Harris v. Ross Stores, Inc et al

Filing 131

MEMORANDUM OPINION AND ORDER. ORDERED that Blumenthal's Motion for Summary Judgment (Dkt. #66) and Supplement (Dkt. #81) thereto are hereby DENIED in part. Signed by District Judge Amos L. Mazzant, III on 7/24/2018. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ARRON HARRIS
v.
ROSS STORES, INC., BLUMENTHAL
DISTRIBUTING, INC., BAFANG
FURNITURE CO., INC., and UNKNOWN
DISTRIBUTION COMPANY

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Civil Action No. 4:17-CV-00237
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Blumenthal Distributing, Inc.’s (“Blumenthal”)
Motion for Summary Judgment (Dkt. #66) and Supplement (Dkt. #81) thereto. After reviewing
the relevant pleadings and motion, the Court finds that the motion should be denied in part.
BACKGROUND
On or about September 14, 2015, Plaintiff visited a Defendant Ross Store, Inc. (“Ross”)
retail store and sat in a chair allegedly manufactured and distributed by Blumenthal to be sold in
the Ross store.1 While sitting in the chair, the chair broke causing Plaintiff to fall to the floor and
sustain alleged injuries. As a result, on January 27, 2017, Plaintiff filed suit in state court against
Ross and Blumenthal. On April 7, 2017, Ross removed the case to federal court.
On August 23, 2017, Plaintiff filed his Second Amended Complaint (Dkt. #37) adding RPI,
Bafang, and UDC as Defendants. Additionally, in his Second Amended Complaint Plaintiff
asserted, in pertinent part, claims against Blumenthal for negligence and manufacturing defect

Alternatively, Plaintiff alleges that Bafang Furniture Co, Inc. (“Bafang”) manufactured the chair and Ross
Procurement, Inc. (“RPI”) purchased the chair from an unknown distribution company (“UDC”) and delivered the
chair to the subject Ross store.
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(Dkt. #37). On February 14, 2018, Blumenthal filed its motion for summary judgment requesting
the Court dismiss such claims because Blumenthal did not distribute the chair at issue and the chair
did not contain a manufacturing defect (Dkt. #66). Subsequently, the Court granted Plaintiff leave
to file a Third Amended Complaint (Dkt. #74), which added, in pertinent part, a claim for failure
to warn2 (Dtk. #54, Exhibit 1). Because the Court granted such leave, the Court allowed
Blumenthal the ability to supplement its motion for summary judgment. As a result, on May 4,
2018, Blumenthal filed its Supplement to Motion for Summary Judgment (Dkt. #81) where it
argued that Plaintiff’s failure to warn claim warranted dismissal. On May 25, 2018, Plaintiff filed
its response to both Blumenthal’s Motion for Summary Judgment and Supplement (Dkt. #95). On
June 1, 2018, Blumenthal filed its reply (Dkt. #100).
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported claims
or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment is proper
under Rule 56(a) of the Federal Rules of Civil Procedure “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). A dispute about a material fact is genuine when “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id. The trial court
“must resolve all reasonable doubts in favor of the party opposing the motion for summary
judgment.” Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).
The party seeking summary judgment bears the initial burden of informing the court of its
motion and identifying “depositions, documents, electronically stored information, affidavits or

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A failure to warn claim may also be referred to as a marketing defect claim.

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declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of
material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden
of proof on a claim or defense for which it is moving for summary judgment, it must come forward
with evidence that establishes “beyond peradventure all of the essential elements of the claim or
defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant
bears the burden of proof, the movant may discharge the burden by showing that there is an absence
of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning
News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the
nonmovant must “respond to the motion for summary judgment by setting forth particular facts
indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at
248–49). A nonmovant must present affirmative evidence to defeat a properly supported motion
for summary judgment. Anderson, 477 U.S. at 257. Mere denials of material facts, unsworn
allegations, or arguments and assertions in briefs or legal memoranda will not suffice to carry this
burden. Rather, the Court requires “significant probative evidence” from the nonmovant to dismiss
a request for summary judgment. In re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436, 440
(5th Cir. 1982) (quoting Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)). The
Court must consider all of the evidence but “refrain from making any credibility determinations or
weighing the evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2007).
ANALYSIS
Blumenthal avers that Plaintiff’s negligence, manufacturing defect, and failure to warn
claims warrant dismissal (Dkt. #66; Dkt. #81). Further, Blumenthal claims that it is entitled to its

