Lynch et al v. Gander Mountain Company
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 8/27/13. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PETER LYNCH and THERESA LYNCH,
CIVIL ACTION NO. 3:CV-13-0637
GANDER MOUNTAIN COMPANY,
Presently before the Court is Defendant Gander Mountain (“Gander Mountain”)
Company’s partial Motion to Dismiss (Doc. 18) Plaintiffs’ Amended Complaint. Gander
Mountain seeks dismissal of Counts I, III, and IV of Plaintiff’s Amended Complaint. Count
I alleges a strict products liability claim under the Restatement (Second) of Torts, Count III
asserts a claim for breach of the warranty of merchantability, and Count IV sets forth a claim
for breach of the warranty of fitness for a particular purpose. Because the Restatement
(Third) of Torts will be applied to Plaintiffs’ strict liability claim, Count I of the Amended
Complaint will be dismissed. However, because Plaintiffs adequately state claims for
breach of the warranty of merchantability and breach of the warranty of fitness for a
particular purpose, Gander Mountain’s motion to dismiss Counts III and IV will be denied.
The facts as set forth in the Amended Complaint are as follows:
At all times relevant, Defendant Gander Mountain engaged in the business of
distributing and selling products to consumers, including Firepots and Fire Gel Pourable Gel
Fuel (“Fire Gel”) created by NAPA Home & Garden. (Am Compl., ¶ 4.) Gander Mountain
owned and operated a retail outlet in Middletown, New York. (Id. at ¶ 5.)
On or about May 1, 2011, Plaintiff Theresa Lynch (“Mrs. Lynch”), wife of Plaintiff
Peter Lynch (“Mr. Lynch”), purchased a container of Fire Gel from the Gander Mountain
store in Middletown. (Id. at ¶ 12.) The Firepot was also purchased at the same location and
given to Plaintiffs as a gift. (Id.) The Fire Gel bottle proclaimed to be “Planet Safe and
People Safe.” (Id. at ¶ 9.)
On or about May 28, 2011, Mr. Lynch’s sister poured the Fire Gel into the Firepot as
directed. (Id. at ¶ 13.) The Fire Gel ignited and burst into flames, projecting its contents two
to three feet out of the bottle. (Id.) The contents landed in Mr. Lynch’s lap, causing severe
On June 23, 2011, NAPA Home & Garden issued a press release stating that the
United States Consumer Product Safety Commission issued a recall of all pourable gel
fuels sold by NAPA Home & Garden. (Id. at ¶ 11.)
Based on the foregoing events, Plaintiffs, on or about February 5, 2013, filed a
complaint in the Court of Common Pleas of Pike County, Pennsylvania. After Gander
Mountain removed the action to this Court, Plaintiffs filed the Amended Complaint. (Doc.
16) The Amended Complaint consists of seven claims: Strict Products Liability under the
Restatement (Second) of Torts (Count I); Negligence (Count II); Breach of Warranty of
Merchantability (Count III); Breach of Warranty of Fitness for a Particular Purpose (Count
IV); Loss of Consortium (Count V); Strict Liability under the Restatement (Third) of Torts
(Design Defect) (Count VI); and Strict Liability under the Restatement (Third) of Torts
(Design Defect- Inadequate Warning) (Count VII).
On July 15, 2013, Gander Mountain filed a motion to dismiss Counts I, III, and IV of
the Amended Complaint. (Doc. 18.) The motion to dismiss is now fully briefed and ripe for
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to
determining if a plaintiff is entitled to offer evidence in support of their claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of
establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.
Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed factual allegations are
not required. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. However, mere conclusory
statements will not do; “a complaint must do more than allege the plaintiff's entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint
must “show” this entitlement by alleging sufficient facts. Id. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). As such,
“[t]he touchstone of the pleading standard is plausability.” Bistrian v. Levi, 696 F.3d 352,
365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible
on its face,” Twombly, 550 U.S. at 570, 127 S. Ct. 1955, meaning enough factual
allegations “‘to raise a reasonable expectation that discovery will reveal evidence of’” each
necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. “When there are wellpleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S. Ct. 1937.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider “undisputedly authentic”
documents when the plaintiff's claims are based on the documents and the defendant has
attached copies of the documents to the motion to dismiss. Pension Benefit Guar., 998 F.2d
at 1196. The Court need not assume the plaintiff can prove facts that were not alleged in
the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d
Cir. 1998), or credit a complaint's “‘bald assertions’” or “‘legal conclusions.’” Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).
The Motion to Dismiss
As noted, Gander Mountain moves to dismiss the strict liability claim in Count I and
the breach of warranty claims in Counts III and IV of the Amended Complaint. For the
reasons that follow, the strict products liability claim in Count I will be dismissed, but
Plaintiffs will be permitted to proceed with their breach of warranty claims in Counts III and
IV of the Amended Complaint.
Strict Products Liability under Restatement (Second) of Torts (Count I)
Gander Mountain’s motion to dismiss the strict liability claim based on the
Restatement (Second) of Torts will be granted.
The substantive law of Pennsylvania applies to this strict products liability claim. 28
U.S.C. § 1332(a)(1); Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing
Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)). According
to the Erie doctrine, a court sitting in diversity should apply the state law as pronounced by
the highest court of the state. See Edwards v. HOVENSA, LLC, 497 F.3d 355, 361 (3d Cir.
2007). “The highest court of the state is the final arbiter of what is state law. When it has
spoken, its pronouncement is to be accepted by federal courts as defining state law unless
it has later given clear and persuasive indication that its pronouncement will be modified,
limited, or restricted.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236, 61 S. Ct. 179, 85 L.
Ed. 139 (1940) (citing Wichita Royalty Co. v. City Nat’l Bank of Wichita Falls, 306 U.S. 103,
107, 59 S. Ct. 420, 83 L. Ed. 515 (1939)). However, when the highest court of the state has
not addressed an issue, a federal court must predict how the highest state court would
resolve the issue. See Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir. 2010).
And, in making this prediction, the court “may give serious consideration to the opinion of
an intermediate appellate court.” Aetna Cas. & Sur. Co. v. Farrell, 855 F.2d 146, 148-49 (3d
Cir. 1988) (citing Commercial Union Ins. Co. v. Butuminous Cas. Corp., 851 F.2d 98, 100
(3d Cir. 1988); Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 117 (3d Cir. 1987); Wilson
v. Asten-Hill Mfg. Co., 791 F.2d 30, 32 (3d Cir. 1986)). The decisions of intermediate state
appellate courts can be disregarded when a federal court “‘is convinced by other persuasive
data that the highest court of the state would decide otherwise.’” Nationwide Mut. Ins. Co.
v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000) (quoting West, 311 U.S. at 237, 61 S. Ct. 179).
Once the United States Court of Appeals for the Third Circuit predicts how a state’s
highest court would resolve an issue, district courts within the circuit are bound by this
prediction “unless the state supreme court issues a contrary decision or it appears from a
subsequent decision of the appellate courts that the court of appeals erred.” Largoza v.
Gen. Elec. Co., 538 F. Supp. 1164, 1166 (E.D. Pa. 1982) (citing Doane v. Travelers Ins.
Co., 266 F. Supp. 504, 405 (E.D. Pa. 1966)). The Third Circuit has held that “federal district
courts applying Pennsylvania law to products liability cases should look to sections 1 and
2 of the Restatement (Third) of Torts.” Covell v. Bell Sports, Inc., 651 F.3d 357, 359 (3d Cir.
