Johnson v. Wal-Mart Stores East, Inc.

Filing 25

Memorandum of Opinion and Order For the reasons set forth herein, the Court grants in part and denies in part Defendant's 12 Motion to Dismiss. The motion is granted as to all counts except Count VIII, the Ohio Products Liability Act claim. Thus, all of Plaintiff's claims except Count VIII are dismissed with prejudice. Additionally, the claims of absent putative class members are dismissed without prejudice for all Counts, except Count VIII. The Court will schedule a telephonic Case Management Conference to complete the case management schedule. Judge Benita Y. Pearson on 2/28/2018. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SHELLEY JOHNSON,
Plaintiff,
v.
WAL-MART STORES EAST INC.,
Defendant.

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CASE NO. 4:17CV1894

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 12]

Pending before the Court is Defendant Wal-Mart Stores East Inc.’s motion to dismiss.
ECF No. 12. Plaintiff Shelley Johnson has responded. ECF No. 21. Defendant has replied.
ECF No. 22. For the reasons that follow, the Court grants Defendant’s Motion in part and denies
it in part.
I. Background
Plaintiff, the mother of minor child B.C., purchased a Mainstays patio set from the
Warren, Ohio Wal-Mart sometime in 2009. ECF No. 1 at PageID #: 4. This patio set included
chairs. Plaintiff alleges that, on or about September 3, 2009, one of the chairs collapsed while
B.C., Plaintiff’s then three-year old son, was sitting in the chair. Id. at PageID #: 5. The collapse
of the chair caused B.C.’s left middle finger to become stuck in the chair, tearing a tendon in the
finger. Id. B.C. underwent surgery to replace the damaged tendon. Id. Post-surgery, B.C.
completed physical therapy, but he has not regained normal use of the finger, and Plaintiff alleges
that the impairment is permanent. Id.

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Plaintiff has filed a putative Class Action Complaint. ECF No. 1. In her Complaint, she
posits eight counts: (1) violation of the Ohio Consumer Sales Practices Act, R.C. § 1345.01, et
seq.; (2) violations of state consumer protection statutes; (3) violations of the Uniform Deceptive
Trade Practices Act;1 (4) negligence; (5) breach of the implied warranty of merchantability; (6)
unjust enrichment; (7) negligence;2 and (8) violation of the Ohio Products Liability Act, R.C. §
2307.71, et seq. Plaintiff alleges all counts as both individual and class claims.
II. Standard of Review
To survive a Fed. R. Civ. P.12(b)(6) motion to dismiss, the plaintiff’s complaint must
allege enough facts to “raise a right to relief above the speculative level.” Ass’n of Cleveland
Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Fed. R. Civ. P. 8(a)(2) requires only that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” However, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). A complaint requires “further factual enhancement,” which “state[s] a claim to relief
that is plausible on its face.” Id. at 557, 570. A claim has facial plausibility when there is
enough factual content present to allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

1

Plaintiff has dismissed this claim. ECF No. 24.

2

Count VII replicates Count IV.

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When a claim lacks “plausibility in th[e] complaint,” that cause of action fails to state a claim
upon which relief can be granted. Twombly, U.S. 550 at 564.
The Court's inquiry is limited to the four corners of the complaint, along with any other
materials permitted under Fed. R. Civ. P. 12(b)(6) and 10(c). Jackson v. Maui Sands Resort,
Inc., No. 1:08-CV-2972, 2009 WL 7732251, at *3 (N.D. Ohio Sept. 8, 2009). “A copy of a
written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.” Fed.
R. Civ. P. 10(c). A court may also consider “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Solo v. United Parcel Serv.
Co., 819 F.3d 788, 794 (6th Cir. 2016) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007)).
III. Discussion
A. Count I: Ohio Consumer Sales Practices Act Claim
Defendant makes four arguments against Count I: (1) Plaintiff’s claim is time-barred; (2)
B.C. is not a consumer, and therefore, an action may not be maintained on his behalf; (3) Plaintiff
fails to allege Defendant acted with the requisite notice; and (4) Plaintiff cannot recover treble
damages in an Ohio Consumer Sales Practices Act class action. ECF No. 12 at PageID #: 10508.
i. Timeliness
Defendant contends that Plaintiff did not bring suit within the two-year statute of
limitations under the Ohio Consumer Sales Practices Act. Id. at PageID #: 105. In response,
Plaintiff argues that the violation in this action consists of Defendant’s failure to warn consumers
of the defects in the patio set and/or issue a recall after it became aware of the defect. ECF No.