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attorney’s fees in defending this suit (Dkt. #66; Dkt. #81). Plaintiff responds that a genuine issue
of material fact exists as to its negligence and failure to warn claims3 (Dkt. #95). Further, Plaintiff
responds that Blumenthal is not entitled to attorney’s fees (Dkt. #95). The Court addresses
Plaintiff’s negligence claim, failure to warn claim, and Blumenthal’s request for attorney’s fees in
turn.
I.

Plaintiff’s Negligence Claim
Blumenthal avers that Plaintiff’s negligence claim warrants dismissal because Blumenthal

did not distribute the chair in question and therefore, Blumenthal did not owe a duty to Plaintiff.
Plaintiff responds that such argument fails because Blumenthal relies on conclusory and
inadmissible evidence. In other words, Plaintiff contends that Blumenthal did not clearly establish
that it did not distribute the chair at issue.
The party seeking summary judgment bears the initial burden of informing the Court of its
motion and identifying “depositions, documents . . . affidavits or declarations” that demonstrate
the absence of a genuine issue of material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at
323. Conclusory allegations and denials along with unsubstantiated assertions are insufficient
summary judgment evidence. See TGI Ins. Co. v. Sedgwick James of Wash., 276 F.3d 755, 759
(5th Cir. 2002). Pursuant to Texas law, to succeed on a claim for negligence, a plaintiff must
establish “(1) a legal duty on the part of the defendant; (2) breach of that duty; and (3) damages
proximately resulting from that breach.” Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008)
(quoting Sport Supply Group, Inc. v. Columbia Cas. Co., 335 F.3d 453, 466 (5th Cir. 2003)).
In his deposition, Plaintiff describes the chair he sat on as “grayish” in color (Dkt. #66,
Exhibit 5 at p. 5). Based on a picture of the chair, Blumenthal characterizes it as “dark olive green

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Plaintiff no longer contends that Blumenthal is a manufacturer or liable for any alleged manufacturing defect
(Dkt. #95 at pp. 3–4).

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or grayish in color.” (Dkt. #66 at p. 6). A purchase order states that Blumenthal distributed
“Tan-Beige-Fawn” colored chairs to Ross (Dkt #66, Exhibit 4). Based on the alleged differences
in color, Blumenthal contends that it never distributed the chair and therefore, did not owe Plaintiff
a duty.4
The Court finds that Blumenthal failed to meet its initial burden of demonstrating the
absence of a genuine issue of material fact. Based on the photograph of the subject chair, the Court
finds a fact issue exists as to whether the chair is a “Tan-Beige-Fawn,” “dark olive green,” or
“grayish” color. The Court declines to rule as a matter of law that Blumenthal did not distribute
the chair based on whether it is one obscure and indistinct color or another. Such a determination
is better left for a jury. As such, the Court finds that Blumenthal’s motion as it relates to Plaintiff’s
negligence claim should be denied.
II.

Plaintiff’s Failure to Warn/Marketing Defect Claim
Blumenthal argues that Plaintiff’s failure to warn claim fails for four reasons:

(1) “Blumenthal had no duty to warn of the risk of collapse of a chair from extreme amounts of
weight, because the risk is open and obvious, and common knowledge;” (2) “[t]here is no evidence
that the Chair had a marketing defect;” (3) “[a] lack of a maximum weight capacity label on the
Chair does not render it unreasonably dangerous;” and (4) “[t]he alleged lack of warning did not
cause Plaintiff’s injuries, because Plaintiff nevertheless would have ignored any adequate warning
if there was one on the Chair.” (Dkt. #81 at p. 10). Plaintiff responds that genuine issues of

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Blumenthal additionally relies on the affidavit of Fred Rueda, Executive Vice President of Blumenthal, which states
that “Blumenthal never distributed the Chair in this photo” or “any similar chairs in this olive green/grayish color.”
(Dkt. #66, Exhibit 8 at p.2). Further, according to Rueda, the “‘Tan-Beige-Fawn’ listed on the purchase order does
no[t] match the color of the Chair in the photo.” (Dkt. #66, Exhibit 8 at p. 2). Because such statements are conclusory
and unsubstantiated, the Court declines to consider Rueda’s affidavit as proper summary judgment evidence. See TGI,
276 F.3d at 759.

