Johnson et al v. Walmart Stores East, LP et al (TV1)
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 6/20/13. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
BOBBY JOHNSON and TONI NELSON,
Plaintiffs,
v.
WAL-MART STORES EAST, LP, and
MTD, LLC,
Defendants.
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No.:
3:11-CV-469
(VARLAN/SHIRLEY)
MEMORANDUM OPINION
This civil action is before the Court on the Motion for Summary Judgment [Doc. 16]
filed by defendants MTD, LLC (“MTD”) and Wal-Mart Stores East, LP (“Wal-Mart”). The
defendants argue that summary judgment is appropriate in this products liability case because
plaintiffs cannot prove that the product at issue was defective or unreasonably dangerous as
required by the Tennessee Products Liability Act. Notably, the plaintiffs have not responded
to the pending motion and the time for doing so has passed. E.D. Tenn. L.R. 7.1(a), 7.2.
The defendants have filed a memorandum [Doc. 17] and a reply [Doc. 18] with
documentation and case law in support of the pending motion. The Court has carefully
considered the pending motion and related pleadings in light of the controlling law and the
entire record. For the reasons set forth herein, the defendants’ motion for summary judgment
[Doc. 16] will be GRANTED and this case will be DISMISSED.
I.
Relevant Facts
In 2010, plaintiff Bobby Johnson purchased a new Yard-Man lawn mower (or “lawn
tractor”), Model Series 760-110, from Wal-Mart [Doc. 1-1 at ¶ 6]. Defendant MTD
manufactures the Yard-Man lawn mower that was sold by Wal-Mart to the plaintiff [Id. at
¶ 7]. On June 1, 2010, plaintiff was operating the lawn mower when “[t]he gear slipped
causing [p]laintiff to lose control of [the] lawnmower” [Id. at ¶¶ 10–11]. Plaintiff was
thrown from the lawn mower causing him physical injury which required medical treatment
[Id. at ¶¶ 9, 11]. Subsequently, while in Mr. Johnson’s yard, plaintiff Toni Nelson was hit
by the lawn mower and also suffered physical injuries which required medical treatment [Id.
at ¶ 12].
Mr. Johnson testified that he has many years of experience operating riding lawn
mowers, but does not know how the shifter mechanism connects to the transmission [Doc.
17-1 at p. 8]. He testified that he did not know how the throttle links to the engine, but
assumed it was by a cable [Id. at p. 10]. Mr. Johnson did not know how the speed selector
control worked, but just “put it in one through six or one through seven, whatever it had” [Id.
at pp. 10–11]. Similarly, Ms. Nelson testified that she is also experienced in operating riding
lawn mowers, but she does not know how the transmission of a riding lawn mower would
operate or the mechanics of engaging the cutting blades on a riding lawn mower [Doc. 17-3
at p. 2]. She further testified that she does not know what needs to take place when the key
turns to start the engine [Id. at p. 3].
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According to the Affidavit of Daniel J. Martens, MTD’s Vice President of Product
Development and Safety, the lawn tractor at issue was designed by both mechanical and
electrical engineers [Doc. 17-2 at ¶¶ 2, 10]. The lawn tractor is a complex piece of
machinery with over one hundred component parts and multiple systems which all must
function as designed and intended [Id. at ¶ 11]. The lawn tractor’s individual component
parts and systems are repeatedly tested to ensure that it will function as designed and
intended [Id. at ¶ 12]. Further, the lawn tractor is designed and manufactured to ensure that
it will comply with the requirements of the ANSI B71.1-2003 safety standard [Id.].
II.