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21 at PageID #: 160-61. Under this theory, Plaintiff argues, Defendant’s continued sale of patio
sets like the one at issue creates a continuing tort, negating Defendant’s statute of limitations
argument. Id. at 161-62. In reply, Defendant argues that Plaintiff’s complaint focuses on the sale
of the at-issue patio set and that Plaintiff ignores the fact that Defendant issued a recall of the
patio set in 2014. ECF No. 22 at PageID #: 174.
R.C. § 1345.10(C) establishes a two-year statute of limitation that begins to run “after the
occurrence of the violation which is the subject of the suit.” Even accepting Plaintiff’s theory
that the statute began to run at the time Defendant should have become aware of a defect,
Plaintiff’s action is untimely. In her complaint, Plaintiff references a 2014 product recall of a
Mainstays table and chair set. See ECF No. 1 at PageID #: 2. Thus, under Plaintiff’s logic, her
claim, which came in 2017—more than two years after the recall—comes too late. Regardless,
the sale of the table stands as the time at which the statute began to run, and the sale occurred
back in 2009, well before even the 2014 recall. See In re Whirlpool Corp. Front-Loading
Washer Products Liability Litigation, 45 F.Supp.3d 706, 710-11 (N.D.Ohio 2014) (Boyko, J.)
(dismissing Consumer Sales Practice claims of two plaintiffs who bought purportedly defective
front-loading washing machines more than two years prior to filing of complaint).3
The action is not untimely as to B.C., however, because of his status as a minor.
Although R.C. § 1345.10(C) does not contain a savings provision for minors, it is likely that the
Ohio Supreme Court would find that the statute of limitations would not accrue until two years

3

Plaintiff references the discovery rule as a potential source of salvation for the
Consumer Sales Practices Act claim, but ordinarily the discovery rule does not apply to
such claims. See Savett v. Whirlpool Corp., No. 12-CV-310, 2012 WL 3780451, at *3
(N.D.Ohio Aug. 31, 2012) (Gaughan, J.) (citation omitted).

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after B.C. reached the age of majority. See Adamsky v. Buckeye Local School District, 73 Ohio
St.3d 360, 1995-Ohio-298, 653 N.E.2d 212 (Ohio 1995) (holding that statute’s failure to include
a savings provision in a statute violated Ohio Constitution).
ii. Definition of Consumer
Defendant argues that B.C. does not meet the Ohio Consumer Sales Practices Act’s
definition of “consumer,” because the complaint does not allege that B.C. purchased the patio set
or engaged in a consumer transaction with Defendant. ECF No. 12 at PageID #: 105-06.
Plaintiff counters that the Ohio Consumer Sales Practices Act only requires that the act or
practice at issue occur in connection with a consumer transaction. ECF No. 21 at PageID #: 16263. Defendant contends that the Act does not provide for recoveries of personal injuries, and
therefore, B.C. has no claim under the Ohio Consumer Sales Practices Act. ECF No. 22 at
PageID #: 174-75.
A minor child not engaged in a consumer transaction does not qualify as a consumer
under the Ohio Consumer Sales Practices Act, and therefore, cannot recover under the Act. See
Hamilton v. Ball, 7 N.E.3d 1241, 1260 (Ohio Ct. App. 2014) (holding that although minor son
was an intended beneficiary of car purchase, he was not engaged in consumer transaction with
supplier, and thus, Ohio Consumer Sales Practices Act claim failed). Plaintiff’s complaint fails
to allege facts showing that B.C. was engaged in a consumer transaction. B.C.’s post-transaction
use of the patio set bears no weight in the determination of whether he qualifies as a consumer.
Hence, Plaintiff’s claim fails as to B.C.