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material fact exists regarding the duty, breach, and causation elements of his failure to warn claim.
The Court addresses each argument in turn.
Blumenthal claims that there is no duty to warn of overloading because such a risk is open
and obvious. Specifically, Blumenthal avers that “Plaintiff’s extremely excess weight, combined
with day-to-day life experiences that not all seating surfaces can accommodate a person of such
excessive weight, should suffice as a warning to be cautious and selective on the type of seating
surface one chooses to sit on.” (Dkt. #81 at p. 6). Stated differently, “[i]t is open and obvious to
anyone who observes an accent chair that excess weight could cause it to collapse and break.”
(Dkt. #81 at p. 6). Plaintiff avers that insufficient evidence exists to find that such a risk is open
and obvious as a matter of law (Dkt. #95 at pp. 12–14).
“A defendant’s failure to warn of a product’s potential dangers when warnings are required
is a type of marketing defect.” Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 (Tex. 1997).
“A marketing defect occurs when a defendant knows or should know of a potential risk of harm
presented by the product but markets it without adequately warning of the danger or providing
instructions for safe use.” Keene v. Sturm, Ruger, & Co., Inc., 121 F. Supp. 2d 1063, 1069 (E.D.
Tex. 2000). A marketing defect claim consists of five elements:
(1) a risk of harm that is inherent in the product or that may arise from the intended
or reasonably anticipated use of the product must exist; (2) the product supplier
must actually know or reasonably foresee the risk of harm at the time the product
is marketed; (3) the product must possess a marketing defect; (4) the absence of the
warning and/or instructions must render the product unreasonably dangerous to the
ultimate user or consumer of the product; and (5) the failure to warn and/or instruct
must constitute a causative nexus in the product user’s injury.
Id. A threshold requirement of a failure to warn/marketing claim is a duty to warn. Id. Such a
duty ceases to exist “when a product’s risks are within the ordinary common knowledge of the
community” or the risk is obvious. Painter v. Momentum Energy Corp., 271 S.W.3d 388, 410

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(Tex. App.—El Paso 2008, pet. denied). In other words, “there is only a duty to warn or instruct
concerning risks of which the consumer is unware.” Id. at 411 (citing Caterpillar Inc. v. Shears,
911 S.W.2d 379, 382 (Tex. 1995)). “The consumer’s perspective is that of an ordinary user of the
product, not necessarily the same as that of an ordinary person unfamiliar with the product.”
Sauder Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349, 351 (Tex. 1998). “The existence of a
duty to warn of dangers or instruct as to the proper use of a product is a question of law.” Keene,
121 F. Supp. 2d at 1069. “Likewise, ‘[w]hether a danger is open and obvious as a matter of law
is an objective question for the court to determine.’” Painter, 271 S.W.3d at 411 (quoting Lozano
v. H.D. Indus., Inc., 953 S.W.2d 304, 314 (Tex. App.—El Paso 1997, no pet.)).
Blumenthal asserts that “[t]he risk of collapse due to overload is well known to the
community as to be beyond dispute.” (Dkt. #81 at pp. 6–7). Plaintiff responds that such a finding
is unsupported by dispositive case law and that Plaintiff did not notice any obvious defect in the
chair.5 The Court cannot find, and neither party cites to, case law in the marketing defect context
where a court decided whether a risk that a chair may collapse under an excessive amount of weight
is open and obvious. The Court recognizes that the broad generalization that “overloading a chair
will cause it to collapse” may be common knowledge in certain circumstances. However, what
constitutes “overloading” is dependent upon the facts of each case, i.e. the weight of the individual
and/or the construction, age, and material of the chair. As such, although the broad concept that

