Martin et al v. Interstate Battery System of America, Inc. et al
Filing
188
OPINION AND ORDER by Judge John E Dowdell ; granting in part and denying in part 122 Motion for Summary Judgment (Re: 32 Amended Complaint, ) (SAS, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
GEORGE MARTIN and
JANET MARTIN, Husband and Wife
Plaintiffs,
v.
INTERSTATE BATTERY SYSTEM
OF AMERICA, INC., a Texas Corporation;
JOHNSON CONTROLS BATTERY
GROUP, INC., a Wisconsin Corporation;
INTERSTATE ALL BATTERY
CENTERS, INC., a Texas Corporation;
DISTRIBUTOR OPERATIONS, INC.,
A Texas Corporation,
Defendants.
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Case No. 12-CV-184-JED-FHM
OPINION AND ORDER
Before the Court is defendants’ Corrected Motion for Summary Judgment and
Memorandum of Law in Support (the “Motion”) (Doc. 122), which plaintiffs have opposed
(Doc. 127). For the reasons below, the Court finds that defendants’ Motion should be granted
in part and denied in part.
BACKGROUND
Plaintiffs George and Janet Martin filed this action against the following defendants:
Interstate Battery System of America, Inc., Johnson Controls Battery Group, Inc., Interstate All
Battery Centers, Inc., and Distributor Operations, Inc. Plaintiffs’ lawsuit seeks recovery for
injuries Mr. Martin alleges he sustained to his eyes and face when defendants’ battery, which he
used to power his fishing boat, exploded while he was fishing on Fort Gibson Lake in Wagoner
County, Oklahoma on October 2, 2011.
Plaintiffs’ Amended Complaint asserts the following
seven (7) causes of action: (1) strict liability based on failure to warn, manufacturing defect, and
design defect; (2) negligent failure to warn; (3) negligent design; (4) negligent manufacturing;
(5) breach of express warranty; (6) breach of implied warranties of merchantability and fitness
for a particular purpose; and (7) loss of consortium. (See Doc. 32).
The following facts are undisputed.
Mr. Martin purchased defendants’ battery
(hereinafter the “subject battery”) in April 2010 to be used in conjunction with a motor on his
mini bass boat. The subject battery is a lead acid battery. Lead acid batteries generate electrical
current through chemical reactions, which occur between the positive and negative plates and the
electrolyte. Different chemical reactions occur when the battery is being used and when it is
being charged. These reactions cause the battery to experience changes. One such change that
occurs as part of the normal use and charging cycles of the battery is positive plate growth.
Another process that occurs is electrolysis—the breakdown of water in the electrolyte. The
parties do not dispute that the subject battery exploded because it was overcharged. When a lead
acid battery is overcharged, it incurs excessive plate growth and the electrolyte level becomes
severely depleted.
Mr. Martin used a Century Model 87210 charger to charge the subject battery. This
charger is an “unregulated charger,” which is a standard charger model that “continues to deliver
amperage even after the battery has reached full charge.” (Doc. 122, ¶ 20). While the amp meter
needle would read “zero” when the battery was fully charged, the charger would actually
continue to deliver a charge to the fully charged battery. (Id. at ¶¶ 21-22). The parties agree that
the explosion would not have occurred had an alternative, regulated charger been used.
Defendants provided no warning or instruction to Mr. Martin that a regulated charger was the
safer charger to use with the subject battery.
2
Mr. Martin read the instruction manual that accompanied the charger. The manual
directed Mr. Martin to “add distilled water in each cell until battery acid reaches level specified
by battery manufacturer.” (Doc. 122 at 10, ¶ 36; Doc. 127 at 10, ¶ 10). Plaintiffs contend that
defendants did not provide any instructions, specifications, or warnings to this effect.
Mr.
Martin did not check the electrolyte level or add water to the subject battery at any time. (Doc.
122 at 11, ¶ 37).
LEGAL STANDARDS
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). In considering a summary judgment motion, courts
determine “whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477
at 251-52. The evidence of the non-movant is to be taken as true, and all justifiable inferences
are to be drawn in non-movant’s favor. Anderson, 477 U.S. at 255; see also Ribeau v. Katt, 681
F.3d 1190, 1194 (10th Cir. 2012). “Credibility determinations, the weighing of evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment. . . .” Anderson, 477 U.S. at 255. “[A]t the summary
judgment stage the judge’s function is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at
249.