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iii. Notice
Defendant next argues that Plaintiff’s failure to allege that Defendant has received notice
that its conduct was deceptive or unconscionable shatters Plaintiff’s class action claim. ECF No.
12 at PageID #: 106. Plaintiff counters that Rock v. L.I.P., No. 86 CA 87, 1987 WL 15356 (Ohio
Ct. App. Jul. 30, 1987) provides notice that “a chair which immediately falls apart when sat upon
is unreasonably dangerous wh[en] it collapsed without warning and when the chair was being
used in the manner in which it was intended to be used.” ECF No. 21 at PageID #: 164.
Defendant argues that Rock lacks a pronouncement that such conduct is deceptive or
unreasonable and that Plaintiff ignores the fact that she failed to plead that Defendant was on
notice. ECF No. 22 at PageID #: 173.
In support of its position that Rock provides proper notice, Plaintiff references Marrone v.
Phillip Morris USA, Inc., 110 Ohio St.3d 5, 2006-Ohio-2869, 850 N.E.2d 31 (Ohio 2006), but
she does not properly apply Marrone to this case. Indeed, Plaintiff’s position fails to appreciate
Marrone’s discussion that prior court decisions must find a practice to be deceptive and
unconscionable. Marrone, 110 Ohio St.3d at 8-9. Rock makes no such finding.
Moreover, in order for a court’s decision to put a defendant on notice, the decision must
appear in the Ohio Attorney General’s Public Inspection File. R.C. § 1345.05(B); see also
Gascho v. Global Fitness Holdings, LLC, 918 F.Supp.2d 708, 715 (S.D.Ohio 2013) (“Placement
on the PIF [Public Inspection File] is a condition precedent to the existence of the necessary
notice.”). The Court has reviewed the Public Inspection File,4 and the file does not contain Rock.

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2018).

Available at http://opif.ohioattorneygeneral.gov/Search/Pifs (last visited Feb. 28,

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Aside from the issue of whether Rock was similar enough to provide notice, its absence from the
file precludes class action relief under the Ohio Consumer Sales Practices Act. See St. Clair v.
Kroger Co., 581 F.Supp.2d 896, 901 (N.D.Ohio 2008) (Carr, J.) (dismissing class action
allegations due to lack of prior notice).
iv. Treble Damages
In its final argument as to Count I, Defendant’ argues that R.C. § 1345.09(B) expressly
precludes the recovery of treble damages in a class action. ECF No. 12 at PageID #: 107.
Plaintiff does not respond to this argument, but that is of no moment, because Defendant’s first
three arguments are well-taken. Accordingly, the Court declines to address this issue.
B. Counts IV-VII: Common Law Claims
Plaintiff brings common law claims of negligence, unjust enrichment, and breach of the
implied warranty of merchantability. ECF No. 1 at PageID #: 19-23. Defendant seeks dismissal
of the claims on the ground that they are abrogated under the Ohio Products Liability Act. ECF
No. 12 at PageID #: 110-13.
Although R.C. § 2307.71(A)(13) abrogates common law product liability claims, there is
an exception: consumers not in privity with the manufacturer seeking economic damages
suffered due to damages to the product in question may bring common law claims. Meta v.
Target Corp., 74 F.Supp.3d 858, 861 (N.D.Ohio 2015) (Nugent, J.). Ohio law defines
“economic loss” as “direct, incidental, or consequential loss, including, but not limited to,
damage to the product in question, and nonphysical damage to property other than that product.”
R.C. § 2307.71(A)(2). In addition, the definition explicitly excludes “harm.” Id.