Procedural History
The case was removed to this Court from Grainger County Circuit Court on
September 29, 2011 [Doc. 1]. MTD served plaintiffs with a First Set of Interrogatories and
Requests for Production of Documents on September 10, 2012, to which plaintiffs have not
responded [Doc. 17-2 at ¶¶ 6, 8]. Plaintiffs have not made the initial disclosures required by
Fed. R. Civ. P. 26(a)(1) and the Court’s Scheduling Order [Doc. 5 at ¶ 3(c), Doc. 17-2 at ¶
7]. Plaintiffs also have not made the expert disclosures required by Fed. R. Civ. P. 26(a)(2)
and the Court’s Scheduling Order [Doc. 5 at ¶ 3(e), Doc. 17-2 at ¶ 9]. As initially noted,
plaintiffs have failed to respond to the pending motion for summary judgment and the time
for doing so has expired. E.D. Tenn. L.R. 7.1(a). In short, it appears from this record that
the plaintiffs have taken no action to prosecute their case since the filing of the complaint.
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III.
Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper
“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). The moving party bears
the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Moore v. Phillip Morris Cos., 8 F.3d 335, 339 (6th Cir.
1993). All facts and all inferences to be drawn therefrom must be viewed in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). “Once the
moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving
party is not entitled to a trial merely on the basis of allegations.” Curtis Through Curtis v.
Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S.
at 324). To establish a genuine issue as to the existence of a particular element, the nonmoving party must point to evidence in the record upon which a reasonable finder of fact
could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
genuine issue must also be material; that is, it must involve facts that might affect the
outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper question
for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the evidence or
determine the truth of the matter. Id. at 249. Nor does the Court search the record “to
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establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479-80 (6th Cir. 1989). Thus, “the inquiry performed is the threshold
inquiry of determining whether there is a need for a trial—whether, in other words, there are
any genuine factual issues that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250.
The plaintiffs’ failure to respond to defendants’ motion for summary judgment is not
determinative of whether summary judgment is appropriate. Aquent, LLC v. United States,
2011 WL 1397105 at *1 (E.D. Mich. Apr. 13, 2011) (discussing the former version of Rule
56 and noting that “the non-movant’s failure to respond does not relieve the movant of its
burden to establish that ‘the moving party is entitled to judgment as a matter of law’”);
Antczak v. Ashland Distrib. Co., 2011 WL 6887720 at *2–3 (E.D. Tenn. Dec. 29, 2011).
Relevant to a party’s failure to respond is Rule 56(e), which provides:
(e) If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule
56(c), the court may:
...
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the
movant is entitled to it[.]
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Fed. R. Civ. P. 56(e)(2); 56(e)(3).1 Accordingly, the Court has examined the motion and
supporting materials to determine if summary judgment is appropriate.
IV.
Analysis
The bare allegations of the plaintiffs’ complaint assert that this is a products liability
action for a “defective product” arising from a slipped gear on plaintiff’s lawn mower.2 Such
actions are governed by the Tennessee Products Liability Act (“TPLA”), Tenn. Code Ann.
§§ 29-28-101, et seq.3 In order to recover on a products liability action, plaintiffs must prove
that the product allegedly manufactured or supplied by defendants was “in a defective
condition or unreasonably dangerous at the time it left the control of the manufacturer or
seller.” Johnson v. Volvo Truck Corp., 2010 WL 55317 at *2(E.D. Tenn. Jan. 4, 2010)
(quoting Tenn. Code Ann. § 29-28-105(a)).
1
The Advisory Committee Notes for the 2010 amendments indicate that the Rule was revised
to preclude summary judgment from being granted by default, even “if there is a complete failure
to respond to the motion.” Fed. R. Civ. P. 56 advisory committee’s note (discussing when a party
fails to properly address another party’s assertion of fact as required by 56(c)).
2
The introductory paragraph of plaintiffs’ complaint also claims the action is for “breach of
contract” [Doc. 1-1]. However, there are no factual or legal allegations in the complaint which
would support a claim for breach of contract. In the absence of any response or evidence supplied
by the plaintiffs, the Court finds that no breach of contract claim has been asserted.