“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.”
3
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (citations
omitted). When the record, taken as a whole, “could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Id. (quotations omitted). “The mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there
must be evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson,
477 U.S. at 252. In its review, the Court construes the record in the light most favorable to the
party opposing summary judgment. Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).
Because this is a diversity case, the Court applies the substantive law of Oklahoma and
federal procedural law. Ahrens v. Ford Motor Co., 340 F.3d 1142, 1145 (10th Cir. 2003).
Accordingly, Oklahoma products liability law applies to plaintiffs’ claims.
DISCUSSION
Plaintiffs’ Amended Complaint alleges claims of manufacturer’s products liability,
negligence, breach of warranty, and loss of consortium against defendants.
(Doc. 32).
Defendants move for summary judgment as to each of these claims. (Doc. 122).
I.
Design and Manufacturer’s Defect
Plaintiffs bring three claims premised on design and manufacturing defect: Count I
includes allegations of strict liability for design and manufacturing defect, Count III alleges
negligent design, and Count IV alleges negligent manufacturing. (See Doc. 32). Because
plaintiffs have provided no evidence of design or manufacturer’s defect, defendants are entitled
to summary judgment on any claims that rely entirely on such theories.
A. Strict Products Liability
Under Count I, plaintiffs bring a claim for manufacturer’s products liability based on both
design and manufacturing defects. (Doc. 32). To prevail on a claim of defective design,
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plaintiffs must show that (1) the battery was defective, (2) the battery was dangerous to an extent
not contemplated by an ordinary consumer,1 (3) the defect existed at the time it left the
possession and control of the manufacturer, and (4) the defect proximately caused the injuries.
Ahrens v. Ford Motor Co., 340 F.3d 1142, 1145 (10th Cir. 2003) (citing Woods v. Fruehauf
Trailer Corp., 765 P.2d 770, 773–74 (Okla.1988); Lamke v. Futorian Corp., 709 P.2d 684, 686
(Okla.1985)). Under Oklahoma law, “[a] product is defective in manufacture if it deviates in
some material way from its design or performance standards. The issue is whether the product
was rendered unsafe by an error in the manufacturing process.” Wheeler v. HO Sports, Inc., 232
F.3d 754, 757 (10th Cir.2000) (internal quotation marks and citations omitted).
Defendants argue that plaintiffs’ claims of design and manufacturing defect fail because
plaintiffs have failed to present any evidence that the battery was defectively designed or
manufactured. (Doc. 122 at 12-13). In response, plaintiffs quote from the report of their expert,
Dr. Dean Jacobson. (Doc. 127 at 13). In the cited portion of his report, Dr. Jacobson contends
that defendants failed to follow “recognized and established safe product engineering hierarchy.”
(Doc. 127-2 at 68). This hierarchy, he continues, requires manufacturers first to design their
products to eliminate safety hazards, second to guard against hazards that cannot be designed
away, and third to warn against remaining hazards. (Id.). The report indicates that defendants
“fail[ed] to employ any of the elements of the above hierarchy.” (Id.).
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To qualify as “unreasonably dangerous,” a product “must be dangerous to an extent beyond that
which would be contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics.” Swift v. Serv. Chem., Inc., 310
P.3d 1127, 1131 (Okla. Civ. App. 2013).
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To begin with, this conclusory statement cannot constitute evidence under Daubert,2 as it
does not enable the Court to judge its reliability. See Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 589 (1993). A typical sentence from Dr. Jacobson’s report reads as follows: “The
plate growth and resultant defective conditions resulting in the explosion were not caused by Mr.
Martin, but rather by Johnson Controls.” (Doc. 127-2 at 82, ¶ 16.35). And again:
The defective plate growth and corresponding structural
degradation conditions in the subject battery resulted in an
unreasonably dangerous product which created a substantial risk of
personal injury due to the lack of implementation of available or
established industry standards and practices and state of the art
technology relative to marine battery design, warnings,
instructions, fabrication and quality control necessary for safe
battery operation and reasonable conformity with consumer
expectations.
