely asks the Court to award her $5,000,000.00.
She does not provide any facts or evidence that would establish her claim as a matter of law. For
those reasons and for the reasons granting BCS’s motion, her motions are DENIED.
Conclusion
For the foregoing reasons, BCS’s motion for summary judgment (Doc. 29) is GRANTED
and Plaintiff’s motions for summary judgment (Docs. 33 & 38) are DENIED.
IT IS SO ORDERED.
Date: July 25, 2018

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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