McRee v. Dick's Sporting Goods Inc et al
ORDER AND OPINION granting in part and denying in part 123 Plaintiff's Motion to Reconsider. The Court VACATES parts IV.A ("Warning Defect") and IV.B ("Design Defect") of the Court's order of Ap ril 28, 2017 (Dkt. No. 121) andDENIES Defendants' motion for summary judgment (Dkt. No. 81) as to warning and design defect claims. The motion to reconsider is otherwise DENIED. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 11/9/2017.(sshe, )
IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Archie D. McRee,
Civil Action No. 9: 15-4579-RMG
ORDER AND OPINION
Dick's Sporting Goods, Inc. , and Paradigm )
Health & Wellness, Inc., jlkla Paradigm
Fitness Equipment, Inc.,
This matter is before the Court on Plaintiffs motion to reconsider the Court's order
granting summary judgment for Defendants. For the reasons set forth below, the Court grants in
part and denies in part the motion to reconsider.
On January 22, 2014, Plaintiff Archie D. McRee purchased a new Fitness Gear-brand
inversion table model FGIT-300, designed and supplied by Defendant Paradigm Health &
Wellness, Inc. , at the Dick' s Sporting Goods, Inc. store in the Citadel Mall in Charleston, South
Carolina. In October 2014, a recall was issued on the inversion table, allegedly "because the
ankle locking system was found to fail , causing severe injuries to users and consumers." (Dkt.
12.) Dick's Sporting Goods allegedly failed to notify Plaintiff about the recall. On
February 2, 2015 , Plaintiff inverted himself on the inversion table, and the ankle locking system
separated, causing him to fall headfirst to the floor, resulting in severe and debilitating injuries.
On October 7, 2015 , Plaintiff filed this product liability case in the South Carolina Court
of Common Pleas for Beaufort County. On November 12, 2015 , Defendants timely removed the
case under 28 U.S.C. §§ 1441 and 1446.
On August 19, 2016, Plaintiff filed an amended
complaint, alleging negligence (Count One), violation of the South Carolina Defective Product
Act, S.C. Code § 15-73-10, et seq. (Count Two), breach of implied warranty of merchantability
(Count Three), breach of implied warranty of fitness for a particular purpose (Count Four), and
breach of express warranties (Count Five).
On February 20, 2017, Defendants moved for
summary judgment. On April 28, 2017, Senior United States District Judge Weston Houck
granted Defendants' motion for summary judgment. On May 26, 2017, Plaintiff timely moved
for reconsideration of that order. Following Judge Houck's passing, the case was assigned to the
undersigned. The Court heard oral argument on the motion for reconsideration on November 8,
2017. This order now follows. 1
Rule 59(e) of the Federal Rules of Civil Procedure governs motions to alter or amend a
judgment; however, the rule does not provide a legal standard for such motions. The Fourth
Circuit has articulated "three grounds for amending an earlier judgment: (1) to accommodate an
intervening change in controlling law; (2) to account for new evidence not available at trial; or
(3) to correct a clear error of law or prevent manifest injustice." Pac. Ins. Co. v. Am. Nat'! Fire
Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (citing EEOC v. Lockheed Martin Corp., 116 F.3d
110, 112 (4th Cir. 1997); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993)). "Rule
59( e) motions may not be used, however, to raise arguments which could have been raised prior
to the issuance of the judgment, nor may they be used to argue a case under a novel legal theory
that the party had the ability to address in the first instance." Id. at 403 (internal citations
Pursuant to Rule 63 of the Federal Rules of Civil Procedure, the undersigned judge certifies his
familiarity with the record in this case and determines that this case may be completed without
prejudice to the parties.
omitted). Rule 59(e) provides an "extraordinary remedy that should be used sparingly." Id.
(internal citation omitted). The decision to alter or amend a judgment is reviewed for an abuse of
discretion. Id. at 402.
