SMITH et al v. ALIEN FLIER, LLC et al
Filing
43
OPINION resolving 14 defendant Brand 44 Trading, LLC's Motion to Dismiss. Signed by Judge David S. Cercone on 9/30/16. (mwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CONNIE E. SMITH and REX T. SMITH, )
Personal Representatives of the Estate of
)
Rex M. Smith,
)
)
Plaintiffs,
)
)
v.
)
)
ALIEN FLIER, LLC and BRAND 44
)
TRADING, LLC,
)
)
Defendants.
)
2:15cv1128
Electronic Filing
OPINION
Plaintiffs commenced this wrongful death and survival action seeking redress for the
death of their son. Plaintiffs advance causes of action for product liability, negligence and
implied warranty. They request punitive damages, which has been set out at separate counts
against each defendant. Presently before the court is Brand 44 Trading, LLC's motion to dismiss
count VII of plaintiffs’ complaint, which seeks punitive damages against Brand 44. For the
reasons set forth below, the motion will be denied.
It is well-settled that in reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) "[t]he applicable standard of review requires the court to accept as true all
allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia, 868
F.2d 644, 645 (3d Cir. 1989). Under the Supreme Court's decision in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 561 (2007), dismissal of a complaint pursuant to Rule 12(b)(6) is
proper only where the averments of the complaint plausibly fail to raise directly or inferentially
the material elements necessary to obtain relief under a viable legal theory of recovery. Id. at
544. In other words, the allegations of the complaint must be grounded in enough of a factual
basis to move the claim from the realm of mere possibility to one that shows entitlement by
presenting "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id. In contrast, pleading facts that only offer "'labels or conclusions' or 'a formulaic recitation of
the elements of a cause of action will not do,'" nor will advancing only factual allegations that
are "'merely consistent with' a defendant's liability." Id. Similarly, tendering only "naked
assertions" that are devoid of "further factual enhancement" falls short of presenting sufficient
factual content to permit an inference that what has been presented is more than a mere
possibility of misconduct. Id. at 1949-50; see also Twombly, 550 U.S. at 563 n. 8 (A complaint
states a claim where its factual averments sufficiently raise a "'reasonably founded hope that the
[discovery] process will reveal relevant evidence' to support the claim.") (quoting Dura
Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347 (2005) & Blue Chip Stamps v. Manor Drug
Stores, 421 U.S. 723, 741 (1975)); accord Morse v. Lower Merion School Dist., 132 F.3d 902,
906 (3d Cir. 1997) (a court need not credit "bald assertions" or "legal conclusions" in assessing a
motion to dismiss) (citing with approval Charles Alan Wright & Arthur R. Miller, FEDERAL
PRACTICE AND PROCEDURE § 1357 (2d ed. 1997) ("courts, when examining 12(b)(6) motions,
have rejected 'legal conclusions,' 'unsupported conclusions,' 'unwarranted inferences,'
'unwarranted deductions,' 'footless conclusions of law,' or 'sweeping legal conclusions cast in the
form of factual allegations.'").
This is not to be understood as imposing a probability standard at the pleading stage.
Iqbal, 556 U.S. at 678 ("'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.'"); Phillips v. County
2
of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (same). Instead, "[t]he Supreme Court's
Twombly formulation of the pleading standard can be summed up thus: 'stating ... a claim
requires a complaint with enough factual matter (taken as true) to suggest the required element ...
[and provides] enough facts to raise a reasonable expectation that discovery will reveal evidence
of the necessary element.'" Phillips, 515 F.3d at 235; see also Wilkerson v. New Media
Technology Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) ("'The complaint must state
'enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.'") (quoting Phillips, 515 F.3d at 235) (citations omitted). "Once a claim has
been stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint." Twombly, 550 U.S. at 563.
The facts read in the light most favorable to plaintiffs are as follows. Plaintiffs' 13 yearold son, Rex M. Smith, was visiting Vincent Allen’s home on June 8, 2014. Complaint at ¶ 9.