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The TPLA defines “[p]roduct liability action” to include “all actions brought for or on
account of personal injury, death or property damage caused by or resulting from the manufacture,
construction, design, formula, preparation, assembly, testing, service, warning, instruction,
marketing, packaging or labeling of any product.” Tenn. Code Ann. § 29-28-102(6). In addition,
the TPLA states that a “‘[p]roducts liability action’ includes, but is not limited to, all actions based
upon the following theories: strict liability in tort; negligence; breach of warranty, express or
implied; breach of or failure to discharge a duty to warn or instruct, whether negligent, or innocent;
misrepresentation, concealment, or nondisclosure, whether negligent, or innocent; or under any other
substantive legal theory in tort or contract whatsoever[.]” Id.
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A.
Defective Condition
The TPLA defines a “defective” condition as “a condition of a product that renders
it unsafe for normal or anticipatable handling and consumption.” Tenn. Code Ann. § 29-28102(2). “[T]he failure or malfunction of the device, without more, will not make the
defendant liable. A plaintiff must show that there was something wrong with the product,
and trace the plaintiff’s injury to the specific defect.” King v. Danek Med., Inc., 37 S.W.3d
429, 435 (Tenn. Ct. App. 2000) (citations omitted); Whaley v. Rheem Mfg. Co., 900 S.W.2d
296, 299-300 (Tenn. Ct. App. 1995) (quoting Browder v. Pettigrew, 541 S.W.2d 402, 406
(Tenn. 1976) (the mere fact that an accident occurred is not sufficient to prove a defect);
Bradley v. Danek Med., Inc., 1999 WL 1866401 at *7 (W.D. Tenn. Mar. 29, 1999) (“Thus,
regardless of the theory, the plaintiff must show that something is wrong with a product that
makes it defective or unreasonably dangerous.”). “Moreover, the fact that plaintiff was
injured is not proof of defect.” Bradley, 1999 WL 1866401 at *7; Maness v. Boston
Scientific, 751 F. Supp. 2d 962, 969 (E.D. Tenn. 2010) (finding that the plaintiff’s allegations
that he suffered an injury from a device does not, without more, show that the device was
defective).
“A defect in a product may be proven by direct evidence, circumstantial evidence, or
a combination of both.” Whaley, 900 S.W.2d at 299-300 (citing Browder, 541 S.W.2d at
405). Thus, in addition to evidence of an injury caused by the product, a plaintiff must
produce “additional circumstantial evidence, such as proof of proper use, handling or
operation of the product and the nature of the malfunction” or “the testimony of an expert
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who has examined the product or who offers an opinion on the products [sic] design.” Id.
(citing Browder, 541 S.W.2d at 406). As noted in Whaley, expert testimony is necessary to
demonstrate a defect in a piece of machinery because such knowledge is beyond the common
knowledge of laymen. Id. at 301.
“The burden is on the plaintiff to identify a defect in the product.” Langford v.
Gatlinburg Real Estate & Rental, Inc., 499 F. Supp.2d 1042, 1051 (E.D. Tenn. 2007). Here,
the plaintiffs have presented no evidence, direct, circumstantial or expert, that the Yard-Man
lawn mower was unsafe for normal or anticipatable handling and consumption. In the face
of the defendants’ motion, the plaintiffs have only the bare allegation of their complaint that
the product was defective and Mr. Johnson’s testimony that the lawn mower “wouldn’t go
in gear” [Doc. 17-1 at p. 5]. This minimal testimony of a failure or malfunction of the lawn
mower is insufficient, without more, to show that the product was defective. Even accepting
the plaintiffs’ testimony that they both were experienced in operating riding lawn mowers,
their testimony does not qualify as expert testimony as neither plaintiff could explain the
tractor’s inner workings or mechanisms. See Fed. R. Evid. 702. Thus, the plaintiffs have not
met their burden to show that the product was defective.
B.
Unreasonably Dangerous
The TPLA defines “unreasonably dangerous” as a product
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, or that the product because of its dangerous
condition would not be put on the market by a reasonably
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prudent manufacturer or seller, assuming that the manufacturer
or seller knew of its dangerous condition.