(Id. at 83, ¶ 16.37). At best, this statement could be interpreted to raise allegations of design
defect and failure to adequately warn. However, at his deposition, Dr. Jacobson made clear that,
apart from inadequate warnings, he did not find that the battery independently suffered from a
manufacturing or design defect. (Doc. 127-1 at 27:2-25, 28:6-14).
In other words, plaintiffs have presented evidence of a failure to warn rather than a design
or manufacturing defect. As defendants’ Reply states, design defect, manufacturing defect, and
inadequate warning are three separate bases giving rise to a product liability claim. (See Doc.
130 at 3). Plaintiffs’ attempt to base their claims of manufacturing and design defect upon an
alleged inadequate warning thus falls flat. Indeed, plaintiffs’ Response appears to concede that
any claim of defect is now limited to inadequate warnings. (See, e.g., Doc. 127 at 13 (“The
dispute at bar relates to the inclusion or exclusion of adequate instructions and warnings as part
of the design and/or manufacturing process.”)). Viewing the record in a light most favorable to
2
Defendants’ Motion to Exclude Certain Testimony of Plaintiffs’ Expert Dean Jacobson (Doc.
107) is still pending before the Court.
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plaintiffs, plaintiffs have provided insufficient evidence to show that the battery’s design made it
less safe than expected. Plaintiffs have put forth no evidence that the battery was rendered
unsafe by an effort in the manufacturing process. 3
See Wheeler, 232 F.3d at 757.
Having
reviewed the record and considered plaintiffs’ assertions, the Court finds that there are no
genuine issues of material fact regarding the existence of a manufacturing or design defect.
Accordingly, plaintiffs have forfeited the right to assert a claim premised upon either a design or
manufacturing defect theory.
Summary judgment as to Count I based on design and
manufacturing defect is therefore proper.
B. Negligence
Plaintiffs also bring two negligence claims against defendants.
Oklahoma allows
plaintiffs injured by an allegedly defective product to assert a negligence claim in addition to a
products liability claim. Honeywell v. GADA Builders, Inc., 271 P.3d 88, 96 (Okla. Civ. App.
2011) (“Even with the advent of strict products liability, the negligence cause of action remains
available to a plaintiff injured by a defective product.”). “Under Oklahoma law, the three
essential elements of a claim of negligence are: ‘(1) a duty owed by the defendant to protect the
plaintiff from injury, (2) a failure to properly perform that duty, and (3) the plaintiff’s injury
being proximately caused by the defendant’s breach.’” Gaines–Tabb v. ICI Explosives, USA,
Inc., 160 F.3d 613, 620 (10th Cir.1998) (quoting Lockhart v. Loosen, 943 P.2d 1074, 1079
(Okla.1997)).
As was the case with their strict liability claim, plaintiffs have failed to
3
The Court’s conclusion is not inconsistent with its March 28, 2014 Order (Doc. 93), which
determined that Dr. Jacobson’s report provided opinions regarding defective design and thus
discovery should not have been limited solely to plaintiffs’ failure to warn claims. (Doc. 93 at 57). First, the standards governing a summary judgment motion are different from those
governing discovery disputes. Moreover, the Court is persuaded by the fact that the Dr.
Jacobson’s deposition testimony as well as plaintiffs’ own Response make clear that plaintiffs’
claims of manufacturing and design defect are solely premised upon the their allegations of
failure to warn.
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demonstrate the existence of a genuine issue of material fact regarding their claims that
defendants negligently designed or manufactured the battery that injured Mr. Martin.
Accordingly, defendants are also entitled to summary judgment as to Counts III and IV of the
Amended Complaint. (See Doc. 32).
II.
Failure to Warn
Count I of plaintiffs’ Amended Complaint alleges three theories for holding defendants
strictly liable: design defect and manufacturing defect as described above, but also on the theory
that defendants “failed to place sufficient warnings on the battery.” (Doc. 32 at ¶¶ 13-16).
Count II alleges that defendants’ failure to warn was also negligent. (Id. at ¶¶ 18-19).
As the cases defendants cite make clear, inadequate warnings themselves make a product
defective and a defendant is held strictly liable for injuries caused by the lack of adequate
warnings. See Ahrens v. Ford Motor Co., 340 F.3d 1142, 1146 (10th Cir. 2003) (quoting McKee
v. Moore, 1982 OK 71, 648 P.2d 21, 23) (“A product may be considered ‘defective if it is placed
in the hands of the ultimate consumer without adequate warnings of the dangers involved in its
use.’”); Holt v. Deere & Co., 24 F.3d 1289, 1292 (10th Cir. 1994) (citing Smith v. United States
Gypsum Co., 612 P.2d 251, 253–54 (Okla. 1980) (“The alleged defect may be the result of a
problem in the product’s design or manufacture, or it may be the result of inadequate warnings
regarding use of the product.”).
