Mack v. Deere & Company et al
Filing
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MEMORANDUM AND ORDER granting 17 MOTION for Summary Judgment of Defendant Deere & Company and Shoppa's Farm Supply, Inc. (incorrectly suded as Shoppas Farm Supply a/k/a Shoppas ALC LLC) (Signed by Judge Gregg Costa) Parties notified.(ccarnew, 3)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ABE MACK, JR,
Plaintiff,
VS.
DEERE & COMPANY, et al,
Defendants.
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CIVIL ACTION NO. 3:12-CV-00296
MEMORANDUM AND ORDER
Plaintiff Abe Mack seeks to hold Defendants liable for back pain he
attributes to his John Deere Z425 Ztrak lawnmower.
Mack alleges that he
experienced sudden back pain while using the lawnmower in July 2010 and has
suffered from various back problems since. He alleges product defect, negligence,
and breach of warranty claims against Defendants Deere & Company, the
manufacturer, and Shoppa’s Farm Supply, the retailer who sold the mower.
Defendants filed a motion for summary judgment seeking dismissal of all of
Mack’s claims. Despite multiple deadline extensions, including one granted sua
sponte by the Court, Mack has failed to file a response. Based on the evidentiary
record before the Court, Defendants’ Motion for Summary Judgment (Docket
Entry No. 17) is GRANTED.
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I.
BACKGROUND
Mack, who is 78 years old, bought the John Deere Z425 Ztrak mower from
Shoppa’s in May 2009. Shoppa’s subsequently replaced the mower’s arm rest and
performed routine maintenance on the mower. Mack’s complaint alleges that in
July 2010, while using the mower “for the purpose and in the manner for which it
was intended to be used,” Mack “suddenly experienced severe back pain.” Docket
Entry No. 1-2 at 14–15 (Pl. First Am. Original Pet.). He has continued to suffer
from “sciatica pain, lumbar radiculopathy, L3-4 disk bulge, L5-S 1 disk bulge, disk
extrusion and nerve impingement.” Id. at 5. He seeks $350,000 in damages for
medical expenses, pain and suffering, physical impairment, loss of earnings, and
mental anguish. Id. at 19–20.
Mack’s complaint alleges that his back injuries resulted from the “negligent
and faulty manufacture and design and marketing” of the mower. Id. at 15. In
particular, he claims that the mower was defective and unsafe because it lacked “a
suitable suspension system . . . to absorb and transfer the impact forces around the
operator” and it “was designed and manufactured without providing a seat and
riding compartment . . . so as to protect the operator from bodily injury as suffered
by the Plaintiff. Id. He also generally alleges breach of express and implied
warranties and negligent design claims against Defendants.
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Mack filed this products liability lawsuit in Texas state court in July 2012,
and Defendants removed it to federal court in October 2012 based on diversity
jurisdiction.1
28 U.S.C. §1332(a); Docket Entry No. 1 at 1–2.
Despite the
technical nature of his product defect and injury claims, Mack did not designate
experts by his deadline or even to this day.
On August 9, 2013, Defendants filed their motion for summary judgment.
Docket Entry No. 17. Mack missed the original response deadline, but defense
counsel then discovered that Mack’s counsel was not signed up for electronic
notification (as the Southern District of Texas requires) and mailed a certified copy
of the motion on September 5. See Docket Entry No. 18. The Court then allowed
Mack the normal 21-day response time tied to the date on which the motion was
served the old-fashioned way, but he again failed to respond. After this second
missed deadline, the Court sua sponte notified the office of Mack’s counsel that it
would extend the response deadline a final time to October 11. See Oct. 15, 2013
Docket Entry. Almost a month has passed since that date, and Mack has still not
filed a response. In light of this failure to take advantage of the Court granting
1
Defendant’s argued in the notice of removal that although Shoppa’s is a Texas resident, it was
improperly joined. Plaintiff never disputed that, effectively conceding that there is no viable
claim against Shoppa’s given the improper joinder standard requiring “that there [be] no
reasonable basis for the district court to predict that the plaintiff might be able to recover against
an in-state defendant.” Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004)
(en banc).
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more continuances than grace requires, the Court now considers Defendants’
Motion for Summary Judgment without a response.
II.
DISCUSSION
A. Standard of Review
When a party moves for summary judgment, the reviewing court shall grant
the motion “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). After the moving party has met its initial burden, the burden shifts to the
non movant to establish the existence of a genuine issue for trial. See Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Wise v.
E.I. DuPont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). A dispute about
a material fact is genuine “if 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). All reasonable doubts on questions of fact must be resolved
in favor of the party opposing summary judgment. See Evans v. City of Houston,
246 F.3d 344, 348 (5th Cir. 2001) (citation omitted).
A court may not grant summary judgment simply because a nonmovant fails
to respond, but the court may decide the merits of the case based on a defendant's
motion and supporting evidence. See Parish v. Werner Co., 2006 WL 734418, at
*1 (S.D. Tex. Mar. 20, 2006); Eversley v. MBank Dallas, 843 F.2d 172, 173–74
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(5th Cir. 1988) (affirming the district court’s acceptance of the facts in the
defendant’s motion for summary judgment as undisputed when the nonmovant
failed to submit a response).