2011); see also Sikkelee v. Precision Airmotive Corp., No. 12-8081, 2012 WL 5077571, at
*1 (3d Cir. Oct. 17, 2012) (“The precedential holding in Berrier . . . represents the Court's
view of Pennsylvania's product liability law.”). The Pennsylvania Supreme Court has not
ruled whether the Restatement (Third) of Torts provides the controlling analysis for products
liability claims rather than the analysis under the Restatement (Second) of Torts. See Giehl
v. Terex Utilities, No. 12-0083, 2012 WL 1183719, at *9 (M.D. Pa. Apr. 9, 2012). Therefore,
based on the Third Circuit’s pronouncement that the Restatement (Third) applies to
products liability actions arising under Pennsylvania law, and absent a decision from the
Pennsylvania Supreme Court to the contrary, the Court will apply the Restatement (Third)
in this matter.1 Thus, Plaintiffs’ claim based on the Restatement (Second) of Torts will be
The Pennsylvania Supreme Court, in Tincher v. Omega Flex, Inc., 64 A.3d 626,
626 (Pa. Mar. 26, 2013), granted the Petition for Allowance of Appeal to address
Breach of Warranty of Merchantability (Count III) and Breach of Warranty
of Fitness for a Particular Purpose (Count IV)
Gander Mountain’s motion to dismiss the breach of warranty claims will be denied.
The implied warranty of merchantability warrants that goods “are fit for the ordinary
purposes for which such goods are used.” 13 Pa. Cons. Stat. § 2314(b)(3). This warranty
guarantees a minimum level of quality:
[the implied warranty of merchantability] does not require that the goods be the
best quality, or the best obtainable, but it does require that they have an
inherent soundness which makes them suitable for the purpose for which they
are designed, that they be free from significant defects, that they perform in
the way that goods of that kind should perform, and that they be of reasonable
quality within expected variations and for the ordinary purpose for which they
Gall v. Allegheny Cnty. Health Dep't, 521 Pa. 68, 555 A.2d 786, 789-90 (Pa.1989) (citations
To establish the existence of an implied warranty of fitness for a particular purpose,
the plaintiff must demonstrate that “(1) the seller had reason to know of the particular
purpose for which the buyer is purchasing the product and (2) the seller knows that the
buyer is relying on its skill and judgment to furnish the proper good.” Brantner v. Black &
Decker Mfg. Co., 831 F. Supp. 460, 461 (W.D. Pa. 1993) (citing 13 Pa. Cons. Stat. § 2315;
Altronics of Bethlehem Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir. 1992)).
Both the implied warranty of merchantability and the warranty of fitness
for a particular purpose arise by operation of law and serve to protect buyers
from loss where the goods purchased are below commercial standards or are
unfit for the buyer's purpose. In order to be merchantable, goods must be “fit
for the ordinary purposes for which such goods are used.” The warranty of
fitness for a particular purpose is more exacting. It requires that the seller had
reason to know of the buyer's particular purpose at the time of contracting and
that the buyer was relying on the seller's expertise. In that case, the goods are
implicitly warranted to be fit for that particular purpose. To establish a breach
of either warranty, plaintiffs must show that the equipment they purchased
“[w]hether this Court should replace the strict liability analysis of Section 402A of
the Second Restatement with the analysis of the Third Restatement.”
from defendant was defective.
Altronics, 957 F.2d at 1107.
Here, Plaintiffs adequately allege claims for breach of the warranty of merchantability
and breach of the warranty of fitness for a particular purpose.
Mountain’s argument for dismissal of Counts III and IV of the Amended Complaint pursuant
to Reese v. Ford Motor Co., 499 F. App’x 163 (3d Cir. 2012) is not persuasive. The Third
Circuit in Reese simply noted that “the elements that prove a breach of the implied warranty
of merchantability are essentially the same as those to recover on a strict products liability
claim.” Id. at 166 (citing Gumbs v. Int’l Harvester, Inc., 718 F.2d 88, 94 (3d Cir. 1983)).
Because Plaintiffs sufficiently plead the necessary elements of the breach of warranty
claims, Gander Mountain’s motion to dismiss Counts III and IV will be denied.
For the above stated reasons, Gander Mountain’s motion to dismiss will be granted
in part and denied in part.
An appropriate order follows.
August 27, 2013
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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