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to
any material fact" and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). In other words, summary judgment should be granted "only when it is clear that there is
no dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining
whether a genuine issue has been raised, the court must construe all inferences and ambiguities
in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'! Red Cross, 101 F.3d
1005, 1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of material fact.
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his
pleadings. Id. at 324. Rather, the non-moving party must demonstrate that specific, material
facts exist that give rise to a genuine issue. Id. Under this standard, "[c]onclusory or speculative
allegations do not suffice, nor does a 'mere scintilla of evidence"' in support of the non-moving
party' s case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting
Phillips v. CSX Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
Product Defect Claims
In South Carolina, "there are three defects a plaintiff in a products liability lawsuit can
allege: 1) a manufacturing defect, 2) a warning defect, and 3) a design defect." Watson v. Ford
Motor Co., 699 S.E.2d 169, 174 (S.C. 2010). "When a manufacturing defect claim is made, a
plaintiff alleges that a particular product was defectively manufactured." Id. "When a warning
defect claim is made, a plaintiff alleges that he was not adequately warned of dangers inherent to
a product." Id. A product liability action "may be brought under several theories, including
negligence, strict liability, and warranty. Bragg v. Hi-Ranger, Inc., 462 S.E.2d 321, 325 (S.C.
Ct. App. 1995). To prevail on a claim under any product liability theory, the plaintiff must
satisfy three elements: " (!) he was injured by the product; (2) the injury occurred because the
product was in a defective condition, unreasonably dangerous to the user; and (3) that the
product at the time of the accident was in essentially the same condition as when it left the hands
of the defendant. " Id. at 326 (citation omitted). Under a negligence theory, the plaintiff must
also prove that "the defendant (seller or manufacturer) failed to exercise due care in some
respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and
liability is determined according to fault. " Id. (citation omitted).
Further, there can be no design defect claim under any theory where a product is
"accompanied by adequate warnings that, if followed, make the product safe for use."
Hickerson, 2016 WL 4367141 , at *5 (citing Curcio v. Caterpillar, Inc., 543 S.E.2d 264, 268-69
(S.C. Ct. App. 2001). Plaintiff argues this rule applies only to strict liability claims and not to
negligence claims, but he is incorrect:
A product may, by reason of its nature and use, be unreasonably dangerous unless
proper instructions and warnings are supplied for its intended use. Many products
cannot be made completely safe for use. However, such products may be useful
and desirable. If they are properly prepared, manufactured, packaged and
accompanied with adequate warnings and instructions, they cannot be said to be
Claytor v. Gen. Motors Corp., 286 S.E.2d 129, 132 (S.C. 1982). But this rule does not make a
design defect claim impossible in the absence of a warning defect. The rule simply provides that
a product is not defectively designed merely because its safe use requires users to heed warnings.
Plaintiff contends that he was injured due to the unreasonably dangerous design of the
inversion table, which was not disclosed by adequate warnings. In granting summary judgment,
the Court ruled there was no evidence of a genuine dispute about whether Plaintiff was
adequately warned of the risks associated with use of the inversion table or whether the inversion
table is safe to use if the user heeds those warnings. The Court concluded that there was no
dispute that users were adequately warned of the need to ensure the ankle locking system was
properly secured or that, if the ankle locking system is properly secured, the table is safe for use.
The inversion table suspends a user upside-down (or nearly so) by holding his feet in an
ankle locking system. The ankle locking system is secured by a spring-loaded locking pin that
must be fully inserted into a hole on the instep frame . The parties agreed that the incident at
issue likely occurred because the locking pin was not situated in the hole and was likely
positioned between two holes.
As a result, the ankle locking system failed, resulting in
Plaintiff's injuries. The Court ruled that the ankle locking system failed because Plaintiff did not
comply with the instructions and warnings at the time of the Incident," because there is no
dispute that had Plaintiff effectively secured the ankle assembly, he would not have fallen. (See
Dkt. No. 121at15 .)
In support of his motion for reconsideration, Plaintiff argues that there is evidence the
inversion table warnings were insufficient and the design defective, pointing to the report of Dr.