In Oklahoma, “[w]hether Plaintiffs are proceeding under a negligence or manufacturer’s
products liability theory, the law concerning the adequacy of a product warning is similar.”
Freeland v. Ameristep, Inc., 2014 WL 1646948, at *7-8 (E.D. Okla. Apr. 24, 2014) (citing
Grover v. Superior Welding, Inc., 893 P.2d 500 (Okla. 1995) and Berry v. Eckhardt Porsche
Audi, Inc., 578 P.2d 1195, 1196 (Okla. 1978)); see also 53 A.L.R.3d 239 (“[I]t has been noted
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that notwithstanding the fact that there is no cross-reference from § 402A of the Restatement of
Torts 2d (which sets out the strict tort liability doctrine) to § 388 of the Restatement of Torts 2d
(which spells out the duty to warn in negligence actions), the principles applicable in the latter
should be applicable to the former.”). Defendants’ argument in favor of summary judgment is
that defendants had no duty to warn consumers, and that plaintiff cannot prove that defendants’
failure to warn caused plaintiff’s injury. Each is discussed below.
A. Duty to Warn
Under a negligence theory, a manufacturer has a duty to warn of injury caused by a
product where it (1) knows or has reason to know the product is likely to be dangerous for the
use for which it is supplied, (2) has no reason to believe that the intended user of the product will
recognize its dangerousness, and (3) fails to adequately inform the user of the dangerousness.
Duane v. Oklahoma Gas & Elec. Co., 833 P.2d 284, 286 (Okla. 1992) (citing Restatement of
Torts (Second), § 388). The standard is similar for a strict products liability claim:
[O]nly where the seller has reason to anticipate that danger may
result from a particular use, may he be required to give adequate
warning of the danger, and a product sold without such warning is
in a defective condition . . . . A duty to warn must also be based
upon the foreseeability that the user would use the product in that
way, the type of danger involved, and foreseeability of the user's
knowledge of the danger.
Id. (citing Restatement of Torts (Second), § 402A, Comment h).
As a general rule, “Oklahoma law provides that when a particular danger exists as a
consequence of a foreseeable use, and the danger is not obvious or generally known, a duty to
warn arises.” Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1334 (10th Cir. 1996). Thus, a
manufacturer or supplier is under no duty to warn where the product is used in an unlikely or
unforeseeable manner. Duane, 833 P.2d at 286. However, where the defendant “has reason to
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anticipate that danger may result from a particular use,” a product sold without a warning
regarding that danger is defective. Id. Hence, the defendant is liable for injury caused by such a
defective product, except where the danger is obvious or generally known or the user
knowledgeable. Id.
Here, plaintiffs have presented evidence of a danger created by an imminently
foreseeable use of defendants’ battery. Batteries exist to store energy, and it is reasonably
foreseeable that a battery owner would attempt to charge a battery. Plaintiffs have presented
evidence that defendants’ battery was defective because it failed to warn consumers that it
required a type of battery charger designed to prevent overcharging and electrolyte depletion.
Specifically, the report by plaintiffs’ expert provides support for the claim that defendants had
reason to know that their battery was susceptible to the type of degradation that could lead to the
eventual explosion that injured Mr. Martin. (Doc. 127-2 at 83). Viewing the facts in the light
most favorable to plaintiffs, the typical battery user would not expect an apparently normal use
of the battery to cause it to explode. Given that it was foreseeable that a battery owner would
attempt to charge his battery, and that defendants had reason to know that unless charged
correctly—i.e., with a regulated charger—defendants were under a duty to warn potential battery
purchases of this danger. Without a proper warning regarding the use of a charger designed to
prevent overcharging and electrolyte depletion, the battery was defective. Thus, defendants’
Motion is denied on this ground.
First, defendants’ argument that they were under no duty to warn plaintiffs regarding Mr.
Martin’s charger does not address the lack of warning regarding electrolyte replenishment.
