Plustwik v. Voss of Norway ASA

Filing 43

MEMORANDUM DECISION granting 33 Motion for Summary Judgment. Signed by Judge David Sam on 05/08/2013. (asp)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
THOMAS PLUSTWIK,

)

Plaintiff,

Case No. 2:11CV00757 DS

)

vs.

)
MEMORANDUM DECISION
AND ORDER

VOSS OF NORWAY ASA,

)

Defendant.

)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
I.

INTRODUCTION

Plaintiff Thomas Plustwik complains that while working at a
restaurant and “stocking a box of VOSS sparkling water one bottle
bumped against another causing one of the VOSS bottles to explode,
sending shards of glass towards [his] face”, Compl. ¶7, causing him
injury.
Plaintiff

filed

suit

claiming

strict

product

liability,

negligence and breach of express and implied warranty claims
against Defendant Voss of Norway ASA (“Voss”).

Voss moves for

summary judgment asserting that Mr. Plustwik fails to establish the
elements of those claims.
II.

SUMMARY JUDGEMENT STANDARD

Under Fed. R. Civ. P. 56, summary judgment is proper only when
the pleadings, affidavits, depositions or admissions establish
there is no genuine issue regarding any material fact and the
moving party is entitled to judgment as a matter of law.

The

burden of establishing the nonexistence of a genuine issue of
material fact is on the moving party.1

E.g., Celotex Corp. v.

Catrett, 477 U.S. 317 (1986). Before the court can rule on

a

party’s motion for summary judgment, the moving party must satisfy
its burden of production in one of two ways: by putting evidence
into the record that affirmatively disproves an element of the nonmoving party’s case, or by directing the court’s attention to the
fact that the non-moving party lacks evidence on an element of its
claim, “since a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other
facts immaterial.”

Celotex, 477 U.S. at 323-25.

On those issues

for which it bears the burden of proof at trial, the nonmovant
“must go beyond the pleadings and designate specific facts to make
a showing sufficient to establish the existence of an element
essential to his case in order to survive summary judgment.”
Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)(internal
quotations and brackets omitted).
The central inquiry is "whether the evidence presents a
sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law."
Id.

If the nonmoving party cannot muster sufficient evidence to

make out a triable issue of fact on his claim, a trial would be

1

Whether a fact is material is determined by looking to
relevant substantive law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242.
2

useless and the moving party is entitled to summary judgment as a
matter of law.

Celotex, 477 U.S. 242.
III.

A.

DISCUSSION

Strict Liability, Negligence (First & Second Claims)

Mr. Plustwik alleges that the Voss water bottle was defective
and

unreasonably

dangerous

due

to

defects

in

the

design,

manufacture and warnings of the sparkling water and glass bottle at
issue,

and

that

Voss

was

negligent

in

its

duty

to

exercise

reasonable care as to those matters.
As Voss notes, a plaintiff in a strict products liability case
must show: “(1)that the product was unreasonably dangerous due to
a defect or defective condition, (2)that the defect existed at the
time the product was sold, and (3)that the defective condition was
a cause of the plaintiff’s injuries.”
Co.,

328

Cannondale

F.3d

1274,

Bicycle

1279

Co.,

(10th

876

Cir.

P.2d

3

Brown v. Sears, Roebuck &
2003)(quoting

415,

418

(Utah

Burns
Ct.

v.

App.

1994)(internal quotation marks omitted).2
simply show that the product failed.

It is not enough to

See Burns, 876 P.2d at 418.

Mr Plustwik’s claim for negligence also requires that he
establish a causal connection between the alleged product defect
and

his

resulting

injury.

See

Niemela,

263

P.3d

at

1198

(“plaintiff claiming negligence in [product liability] context must
prove the ordinary elements of negligence, including duty and
causation”).
The evidence is that Mr. Plustwik was handling a box of Voss
water bottles when a bottle contained within the box contacted
another bottle and broke, and a shard of glass cut Mr. Plustwik’s
cheek. No admissible evidence has been presented to the Court that
the product was unreasonably dangerous, that any claimed defect
existed at the time the product was sold or that the defect was a
cause of his injuries.

2

See also Niemela v. Imperial Mfg., Inc., 263 P.3d 1191, 1198
(Utah Ct. App. 2011), cert. denied, 272 P.3d 168 (Utah 2012).
Although the tort of strict products liability
is a creature of common law, see Brown v.
Sears, Roebuck & Co., 328 F.3d 1274, 1278-79
(10th Cir. 2003)(applying Utah law), the Utah
Product Liability Act provides the standard
for
determining
whether
a
product
is
defective. Under this standard, a plaintiff
must show that the product was unreasonably
dangerous to the user or consumer at the time
it was sold by the manufacturer or other
initial seller. [see Utah Code Ann. § 78B-6703(1)(2008)]

4

Voss,

therefore,

Plaintiff’s

is

First

Second

and

entitled
Claims

to

summary

because,

judgment

other

than

on
his

inadmissible conclusory assertions, Mr. Plustwik has failed to
submit any admissible evidence in support of his claims that Voss’s
product was unreasonably dangerous due to a defect or defective
condition, or that the defective condition was a cause of his
injuries.

The hand written letter prepared by Plaintiff and

claiming to be the words of a previously unidentified bottle expert
is inadmissible.
statements

are

The Court agrees with Voss that the purported
hearsay,

speculative,

lack

foundation,

are

inadmissible under Fed. R. Civ. P. 26 for Plaintiff’s failure to
timely disclose her as an expert, and inadmissible under Fed. R.
Evid. 702 and 703 for failure to utilize proper methodology and
failure to rely on facts in the record.
B.

Breach of Express and Implied Warranties (Third, Fourth
and Fifth Claims)

Mr. Plustwik also alleges in the Complaint that Voss expressly
or impliedly warranted that the bottle was free from defects and
safe to use as intended.
As discussed by Defendant in its pleadings, there is no
evidence that any warranty was created or breached under any of Mr.
Plustwik’s three theories. Absent any admissible evidence there is
nothing to present to a jury and Voss is also entitled to summary
judgment

on Plaintiff’s Third, Fourth and Fifth Claims.

5

IV CONCLUSION
For the reasons stated, as well as generally for those reasons
set forth by Voss in its pleadings, Voss’s Motion for Summary
Judgment (Doc. #33) is granted.

The Clerk of the Court is

requested to enter final judgment for Voss.
It is so ordered.
DATED this 8th day of May, 2013.
BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT

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