Bryan Durig, Plaintiff's expert, Dr. Durig' s deposition testimony, the safety recall of the
inversion table, and an engineering report on the ankle locking system commissioned by
Defendant Dick' s Sporting Goods. After carefully reviewing the record evidence, the Court
must agree with Plaintiff. As noted above, it appears uncontested that had Plaintiff effectively
secured the ankle assembly, he would not have fallen. But summary judgment for Defendants
based on that fact was a clear error of law. The alleged defect is not that the table components
lack the tensile strength to hold a user in place. The alleged defect is that it is unreasonably
difficult for a user to ensure that the ankle locking system is secured properly and that, while the
need to secure the ankle system is adequately warned (see Dkt. No. 81-7 at 7), the difficulty
ensuring that it is secured is not adequately warned.
Plaintiff correctly argues there is record evidence indicating that it is unreasonably
difficult for a user to ensure that the ankle locking system is properly secured. Plaintiff testified
that he believed that he had properly secured ankle assembly, yet it failed. (Dkt. No. 81-8 at 16.)
To be sure, Plaintiff made arguably inconsistent statements to certain physicians, but Plaintiffs
credibility is for a jury to decide. Plaintiffs expert, Dr. Durig, opined and testified that it was
difficult to see, hear, or-feel whether the locking pin in fact has been inserted properly into a hole
on the instep frame. (Dkt. No. 92-2 at 7; Dkt. No. 81-10 at 10, 14, 15, 18.) He also testified that
the tolerance between the diameters of the locking pin and the instep frame holes was
excessively tight, which could make it difficult to insert the locking pin properly. (Dkt. No. 8110 at 9, 11.) In response to an earlier injury claim regarding the inversion table, Defendant
Dick's Sporting Goods engaged Mesa Associates, an engineering firm, to test the table's ankle
locking system. In a report dated October 31 , 2013 , Mesa Associates stated that "if the user
verifies that the small spring knob pin is engaged and tests the engagement in accordance with
the operating instructions the adjustable instep frame will support the user of the machine
without the risk of sudden failure" but "if the small spring knob pin is not completely engaged in
the adjustable instep frame, it is possible that . . . while inverted, the user could fall from the
machine." (Dkt. No . 90-8.) In October 2014, Defendant Dick's Sporting Goods recalled the
table at issue because "customers who do not properly lock themselves into the Inversion Tables
may be at risk of falling out of the units. " (Dkt. No. 81-25 at 5.)
At the hearing on the motion to reconsider, Defendants' counsel conceded there is a
genuine dispute of fact regarding the difficulty of ensuring that the ankle assembly is secured
properly, but argued the dispute is immaterial because it is "not impossible" for a user to ensure
the ankle assembly is secure. But that is not the standard for liability under any legal theory. For
liability in negligence, the standard is that the seller or manufacturer failed to exercise due care
in some respect and that the product is unreasonably dangerous. For strict liability, the standard
simply requires a product to be "unreasonably dangerous for its intended use." Bragg, 462
S.E.2d at 328. There are two tests to determine whether a product is unreasonably dangerous for
its intended use. "The first test is whether the product is unreasonably dangerous to the ordinary
consumer or user given the conditions and circumstances that foreseeabl y attend the use of the
Id. (citing Claytor, 286 S.E.2d at 131).
"Under the second test, a product is
unreasonably dangerous and defective if the danger associated with the use of the product
outweighs the utility of the product." Id.
Plaintiff has proffered ample evidence to support his contention that the inversion table is
unreasonably dangerous to the ordinary consumer in the conditions that foreseeably attend the
use of the table. The Court' s order of April 28, 2017 therefore committed a clear error of law
when holding that no genuine dispute of material fact exists in this case. The Court further notes
that order is inconsistent with the recent rulings of other courts that have considered virtually
For example, in Sahm v. STL International, Inc., the District of Oregon
considered a defense argument for summary judgment that is essentially identical to Defendants'
argument in this case:
Based on Plaintiffs testimony, Defendants argue as their first premise that it is
undisputed that the pin used in the ankle locking mechanism was correctly locked
in place before Plaintiff inverted. To this, Defendants add, as their second
premise, the testimony of their expert, which is unrebutted by Plaintiffs experts
on this point, that it is impossible for the ankle lock mechanism unexpectedly to
open or release if the pin is locked correctly in place. Thus, conclude Defendants,
Plaintiff has failed to show either causation or defective design.