Second, the cases defendants cite in support of their argument do not apply to the facts of this
case. For example, defendants cite Schrock v. Wyeth, Inc., 727 F.3d 1273 (10th Cir. 2013),
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where the Tenth Circuit held that brand-name drug manufacturers do not have a duty to warn
consumers of dangers associated with their competitors’ products, specifically, generic versions
of the drug. Defendants also rely on cases from outside the Tenth Circuit for the proposition that
a manufacturer has no duty to warn of dangers associated with other manufacturer’s products.
O'Neil v. Crane Co., 53 Cal. 4th 335, 351, 266 P.3d 987, 997 (2012) (under California law, “the
duty to warn is limited to risks arising from the manufacturer’s own product,” and does not
“extend[] to hazards arising exclusively from other manufacturers’ products” (emphasis in
original)); Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 298, 591 N.E.2d 222, 225
(1992) (“Under the circumstances of this case, we decline to hold that one manufacturer has a
duty to warn about another manufacturer's product when the first manufacturer produces a sound
product which is compatible for use with a defective product of the other manufacturer.”). but
none of these cases involve another manufacturer’s product that is a non-defective, noncompatible model of a product that is required for the defendant’s own product to function.
Defendants repeatedly assert that it was the charger, and not the subject battery, that was
defective. But this mischaracterizes the facts—the charger Mr. Martin purchased was a standard,
unregulated charger, which, unlike a standard, regulated charger, lacked a feature that would
“stop it from overcharging a battery without any user interaction.” (Doc. 127-1 at 12:1-3).4
Viewing the evidence in a light most favorable to plaintiffs, there is nothing in the record to
support defendants’ allegation that the subject battery was “defective” within the meaning of
product liability law. It was simply a different charger model than the one that would have
4
At his deposition, Dr. Jacobson was asked: “If a regulated battery charger would have been
used instead of the subject charger, is it your opinion that the subject battery would not have
exploded?” He responded: “Yes, that the correct, regulated charge it would have eliminated –not
allowed overcharging.” (Doc. 127-1 at 17:1-5).
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ensured that defendants’ battery would not be overcharged. The Court is likewise unpersuaded
by defendants’ assertion that Mr. Martin “misused” the charger. It is unreasonable to assume
that Mr. Martin—or any other consumer—would know that the battery was continuing to be
charged when the amp meter read zero.
A reasonable jury could find that without a warning
provided to its customers regarding the safer charger to use, defendants’ battery was defective.
In any event, plaintiffs have raised a triable issue of fact as to whether defendants were under a
duty to warn Mr. Martin regarding the safer charger to use with their battery.
B. Causation
Defendants assert that plaintiffs cannot prove the causation element of their failure to
warn claim as Mr. Martin did not read the warnings the battery did have, nor did he heed the
warnings on the battery charger. (Doc. 122 at 14-16).
In order to prevail, plaintiffs must establish that the allegedly defective warning was the
cause of Mr. Martin’s injuries. “The failure to adequately warn of a known potential risk renders
a product defective; however, the plaintiff must establish that the failure to warn caused the
injury.” Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1332–33 (10th Cir. 1996) (internal citations
omitted). Oklahoma law recognizes “a rebuttable presumption that plaintiff would have read and
heeded an adequate warning.”
Id. at 1332.
In the absence of evidence rebutting the
presumption, a plaintiff need not produce evidence that he would have acted differently if an
adequate warning had been given. But once the opposing party meets its burden to come
forward with evidence rebutting the presumption, the presumption disappears. Id. at 1332.
Defendants acknowledge that there is a rebuttable presumption, but argue that here that
presumption has been overcome: “Plain and obvious warnings were prominently placed on the
cover of his battery. Plaintiff admitted that he knew there was writing on the battery, but that he
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did not know what it said, and that he did not read any warnings on the battery at any time.”
(Doc. 122 at 15). In fact, Mr. Martin testified that he saw the writing but did not remember what
it said, not that he did not read any warnings on the battery at any time.5 (Doc. 127-4 at 89:2390:3). It is likely that a warning that the battery required a specific type of charger would have
caught Mr. Martin’s attention as he went to charge it, to say nothing of a warning detailing the
maintenance required by his battery.