Vincent Allen had purchased and installed in his backyard a Brand 44 Slackers 90’ Zipline Eagle
Series and an Alien Flier Safety Stop Block and 1/2” Shock Cord. Id. at ¶ 10. The Brand 44
Slackers zip line did not come with a stop block mechanism nor did Brand 44 offer one at the
time so Mr. Allen purchased and installed the Alien Flier Safety Stop Block. Id. at ¶ 11. The
Brand 44 zip line also was sold without any warning regarding the purchase or use of stop blocks
sold by other companies. Id. at ¶ 13. Brand 44 now sells a stop-block mechanism called the
Bungee Brake, and the instruction manual for that product includes a warning that anchors can
become projectiles and cause severe and fatal injuries. Id. at ¶ 14.
Mr. Allen installed the Brand 44 zip line and Alien Flier stop block according to the
manufacturers’ instructions. Id. at ¶ 15. The Brand 44 zip line and Alien Flier stop block were
both used without any alteration to their original design and condition. Id. at ¶ 16. To secure the
Alien Flier stop block Mr. Allen chose "option 1" provided on page six of the Alien Flier
3
Installation/Owner’s Manual. This option instructed that consumers secure the bungee cord by
tying it to a ground stake. Id. at ¶ 17. Mr. Allen utilized a cork-screw style ground stake.
As Rex was riding the zip line the trolley contacted the Alien Flier stop block. At that
point the bungee cord attached to the stop block was placed under significant tension. The metal
cork-screw ground stake to which the bungee cord was attached then became dislodged from the
ground, at which point it became a projectile and followed a path towards the Alien Flier stop
block at a high rate of speed. Id.at ¶ 20, 22. Rex’s body was directly in the path of this steel
projectile. Rex was struck in the back of the head by the ground stake, resulting in the fracturing
of his skull and severe and irreparable trauma to his brain. Id.at ¶ 23, 24. Rex was transported to
the Children’s Hospital of Pittsburgh, where he was placed on life support. Plaintiffs thereafter
determined it was best to remove their son from life support, and Rex died on June 10, 2014 at
age 13. Id. at ¶ 25, 26.
Plaintiffs pray for punitive damages on the basis that 1) Brand 44 knew or should have
known of the highly probable and potentially fatal risks attendant to anchoring a stop block to
any object other than one permanently affixed to the ground or so heavy as to be immovable and
it did not design against that risk, and 2) it failed to warn consumers of the risks inherent in their
product. In doing so Brand 44 acted with wanton and reckless indifference to the rights of
decedent and proximately caused his pain, suffering and death.
Defendant requests the court dismiss plaintiffs' claim for punitive damages on the basis
that (1) it has been pled as a separate cause of action, and a party may not recover punitive
damages separate and apart from an independent cause of action and (2) plaintiffs' complaint
fails to plead sufficient facts to show an entitlement to punitive damages in any event. Plaintiffs
counter that (1) it would be premature to dismiss their claim for punitive damages prior to giving
them an opportunity to take discovery, (2) they did not intend to raise a separate cause of action
4
for punitive damages, and (3) they have set forth facts sufficient to support a claim for punitive
damages.1
Defendant’s argument that plaintiffs "claim" for punitive damages is subject to dismissal
is unavailing for several reasons. First, a truncated assessment of defendant’s recoverable
damages is not a warranted undertaking at the pleading stage. The applicable federal pleading
standards require a party to set forth a plausible showing of entitlement to relief pursuant to a
cognizable theory of recovery. See Fowler v. UPMC Shadyside, 578 F.3d 203, 212-213 (3d Cir.
2009) (“It is axiomatic that the standards for dismissing claims under Federal Rule of Civil
Procedure 12(b)(6) and granting judgment under either Federal Rule of Civil Procedure 50 or
Federal Rule of Civil Procedure 56 are vastly different."). They do not require a plaintiff to meet
a quantum of proof. Id. A plaintiff meets the pleading standards by advancing factual
allegations that present a plausible showing that each element of the claim is or can reasonably
be expected to be satisfied. And Twombly and its progeny do not mandate a micro or more
nuanced analysis at this juncture. See Crestwood Membranes, Inc. v. Constant Services, Inc.,
2016 WL 659105, *6 (M.D. Pa. Feb. 17, 2016) ("While Defendant is correct that i2M will need
to prove that consequential damages 'were reasonably foreseeable and within the contemplation
of the parties at the time they made the contract,' to recover consequential damages for breach of
contract [], federal pleading standards simply do not require i2M to prove, in its Complaint, its
entitlement to damages for properly stated causes of action."). Thus, we decline Brand 44's
invitation to parse through each component of plaintiffs' claimed damages and scrutinize it for
proof that will permit an ultimate recovery.