The error in Defendants' reasoning is that their first premise is not supported, or
at least not compelled, by the evidence. Plaintiffs deposition testimony does not
prove, at least not beyond genuine dispute, that the pin used in the ankle locking
mechanism was correctly locked in place before Plaintiff fully inverted. All that
Plaintiffs testimony proves is that Plaintiff believed it was correctly locked in
place before he inverted. But that is not the same thing as proving that the pin
was in fact correctly locked in place. Indeed, in light of the unrebutted testimony
of Defendants' expert on this point, it would have been impossible for the pin to
have been correctly locked in place based on the fact that the ankle locking
mechanism unexpectedly opened, causing Plaintiff to fall. At summary judgment,
the Court must accept as true Plaintiffs testimony that he fell after the ankle
locking mechanism unexpectedly opened while he was fully inverted. There is
nothing in the record to show how this accident could have occurred but for the
pin not being fully and correctly locked in place, notwithstanding Plaintiffs
testimony that he believed that it was. Viewing the evidence in the light most
favorable to the non-moving party, as the Court must do at this stage of the
proceeding, the evidence simply shows that Plaintiff was mistaken.
No. 3:13-CV-0806-SI, 2015 WL 1825368, at *11 (D. Or. Apr. 22, 2015); see also Chong v STL
Int 'l, Inc., 152 F Supp 3d 1305 (D Ore. 2016). The Court therefore grants the motion to
reconsider as to Plaintiffs product defect claims.
Negligence Claims Related to Recall
The Court' s order of April 28, 2017 also granted summary judgment for Defendants as to
Plaintiff' s claim that Dick ' s Sporting Goods was negligent in failing to inform Plaintiff of its
voluntary recall of the inversion table. According to Plaintiff, "McRee' s claims [for negligence
regarding the recall] rest solely on the state law regarding duties voluntarily undertaken" but
the Court "failed to adequately address the primary issue of common law negligence for the
voluntarily assumed duty." (Dkt. No. 123-1 at 6.)
Plaintiff's argument for reconsideration with regard to the recall is without merit. As the
Court previously held, under South Carolina law, a duty arising from "an act ... voluntarily
undertaken" imposes liability when the "failure to exercise such care increases the risk of such
harm" or "the harm is suffered because of the other' s reliance upon the undertaking." Johnson v.
Robert E. Lee Acad. , Inc., 737 S.E.2d 512, 514 (S.C. Ct. App. 2012). Plaintiff did not rely on the
recall because he did not know about it. Clearly, the failure to notify Plaintiff of the recall did
not somehow render the inversion table more dangerous than it already was. There is no merit to
Plaintiff's contrary argument that the failure to notify did increase the risk to Plaintiff because he
would have then ceased using the inversion table. It is well established that to increase the risk
of harm in this context means that the partial or negligent performance of a voluntarily
undertaken duty actually increased the risk of harm over the risk existing had the defendant
never acted. See Restatement (Second) of Torts§ 323 (1965) (comments and reporter's notes).
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Plaintiff' s motion to reconsider (Dkt. No. 123). The Court VACATES parts IV.A ("Warning
Defect") and IV.B ("Design Defect") of the Court' s order of April 28, 2017 (Dkt. No. 121) and
DENIES Defendants' motion for summary judgment (Dkt. No. 81) as to warning and design
defect claims. The motion to reconsider is otherwise DENIED.
AND IT IS SO ORDERED.
Richard Mark Gergel
United States District Court Judge
November j__, 2017
Charleston, South Carolina
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