B. Shoppa’s Nonmanufacturing Seller Defense
Texas law “provides blanket protection for nonmanufacturing sellers of
products from liability for injuries caused by a defective product unless one of the
specified exceptions appl[ies].” Garcia v. LG Electronics USA Inc., 2011 WL
2517141, at *2 (S.D. Tex. June 23, 2011); see Tex. Civ. Prac. & Rem. Code Ann.
§ 82.003(a)(1)–(7) (West 2013). The plaintiff has the burden of proving that one
of the exceptions to this “blanket protection” applies. See § 82.003(a) (“A seller
that did not manufacture a product is not liable for harm caused to the claimant by
that product unless the claimant proves [one of the seven exceptions.]”) (emphasis
added); Gonzalez v. Estes, Inc., 2010 WL 610778, at *4 (W.D. Tex. Feb. 19,
2010). The exceptions include situations in which the seller participated in the
design of the product, exercised substantial control over the content of an
inadequate warning that caused the harm, or had actual knowledge of a product
defect. See Tex. Civ. Prac. & Rem. Code Ann. § 82.003(a)(1), (4) and (6).
All of Mack’s claims against Shoppa’s arise from alleged defects in the
original mower rather than anything arising from the arm rest Shoppa’s replaced or
the routine maintenance it performed.
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Mack has not offered evidence that a
specific statutory exception applies or even alleged the applicability of an
exception in his complaint. Accordingly, summary judgment is appropriate for all
claims against Shoppa’s as a nonmanufacturing seller.
C. Product Defect Claims
Mack asserts strict liability claims based on three alleged product defects:
design defect, manufacturing defect, and marketing defect.
i. Design Defect
Under Texas law, a plaintiff asserting a design defect claim must establish
that: (1) the product was unreasonably dangerous because of its defective design;
(2) there was a safer alternative design; and (3) the defect was a producing cause of
the plaintiff’s injuries. Tex. Civ. Prac. & Rem. Code Ann. § 82.005 (West 2013);
Restatement (Second) of Torts § 402A; Flock v. Scripto-Tokai Corp., 319 F.3d
231, 236 (5th Cir. 2003). “[A] specific defect must be identified by competent
evidence and other possible causes must be ruled out.” Nissan Motor Co. Ltd. v.
Armstrong, 145 S.W.3d 131, 137 (Tex. 2004). Furthermore, “[t]he mere fact that
an accident occurred is not sufficient proof that the [product] was defective.” Romo
v. Ford Motor Co., 798 F.Supp.2d 798, 809 (S.D. Tex. 2011) (quoting Hernandez
v. Nissan Motor Corp. in U.S.A., 740 S.W.2d 894, 895 (Tex.App.—El Paso 1987,
writ denied)).
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Mack has not proposed any safer alternative designs nor submitted evidence
to establish that any design defect caused his back injuries. Therefore, Defendants
are entitled to summary judgment on the design defect claims.
ii. Manufacturing Defect
A manufacturing defect exists when a “product deviates, in its construction
or quality, from the specifications or planned output in a manner that renders it
unreasonably dangerous.” Purcel v. Advanced Bionics Corp., 2010 WL 2679988,
at *8 (N.D. Tex. June 30, 2010) (quoting BIC Pen Corp. v. Carter, 251 S.W.3d
500, 509 (Tex. 2008)). The mere fact that a product failed is insufficient to
establish a manufacturing defect. Cooper Tire & Rubber Co. v. Mendez, 204
S.W.3d 797, 807 (Tex. 2006).
Mack has not produced any evidence that the lawnmower he used deviated
in the terms of its quality or construction from the manufacturer’s specifications in
a way that rendered it unreasonably dangerous. Therefore, summary judgment is
also warranted on the manufacturing defect claim.
iii. Marketing Defect
“A product may be unreasonably dangerous if a manufacturer fails to warn
of a foreseeable risk arising from the use of the product, and the lack of adequate
warnings or instructions renders an otherwise adequate product unreasonably
dangerous.” McLennan v. American Eurocopter Corp., Inc., 245 F.3d 403, 427
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(5th Cir. 2001) (internal quotation marks omitted) (quoting Coleman v. Cintas
Sales Corp., 40 S.W.3d 544, 549 (Tex. App.—San Antonio 2001, pet. denied)).
To recover based on the inadequacy of a warning, a plaintiff must show that
adequate warnings would have made a difference in the outcome; that is, that the
warnings would have been followed. See Gen. Motors Corp. v. Saenz, 873 S.W.2d
353, 357 (Tex. 1993).
A marketing defect claim presumes that the product can be made reasonably
safe with proper instructions or warning.
The issue of a warning becomes
irrelevant, however, when a plaintiff contends, as Mack does, that defendants
should have warned customers of alleged design defects in the product. Texas
courts consistently recognize that plaintiffs are not entitled to simply “restat[e] the
design defect claim” as a marketing defect claim. See, e.g., Hernandez v. Ford
Motor Co., 2005 WL 1693945, at *1–2 (S.D. Tex. July 20, 2005) (granting
summary judgment for defendant because plaintiffs’ claim merely restated design
defect claim and did not establish causation); Lujan v. Tampo Mfg. Co., Inc., 825
S.W.2d 505, 510 (Tex. App.—El Paso 1992, no writ) (granting summary judgment
for manufacturer because plaintiff’s claim that the manufacturer should have
warned of the absence of a safety device merely restated the manufacturing and/or
design defect claims).
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Mack’s design and marketing defect claims are based on the same defect
allegations. A finding of no design defect thus also disposes of Mack’s marketing
defect claims. However, even as an independent claim, the marketing defect claim
fails because Mack has not criticized the specific warnings and instructions
accompanying the mower nor demonstrated that an alternative warning would have
prevented the alleged injuries in this case. Accordingly, Mack’s marketing defect
claim is dismissed.2
D. Breach of Warranty Claims
The Court next addresses the three breach of warranty claims Mack asserts
in his complaint: implied warranty of merchantability, implied warranty of fitness
for a particular purpose, and express warranty.
i. Implied Warranty of Merchantability
A breach of implied warranty of merchantability exists if the product was
defective when it left the manufacturer’s or seller’s possession and it was unfit for
the ordinary purposes for which the product is used. See Tex. Bus. & Com. Code
Ann. §2.314 (West 2013); Parish, 2006 WL 734418, at *3. “A product which
2
Mack also alleges that the Defendants’ negligence proximately caused his injuries. However,
this negligence claim presents the same factual question as the strict liability defect claims—
whether the mower was defective in some way that caused injury to the Plaintiff. Texas courts
have recognized that liability for negligence cannot be imposed if a product is not defective
because a manufacturer should not be held liable for failing to exercise ordinary care when
producing a product that is not defective. See Toshiba International Corp. v. Henry, 152 S.W.3d
774, 784–85 (Tex. Civ. App.—Texarkana 2004, no pet.) (citing Garrett v. Hamilton Standard
Controls, Inc., 850 F.2d 253, 257(5th Cir. 1988)).
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performs its ordinary function adequately does not breach the implied warranty of
merchantability merely because it does not function as well as the buyer would
like, or even as well as it could.” See Gen. Motors Corp. v. Brewer, 966 S.W.2d
56, 57 (Tex. 1998). Defendants are entitled to summary judgment on the breach of
implied warranty claim because there is no evidence that the mower or its seat did
not perform their ordinary function adequately.
ii. Implied Warranty of Fitness for a Particular Purpose
A warranty of fitness for a particular purpose arises if the seller has reason to
know of a particular “non-ordinary” purpose for which the goods are acquired and
if the buyer was relying on the seller’s skill or judgment to select or furnish
suitable goods. Tex. Bus. & Com. Code Ann. §2.315; Recursion Software, Inc. v.
Interactive Intelligence, Inc., 425 F.Supp.2d 756, 786 (N.D. Tex. 2006); Sipes v.
Gen. Motors Corp., 946 S.W.2d 145, 158 (Tex. App.—Texarkana 1997, writ
denied). Here, there is no evidence that Mack acquired this mower for a nonordinary purpose nor that Defendants had reason to know of that purpose.
Defendants are therefore entitled to summary judgment on this claim.
iii. Express Warranty
The elements of breach of an express warranty are an express affirmation of
fact or promise by the seller relating to the goods that is part of the basis of the
bargain on which the plaintiff relied, goods that fail to comply with the
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affirmations of fact or promise, and injuries proximately caused by that failure.
Great Am. Prods. v. Permabond Int’l, 94 S.W.3d 675, 681 (Tex. App.—Austin
2002, pet. denied). While Mack’s complaint generally alleges that Defendants
breached express warranties, it does not identify any particular express warranties
made. Nor has Mack produced any evidence of such an express warranty, that he
relied on any such representation, that the mower failed to comply with any such
representation, or that he sustained injuries as a result of that failure. Thus,
summary judgment in favor of the Defendants is again appropriate.
III.
CONCLUSION
For the reasons discussed above, Defendants’ Motion for Summary
Judgment (Docket Entry No. 17) is GRANTED. A separate order entering final
judgment in this case will issue.
SIGNED this 6th day of November, 2013.
___________________________________
Gregg Costa
United States District Judge
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