Tenn. Code Ann. § 29-28-102(8). Under the TPLA, there are two tests for determining
whether a product is unreasonably dangerous. See id. § 29-28-102(8). The “consumer
expectation test” requires a showing that “the product’s performance was below reasonable
minimum safety expectations of the ordinary consumer having ordinary, ‘common’
knowledge as to its characteristics.” Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 806
(Tenn. 2001). Under the “prudent-manufacturer test,” the Court “imputes knowledge of the
dangerous condition to the manufacturer, and then asks whether, given that knowledge, a
prudent manufacturer would market the product.” Maness v. Boston Scientific, 751 F.
Supp.2d 962, 968 (E.D. Tenn. 2010). A plaintiff cannot prove that a product is unreasonably
dangerous under the prudent manufacturer test without expert testimony. Brown v. The
Raymond Corp., 432 F.3d 640, 644 (6th Cir. 2005); Johnson v. Manitowoc Boom Trucks,
Inc., 406 F. Supp.2d 852, 857 (M.D. Tenn. 2005), aff’d 484 F.3d 426, 429 (6th Cir. 2007).
MTD argues that plaintiffs cannot rely upon the consumer expectation test in this case
because the test does not apply to highly complex products, such as the lawn mower at issue,
about which an ordinary consumer would not have knowledge. See Brown, 432 F.3d at 644
(“the prudent manufacturer test will often be the only appropriate means for establishing the
unreasonable dangerousness of a complex product about which an ordinary consumer has no
reasonable expectation”) (quoting Ray by Holman v. BIC Corp., 925 S.W.2d 527, 531 (Tenn.
1996)); Strayhorn v. Wyeth Pharms., Inc., 887 F. Supp. 2d 799, 821 (W.D. Tenn. 2012) (the
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consumer expectation test “can only be applied to products about which an ordinary
consumer would have knowledge”) (also quoting Ray, 925 S.W.2d at 531); Coffee v. Dowley
Mfg., Inc., 187 F. Supp.2d 958, 968 (M.D. Tenn. 2002) (same). MTD relies on Mr. Martens’
unrebutted testimony that the lawn mower at issue was designed by mechanical and electrical
engineers and that the mower contains over one hundred component parts and multiple
systems which must all function as designed and intended [Doc. 17-2 at ¶¶ 10–11]. Thus,
based on the plaintiffs’ testimony that they could not explain the mechanical functions of the
lawn mower, MTD contends the mower is a complex product about which an ordinary
consumer would not have knowledge [Doc. 17 at pp. 7–9]. Further, because plaintiffs have
failed to offer any expert testimony or opinion as to the lawn mower’s condition, MTD
argues that they cannot prevail under the prudent manufacturer test [Id. at pp. 9–11].
After reviewing the record in the light most favorable to the plaintiffs, the Court finds
that the plaintiffs cannot prevail under either theory. Plaintiffs have presented no proof of
any kind in support of their claims and have failed to respond to the pending motion. The
plaintiffs’ complaint, even if accepted as true for purposes of summary judgment, consists
of bare allegations which are not acceptable proof under Rule 56. Mere notice pleading is
not sufficient to defeat a well-pled summary judgment motion. See Garth v. Univ. of Ky.
Med. Ctr., 1992 WL 133050 at *1 (6th Cir. June 16, 1992) (“To survive a motion for
summary judgment, [the plaintiff] was required to do more than rest on her pleadings; she
was required to demonstrate that a genuine issue for trial existed.”) (citing Anderson, 477
U.S. at 248-49). There is simply no proof that the lawn mower’s performance was below the
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reasonable minimum safety expectations of an ordinary consumer having ordinary,
‘common’ knowledge as to its characteristics or that, if given knowledge of the mower’s
allegedly dangerous condition, a prudent manufacturer would not market the product. The
plaintiffs have not presented any of the proof required to support a products liability claim
under the TPLA. Accordingly, the Court finds that the defendants are entitled to summary
judgment and the motion will be GRANTED.
V.
Conclusion
For the reasons set forth herein, the defendants’ motion for summary judgment [Doc.
16] will be GRANTED and this case will be DISMISSED. An appropriate order will be
entered.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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