Plaintiff, in an affidavit attached to his response (Dkt. #95, Exhibit 2), states that he “looked at the chair before he
sat in it” and “did not see any chipping in the wood, any missing pieces to the chair or anything that would have given
[him] any concern for sitting in the chair.” (Dtk. #95, Exhibit 2 at ¶¶ 4–5). Blumenthal argues that Plaintiff’s affidavit
constitutes a “sham affidavit” because it contradicts Plaintiff’s earlier deposition testimony where Plaintiff represented
that prior to sitting in the chair he did not inspect it. See (Dkt. #81, Exhibit 3 at p. 8). As such, the Blumenthal requests
that the Court strike Plaintiff’s affidavit. “Under the ‘sham affidavit rule,’ a party cannot defeat a motion for summary
judgment by submitting an affidavit which directly contradicts, without explanation, his prior testimony.” Hovanas
v. Am. Eagle Airlines, Inc., No. 3:09-CV-0209-B, 2010 WL 1993271, at *2 (N.D. Tex. May 18, 2010) (citing Albertson
v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984)). The Court finds that Plaintiff’s affidavit, without
explanation, contradicts prior testimony. As a result, the Court strikes such statements and does not consider them in
its analysis.
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too much weight can cause a chair to break seems open and obvious, whether an individual should
realize that his or her weight may cause a chair to collapse is dependent on the facts surrounding
the situation. As explained earlier, it is for the Court to determine whether a duty to warn exists
and whether a risk is open and obvious. Here, the Court finds it appropriate to defer ruling on
these questions until a jury decides the facts surrounding the incident in question. Accordingly,
the Court declines to make a ruling on the existence of a duty to warn, if any, and whether any risk
was open and obvious until the conclusion of the trial.
Regarding Blumenthal’s additional arguments, the Court is not convinced that Blumenthal
has met its burden demonstrating that there is no material issue of fact entitling it to judgment as
a matter of law. As such, the Court finds that Blumenthal’s motion as it relates to Plaintiff’s failure
to warn claim should be denied.
III.

Request for Attorney’s Fees
Blumenthal makes two requests for attorney’s fees. The first is in its motion for summary

judgment where it states that it is “entitled to attorney fees in the amount of $70,000 as a matter of
law.” (Dkt. #66 at p. 7). The second is in its reply where it claims an award of such fees is justified
pursuant to Federal Rule of Civil Procedure 56(h) (Dkt. #100 at p. 10). Regarding the former,
Blumenthal omits any reference, whether in its briefing or attached affidavits, as to what law
supposedly entitles it to an award of attorney’s fees. Instead, Blumenthal merely asserts that fees
totaling $70,000 are reasonable for the services performed. As such, the Court declines to award
attorney’s fees without reference to any legal authority to do so.
Concerning the latter, Blumenthal relies on Rule 56(h), which states, in pertinent part, that
if an affidavit “is submitted in bad faith or solely for delay, the court—after notice and a reasonable
time to respond—may order the submitting party to pay the other party the reasonable expenses,

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including attorney’s fees, it incurred as a result.” FED. R. CIV. P. 56(h). As discussed in footnote
five, the Court struck portions of Plaintiff’s affidavit due to its contradictions with Plaintiff’s prior
testimony. Although the Court made such a finding, the Court declines to rule that Plaintiff
submitted such affidavit in bad faith or solely for delay. As such, the Court denies Blumenthal’s
second request for attorney’s fees.
CONCLUSION
It is therefore ORDERED that Blumenthal’s Motion for Summary Judgment (Dkt. #66)
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and Supplement (Dkt. #81) thereto are hereby DENIED in part. Specifically, the Blumenthal’s
motion is denied in its entirety except as it relates to the existence of a duty to warn, if any, and
whether any risk is open and obvious. The Court defers ruling on such issues until the conclusion
of trial.
SIGNED this 24th day of July, 2018.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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