Plaintiff concedes that punitive damages are not recoverable in a wrongful death action. They
continue to pursue punitive damages pursuant to the survival action.
5
1
Second, plaintiff has sufficiently advanced a plausible showing for the recovery of
punitive damages in any event. Pennsylvania law permits the recovery of punitive damages
where it can be established that (1) the defendant had a subjective appreciation of the risk of
harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be,
in conscious disregard of that risk. Hutchinson ex rel. Hutchinson v. Luddy, 870 A.2d 766, 772
(Pa. 2005), citing Martin v. Johns-Manville Corp., 508 Pa. at 171-72, 494 A.2d at 1097-98.
Of course, plaintiffs' asserted right to recover punitive damages is contingent upon their
ability to establish liability for tortious conduct pursuant to one or more of the advanced causes
of action. But as a general matter, under Pennsylvania product liability law “those who sell a
product (i.e., profit from making and putting a product in the stream of commerce) are held
responsible for damage caused to a consumer by the reasonable use of the product.” Tincher v.
Omega Flex, Inc., 104 A.3d 328, 382 (Pa. 2014) (citing Miller v. Preitz, 221 A. 2d 320, 334-35
(Pa. 1966)).
Brand 44 cannot dispute the factual assertions that (1) it sold a product to Vincent Allen,
(2) individuals such as Rex were foreseeable users of the product, and (3) injury and death were
caused to Rex as a result of reasonable use of the product. Plaintiffs further allege that (1)
defendant knew or should have known of the highly probable and potentially fatal risks attendant
to anchoring a stop block to any object other than one permanently affixed to the ground or so
heavy as to be immovable and they did not design against that risk; and (2) defendant knew or
should have known of the highly probable and potentially fatal risks attendant to anchoring a
stop block to any object other than one permanently affixed to the ground or so heavy as to be
immovable and they failed to warn consumers/users of the risks inherent in their product. It also
is averred that defendant subsequently began to sell its own stop block and included such a
warning.
6
Given the above allegations an issue of fact is raised as to when Brand 44 gained the
knowledge needed to understand such a warning was appropriate. A reasonable inference can be
drawn that it was prior to the sale and/or Rex's death. Taking these allegations to be true and
drawing all reasonable inferences in plaintiffs' favor, plaintiffs have stated a claim with enough
facts to suggest an entitlement to punitive damages, and have raised a reasonable expectation that
discovery will reveal evidence of the elements necessary to satisfy their claim. Consequently,
plaintiffs' ability to recover punitive damages which accompanies the causes of action attaching
to the survival action cannot be eliminated under the guise of the federal pleading standards.
Brand 44 correctly posits that punitive damages cannot be recovered separate and apart
from an independent cause of action. See Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800,
802 (Pa. 1989). But its assertion that plaintiffs' claim for punitive damages constitutes a separate
cause of action and should therefore be dismissed relies primarily on Ruehl v. S.N.M.
Enterprises, Inc., 2015 WL 237456, *2 (E.D. Pa. May 18, 2015). There, the court held that
where a plaintiff’s claim for punitive damages may be interpreted either as asserting an
independent claim for relief or as one premised on the underlying claims, it should not be
dismissed to the extent that it seeks punitive damages "as part of the damages calculation
contingent on [the] substantive underlying claim." Id.
Here, as in Ruehl, plaintiffs' request for punitive damages is given its own separate
heading and can therefore be interpreted as advancing an independent claim for relief.
Notwithstanding any such construction, it also clearly appears to be premised on plaintiffs'
substantive causes of action. Given that plaintiffs have pled causes of action that give rise to the
ability to recover punitive damages and the pleading standards do not demand the exacting
specificity advocated by Brand 44, the requested damage remedy must be permitted to move
forward.
7
For the reasons set forth above, Brand 44's motion to dismiss the ability to recover
punitive damages will be denied. An appropriate order will follow.
Date: September 30, 2016
s/David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:
Victor H. Pribanic, Esquire
Ernest J. Pribanic, Esquire
Thomas P. Birris, Esquire
Stuart H. Sostmann, Esquire
Patrick L. Mechas, Esquire
Benjamin Sorisio, Esquire
(Via CM/ECF Electronic Mail)
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?