Viewing the facts in the light most favorable to the non-movant, the Court finds that
defendants have failed to overcome the presumption that Mr. Martin would have read and
heeded an adequate warning. While plaintiffs have forfeited the right to pursue a products
liability claim on either a design defect or manufacturing defect theory, they have presented
evidence adequate to overcome defendants’ motion for summary judgment as to both the strict
products liability and negligence claims under a failure to warn theory. Defendants’ Motion is
denied on this ground.
III.
Breach of Warranty
Plaintiffs allege two claims for breach of warranty: (1) breach of express warranty based
on the sale of a defective battery and (2) breach of implied warranty of merchantability and
implied warranty of fitness for a particular purpose. (Doc. 32 at ¶¶ 28-35). In response,
defendants argue that they are entitled to summary judgment on the following bases: (1) the
battery’s written warranty “expressly excludes any other warranties, including the implied
warranties of merchantability and fitness for a particular purpose; (2) the written warranty is
“expressly limited to the replacement (or partial replacement) of the battery”; and (3) the limited
warranty states that it “DOES NOT COVER DAMAGE TO THE BATTERY CAUSED BY . . .
5
Defendants note that Mr. Martin did read his charger’s instruction manual. (Doc. 122 at 16).
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A FAILURE TO KEEP THE BATTERY PROPERLY CHARGED OR MAINTAINED.” (Doc.
122 at 24). Plaintiffs do not respond to the Motion with respect to the warranty claims, except to
say that “there is indeed a genuine dispute at [sic] to whether or not Martin’s use or alleged
misuse of the battery at issue was foreseeable for purposes of warranty claims under Oklahoma
law.” (Doc. 127 at 16).
In Oklahoma, both express and implied warranties are governed by the U.C.C. An
express warranty is defined as: “Any affirmation of fact or promise made by the seller to the
buyer which relates to the goods and becomes part of the basis of the bargain creates an express
warranty that the goods shall conform to the affirmation or promise.” Okla. Stat. tit. 12A, § 2313. Moreover, the U.C.C. does not require an express warranty to include “formal words such
as ‘warrant’ or ‘guarantee’ or . . . a specific intention to make a warranty.” Id. Here, the
warranty clearly states that it does not cover any damage arising from the battery’s charge or
maintenance. It also states that the warranty is strictly limited to replacement of the battery.
Plaintiffs have not raised any argument or provided any evidence that the express warranty was
breached. Moreover, plaintiffs concede that overcharging caused the battery to explode and
injure Mr. Martin. Thus, summary judgment as to the express warranty claim is proper.
Under Oklahoma law, a warranty of merchantability is implied in every contract for the
sale of goods. Okla. Stat. tit. 12A, § 2-314. Implied warranties of fitness and merchantability,
however, can be excluded or modified. “[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.” Okla. Stat. tit. 12A, § 2-316. The Oklahoma
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U.C.C. defines “conspicuous” as “so written, displayed, or presented that a reasonable person
against whom it is to operate ought to have noticed it.” Okla. Stat. tit. 12A, § 1-201.
Here, the disclaimer that the battery excludes the implied warranties of merchantability
and fitness for a particular purpose appears in writing twice in the same document, first in the
Interstate Batteries SLI Warranty and then, in the All Battery Center Store Warranty. (Doc. 1083). The first appears in a sentence set off from the other text of the Limited Warranty. (Id. at 2).
There, the word “MERCHANTABILITY” appears in capital letters and the other words in
minuscule. (Id.). In the second warranty, further down the page, the warranties receive their
own paragraph and are written, unlike the rest of the document, in majuscule. (Id. at 3).
Plaintiffs make no claim to suggest that these warranties do not meet the definition of
conspicuous. The Court finds that they do. Accordingly, defendants are entitled to summary
judgment as to plaintiffs’ claims of implied warranty and express warranty.
IV.
Loss of Consortium
Finally, defendants argue that they are entitled to summary judgment as to Mrs. Martin’s
loss of consortium claim. As loss of consortium is a derivative claim, Mrs. Martin’s claim
persists as to the claims remaining in light of this Order. Summary judgment is therefore
inappropriate.
CONCLUSION
For the reasons above, defendants’ Corrected Motion for Summary Judgment and
Memorandum of Law in Support (Doc. 122) is granted in part and denied in part.
SO ORDERED this 12th day of August, 2016.
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