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Only one of Plaintiff’s claims allege economic loss related to the patio set. In Count VI,
the unjust enrichment claim, Plaintiff alleges “Plaintiff and members of the proposed class ... did
not receive the goods for which they paid.” ECF No. 1 at PageID #: 22. Counts IV, V, and VII
make no allegations regarding economic damages. Therefore, Counts IV, V, and VII are
precluded under R.C. § 2307.71(A)(13), but Count VI is not.5
Even so, Count VI, Plaintiff’s unjust enrichment claim, also fails, because Plaintiff’s
complaint fails to allege that B.C. provided any benefit to Defendant. Plaintiff’s complaint
alleges that she, not B.C., purchased the patio set. ECF No. 1 at PageID #: 4. Therefore,
Plaintiff’s claim cannot survive. See Poston on behalf of Poston v. Shelby-Love, 2017-Ohio6980, —N.E.3d—, 2017, ¶ 21 (Ohio Ct. App. 2017) (holding that son of testator could not
maintain unjust enrichment claim against beneficiary, because there was no evidence that son
ever conferred a benefit upon beneficiary).6
C. Count VIII: Ohio Products Liability Act Claim
As to the final count in Plaintiff’s complaint, Defendant argues that Plaintiff has failed to
make the allegations necessary to state a claim under the Ohio Products Liability Act. ECF No.
12 at PageID #: 113-14. Specifically, Defendant asserts that Plaintiff’s failure to allege the
existence of a feasible alternative design dooms Plaintiff’s claim. Id. In response, Plaintiff

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Plaintiff may argue that she can amend Counts IV, V, and VII to allege damages
to personal property, but amendment would prove futile, because those are claims that
belong to Plaintiff, not B.C. Were Plaintiff to bring those claims herself, they would be
untimely, as the damage occurred in 2009. See R.C. § 2305.10(A) (prescribing two-year
statute of limitations for actions involving injury to personal property).
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Much like Counts IV, V, and VII amendment would prove futile, as Plaintiff’s
claim would be untimely.

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contends that she need not make such an allegation, because the issue of alternative design is a
fact issue that requires discovery. ECF No. 21 at PageID #: 169. Defendant counters by stating
that its argument focuses on pleading, not proof. ECF No. 22 at PageID #: 177.
McGrath v. GMC, 26 F.App’x 506 (6th Cir. 2002), the case serving as the lynchpin of
Defendant’s argument, was a summary judgment case, not a motion to dismiss case. Thus,
McGrath does not address pleading requirements. The Sixth Circuit did not hold that a plaintiff
must plead an alternative design; it held that Plaintiff must prove an alternative design. Id. at
510. Defendant fails to cite to a case holding that plaintiff must plead an alternative design in a
products liability action. Moreover, Oblak v. Integra Lifesciences Corp., No. 16-CV-1832, 2017
WL 1831098, at *2 (N.D.Ohio May 4, 2017) (Nugent, J.), a case upon which Plaintiff relies, did
not hold that a plaintiff must plead an alternative design. Rather, it held that “[m]anufacturing
and design defect claims require allegations that the defendant manufactured the product; that the
product was used by the plaintiff, that the product failed while being used by the plaintiff; and,
that the portion of the product that failed could be identified and is so identified in the
complaint.” Id. (collecting cases). Plaintiff’s complaint contains allegations sufficient to satisfy
this standard. Consequently, this claim survives.
IV. Conclusion
For the foregoing reasons, the Court grants in part and denies in part Defendant’s motion
to dismiss. The motion is granted as to all counts except Count VIII, the Ohio Products Liability
Act claim. Thus, all of Plaintiff’s claims except Count VIII are dismissed with prejudice.
Additionally, the claims of absent putative class members are dismissed without prejudice for all

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Counts, except Count VIII. The Court will schedule a telephonic case management conference to
complete the case management schedule.

IT IS SO ORDERED.

February 28, 2018
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge