Sutherlin v. Lowe's Home Centers, LLC
Filing
53
MEMORANDUM OPINION. See Order for detail. Signed by Magistrate Judge David J. Novak on 12/23/2014. (ccol, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ANTWAN SUTHERLIN,
Plaintiff,
Civil No. 3:14cv368(DJN)
V.
LOWE'S HOME CENTERS, LLC,
Defendant.
MEMORANDUM OPINION
In this case, the Court must determine whether Defendant negligently caused Plaintiffs
injuries by allowing an allegedly defective containerof UGL Drylok Masonry Waterproofer
("waterproofer") to create a dangerous condition in its paint department and by failing to warn
Plaintiffabout the risk of spillage of the container's contents due to its alleged dangerously
defective condition. This matter comes before the Court by consent pursuant to 28 U.S.C.
§ 636(c)(1) on Defendant's Motion for Summary Judgment (ECF No. 40). For the reasons that
follow, the Court GRANTS Defendant's Motion (ECF No. 40).
I.
FACTUAL BACKGROUND
Antwan Sutherlin ("Plaintiff') brings this action against Lowe's Home Centers, LLC
("Defendant"), alleging negligence in relation to Plaintiffs alleged exposure to an oil-based
waterproofer while in Defendant's store. (Def's Mem. in Supp. of Mot. for Summ. J. ("Def's
Mem.") (ECF No. 41) at 1.) The Court determines that the undisputed facts are as follows.'
'
Pursuant to Local Rule 56(B), each brief in support ofa motion for summary judgment
must contain a section listing all undisputed material facts. E.D. Va. Loc. R. 56(B). Briefs in
response to such motions must contain a section listing those facts "as to which it is contended
that there exists a genuine issue necessary to be litigated." Id. Defendant's memorandum in
On April 23, 2012, Plaintiffwent to Defendant's store at 1640 West Broad Street in
Richmond, Virginia. (Am. Compl. (ECF No. 20-1) ^ 2.)" While in the paint department that
day. Plaintiff observed cans of waterproofer stacked inside of a metal bay. (Portions of Tr. of
Dep. of Antwan Sutherlin ("Sutherlin Dep.") (ECF No. 41-1) 100:1-12, Oct. 3, 2014.) Plaintiff
stated that he tipped the top can — a five-gallon can of waterproofer — forward, so that he could
read the label on the back of the can. (Sutherlin Dep. 100:13-25, 101:6-14, 102:9-13.) A
warning label on the can stated that the waterproofer must be used in a specific manner under
specific circumstances and has the potential to cause damage to the brain or nervous system.
(PL's Resp. Br. to Def.'s Mot. for Summ. J. ("PL's Resp.") (ECF No. 47) at 3.)^ Plaintiff did not
see anything wrong with the can before tipping it towards himself, and its lid "looked like it was
on." (Sutheriin Dep. 101:23-25, 102:5-7.)
When Plaintiff tipped the can forward to read the back label, its contents spilled out onto
him. (Def.'s Mem. at 1.) Plaintiff testified that "there was a hole somewhere in the top" of the
can that he "couldn't see, where like something had maybe hit it." (Sutherlin Dep. 102:14-16.)
After the incident. Plaintiff stated that he observed that some of the tabs on the container's lid
"were either bent up or had been damaged," but he "couldn't see" this alleged damage before the
spill. (Sutherlin Dep. 102:17-25.) Plaintiff acknowledged that he had "no idea" how the alleged
cracks in the can's lid came to be, "no idea" when they occurred, "no idea" how long they had
support of its motion for summary judgment included such a section. (Def.'s Mem. at 1-2.) In
responding to Defendant's motion, Plaintiff did not dispute such facts. Accordingly, the Court
accepts Defendant's recitation of the facts as undisputed.
^
Because Plaintiff did not provide his own separate recitation of facts as noted in Footnote
1, the Court refers to the Complaint in a few instances in this Memorandum Opinion.
^
Although Plaintiff did not provide a listing of undisputed facts ordispute Defendant's
version, Plaintiff did offer a few sporadic facts in his response.
been there and "no idea" who caused them. (Sutherlin Dep. 105:4-12.)
Two of Defendant's employees who were working in the paint department at the time of
this incident, Louis Wilby and Arlene Salmons, were deposed in connection with this matter.
(Defs Mem. at 2; Portions of Tr. of Dep. of Louis Wilby ("Wilby Dep.") (ECF No. 41-2);
Portions of Tr. of Dep. of Arlene Salmons ("Salmons Dep.") (ECF No. 41-3).) Both testified
that they had not previously witnessed a spill of a five-gallon container of waterproofer while
working. (Def.'s Mem. at2.f Defendant's employees also testified that Defendant has safety
protocols inplace for dealing with spills of hazardous materials ("HAZMAT").^
After the spill. Plaintiff left the store. (Def.'s Mem. at 2.) While driving home, he was
overcome by the fumes, passed out and was involved in a single-car accident. (Def's Mem. at
2.) Plaintiff alleges that he suffers from cognitive damage as a result of his exposure to the
waterproofer and subsequent car accident. (Def.'s Mem. at 2.)
II.
PROCEDURAL HISTORY
Plaintiff filed this action in the City of Richmond Circuit Court alleging six counts: (I)
Premises Liability — General Negligence; (II) Products Liability — General Negligence; (III)
Strict Products Liability; (IV) Products Liability — Failure to Warn of Danger in Handling of
Product; (V) Products Liability — Breach of Express Warranty; and (VI) Products Liability —
Defendant made this assertion in its listing of undisputed facts, to which Plaintiff raised
no objection. The Court notes, however, that the deposition testimony cited by Defendant does
not support this statement as required under Rule 56(c). Fed. R. Civ. P. 56(c). Because Plaintiff
did not object to the fact of Wilby's and Salmons's testimony on this point, it is deemed admitted
in accordance with Local Rule 56. E.D. Va. Loc. R. 56(B).
^
Plaintiffdid not provide a citation to the Wilby and Salmons depositions in support of
this claim as required under Rule 56(c). Fed. R. Civ. P. 56(c). Defendant does not object to the
fact of Defendant's internal procedures, but states in its reply that it intended to object to any
evidence of such procedures as inadmissible. (Def.'s Mem. in Rebuttal to PL's Resp. Br.
("Def.'s Reply") (ECF No. 50) at 7.)
Breach of Implied Warranty of Merchantability. (Compl. (ECF No. 1-1)11^ 10-52.) Defendant
timely removed the case to this Court. (Defs.' Mem. at 2; Def.'s Notice of Removal (ECF No.
!)•)
On May 23, 2014, Defendant moved this Court to dismiss Counts III, V and VI of
Plaintiffs Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Def's
Mot. to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 4).) On September 23, 2014, this
Court granted Defendant's motion and dismissed Counts III, V and VI for failure to state a claim
upon which relief can be granted. (Order (ECF No. 16).) Following the Court's decision,
Plaintiff filed an amended complaint re-alleging Counts I, II and IV on October 16, 2014. (Am.
Compl.
10-29.)
On November 25, 2014, Defendant moved this Court to dismiss Plaintiffs amended
complaint for lack of subject matter jurisdiction. (Def.'s Mot. to Dismiss for Lack of Subject
Matter Jurisdiction (ECF No. 38).) Defendant argued that because Plaintiff filed for bankruptcy
during the pendency of this lawsuit and did not disclose the existence of this claim to the
Bankruptcy Court or identify it as property of the bankruptcy estate, Plaintiff lacked standing to
pursue his claim. (Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss for Lack of Subject Matter
Jurisdiction ("Def's Mot. to Dismiss Mem.") (ECF No. 39) at 1-2.) Because Plaintiffs personal
injury claim was property of the bankruptcy estate and the bankruptcy trustee had not abandoned
the claim, Defendant argued that only the trustee had standing to pursue the claim. (Def's Mot.
to Dismiss Mem. at 2-3.) Plaintiff responded that his failure to disclose his claim to the
bankruptcy court was an error that he had since corrected and stated that the bankruptcy trustee
intended to abandon the claim, thereby clearing the way for Plaintiff to proceed in this matter.
(Pl.'s Resp. to Defs Mot. to Dismiss for Lack of Subject Matter .Jurisdiction (ECF No. 46) at 1-
2.) On December 10, 2014, the Court denied Defendant's motion to dismiss provided that not
later than December 23,2014, Plaintiff filed proof of the trustee's abandonment of the claim.
(Order (ECF No. 49).) On December 23,2014, Plaintiff filed a response to the Court's Order,
attaching a letter from counsel for the bankruptcy trustee that indicated that the trustee had not
abandoned the claim, but would authorize Plaintiff to continue to pursue his claim.
On the same day that Defendant filed its motion to dismiss for lack of subject matter
jurisdiction. Defendant also moved for summary judgment on the grounds that Plaintiff failed to
establish a primafacie case for any of his remaining claims. (Def.'s Mem. at 4-12.) On
December 15, 2014, the Court issued an Order granting Defendant's motion for summary
judgment in its entirety. (Order (ECF No. 51).) This memorandum opinion sets forth the
reasons for the Court's grant of summary judgment for Defendant.
III.
STANDARD OF REVIEW
Summary judgment is appropriate where"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 relevant inquiry at the summary judgment stage analyzes "whetherthe
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." Anderson v. Liberty Lobby, Inc., All
U.S. 242,251-52 (1986). When reviewing a motion for summaryjudgment, the Court views the
facts in the light most favorable to the non-moving party. Id. at 255. The Court cannot weigh
the evidence; it must simply determine whether a genuine issue exists for trial. Greater Bait.
Ctr. For Pregnancy Concerns v. Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) (quoting Liberty
Lobby, Inc., All U.S. at 249).
Once the movant properly makes and supports a motion for summary judgment, the
burden shifts to the opposing party to show that a genuine dispute of material fact exists.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the standard requires "that there be no
genuine issue of material fact." Liberty Lobby, Inc., All U.S. at 247. A genuine issue of
material fact arises only when the evidence, viewed in the light most favorable to the non-
moving party, sufficiently allows a reasonablejury to return a verdict in that party's favor. Id. at
248. To defeat an otherwise properly-supported motion for summary judgment, the non-moving
party must rely on more than conclusory allegations, "mere speculation," the "building of one
inference upon another," the "mere existence of a scintilla of evidence" or the appearance of
some "metaphysical doubt" concerning a material fact. Lewis v. City ofVa. Beach Sheriff"s
Office, 409 F. Supp. 2d 696, 704 (E.D. Va. 2006) (citations omitted). The Court must enter
summary judgment against a party that, "after adequate time for discovery and upon motion,...
fails to make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett,
All U.S. 317,322 (1986). "In such a situation, there can be 'no genuine issue as to any material
fact,' since a complete failure of proof concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial." Id. at 323.
IV.
DISCUSSION
The parties do not dispute that Plaintiff spilled the waterproofer on himself while inside
Defendant's store on the date in question. They do, however, dispute whether Plaintiff has
established aprimafacie case for negligence under either his premises liability claim or his
products liability claims. Specifically, the parties disagree as to whether Plaintiff must establish
that Defendant had knowledge of the alleged dangerous condition to prevail on its premises
liability claim, whether Virginia law recognizes Plaintiffs general negligence products liability
claim and whether Defendant had a duty to warn Plaintiff of the alleged risk of spillage due to
the waterproofer's alleged inherent dangerousness. The Court considers these issues in turn.
A. Plaintiff Fails to Establish a Prima Facie Case for Premises Liability in Count 1.
A court exercising diversity jurisdiction applies the substantive law of the forum state.
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938).^ In Virginia, to recover on a negligence
claim, Plaintiff must establish: (1) that Defendants owed Plaintiff a duty, (2) that Defendants
breached that duty, and (3) that this breach proximately caused Plaintiff to suffer damages.
Atrium Unit Owners Ass'n v. King, 266 Va. 288, 293, 585 S.E.2d 545, 548 (2003) (citing Fox v.
Custis, 236 Va. 69, 73, 372 S.E.2d 373, 375 (1988); Trimyer v. Norfolk Tallow Co., 192 Va. 776,
780, 66 S.E.2d 441,443 (1951)). Under well-established Virginia law, "store owners must
maintain reasonably safe facilities for their invitees' visits." Ftillz v. Delhaize Amer., Inc., 278
Va. 84, 88,677 S.E.2d 272, 274 (2009). Though a storeowner is not an insurer of an invitee's
safety while on the premises, id at 89, 677 S.E.2d at 274 (citing Knight v. Moore, 179 Va. 139,
145, 18 S.E.2d 266,269 (1942)), the storeowner "owes an invitee the duty of using ordinary care
to maintain its premises in a reasonably safe condition and to warn ... of any hidden dangers."
Volpe V. City ofLexington, 281 Va. 630, 636, 708 S.E.2d 824, 827 (2011) (quoting Amoz v.
NationsBank, N.A., 256 Va. 344, 346, 504 S.E.2d 365, 366 (1998)) (internal quotation marks
omitted).
^
The Court exercises diversity jurisdiction in this matter pursuant to 28 U.S.C. § 1332(a),
because the parties are diverse and the amount in controversy exceeds $75,000. Plaintiff is a
citizen of Virginia, and Defendant is a citizen of North Carolina with its principal place of
business in North Carolina. (Def.'s Notice of Removal
5-6.) Plaintiff seeks $25,000,000 in
damages. (Am. Compl. ^ 2.)
To fulfill this duty, "a storeowner must give notice or warning of an unsafe condition
which is known to him and is unknown to the invitee." Fultz, 278 Va. at 89,677 S.E.2d at 274
(quoting Knight, 179 Va. at 146, 18 S.E.2d at 269) (internal quotation marks omitted).
Therefore, in addition to proving duty, breach and causation, the plaintiff in a premises liability
case must also "prove the existence of an unsafe or dangerous condition on the premises."
Hodge V. Wal-Mart Stores, Inc., 360 F.3d 446,451-52 (4th Cir. 2004) (citing Kendrick i'. Vaz.
Inc., 244 Va. 380, 385,421 S.E.2d 447,450 (1992)). Finally, to hold a property owner liable for
injuries caused by a dangerous condition, "it must be shown that the owner had knowledge of the
alleged unsafe condition, or that it had existed for such a length of time as to make it the owner's
duty in the exercise of ordinary care to have discovered it." Cannon v. Clarke, 209 Va. 708, 712,
167 S.E.2d 352, 355 (1969) (citing Miracle Mart. Inc. v. Webb, 205 Va. 449, 453, 137 S.E.2d
887, 890 (1964); Culpepper v. Neff, 204 Va. 800, 804, 134 S.E.2d 315, 318-19 (1964)).
1. Knowledge Is an Essential Element of a Premises Liability Claim Under Virginia
Law.
The parties do not dispute that Defendant, a store owner, owed Plaintiff, an invitee, the
duty of using ordinary care to maintain its premises in reasonably safe condition. See Volpe, 281
Va. at 636, 708 S.E.2d at 827 (a storeowner "owes an invitee the duty of using ordinary care to
maintain its premises in a reasonably safe condition and to warn ... of any hidden dangers");
(Def.'s Mem. in Rebuttal to Pl.'s Resp. Br. ("Def's Reply") (ECF No. 50) at 2.) Although the
parties do not dispute that Defendant owed Plaintiff a duty. Plaintiff must nevertheless establish
the remaining elements of his negligence claim to prevail. See Colonial Stores Inc. v. Pulley,
203 Va. 535, 537, 125 S.E.2d 188, 189 (1962) ("The burden of proving the defendant's
negligence was on the plaintiff."). The parties disagree as to the nature of these elements,
specifically, whether Plaintiff must establish Defendant's knowledge to succeed on his claim.
8
(Def.'s Mem. at 4; Pl.'s Resp. at 2; Def.'s Reply at 3-4.) Defendant argues that Plaintiffs claim
must fail, because PlaintifT presented no evidence of Defendant's actual or constructive
knowledge of the allegedly damaged waterproofer container. (Def.'s Mem. at 4.) Plaintiff
responds that "[k]nowledge or notice of an unsafe condition on the premises is not required" to
establish Defendant's negligence, because this is not a slip and fall case. (Pl.'s Resp. at 2.)
Therefore, Plaintiff asserts, the jury must determine whether "Defendant use[d] ordinary care in
inspecting its premises and products for sale to ensure they were in a reasonably safe condition to
be handled by their invitees." (PL's Resp. at 2.) Because failure to establish an essential element
of his primafacie case would doom Plaintiffs premises liability claim, the Court need only
consider whether Plaintiff was required to establish Defendant's knowledge to prevail, and, if so,
whether Plaintiff presented sufficient proof to survive summary judgment. See Celotex Corp.,
477 U.S. at 323 ("[A] complete failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other facts immaterial.")
Contrary to Plaintiffs unsupported contention that knowledge is not required because
Plaintiff did not slip and fall, the elements of a negligence premises liability claim do not vary
based on the mechanism of the alleged injury. The rules applicable to premises liability are well-
established. See Grim v. Rahe, Inc., 246 Va. 239, 242, 434 S.E.2d 888, 889 (1993) (citing Roll
'R' Way Rinks. Inc. v. Smith, 218 Va. 321, 327,237 S.E.2d 157,161 (1977)) ("In premises
liability cases, the plaintiff must introduce evidence of the responsible person's actual or
constructive knowledge of a defective condition on the premises to establish a primafacie case
of negligence."). Whether the alleged injury involves a slip and fall in a grocery store or a mirror
falling off of a retailer's shelf, a plaintiff must establish a defendant's actual or constructive
knowledge of the dangerous condition to prevail. See, e.g., Hodge, 360 F.3d at 453 (requiring
that plaintiff injured by falling mirror prove defendant's knowledge); Colonial Stores Inc., 203
Va. at 537, 125 S.E.2d at 190 (requiring that plaintiff prove defendant's knowledge in grocery
store slip-and-fall). Mindful that Plaintiff bears the burden of establishing Defendant's actual or
constructive notice of the allegedly dangerous condition, the Court must determine whether he
has adduced sufficient evidence to survive summary judgment.
2. Plaintiff Fails to Establish That Defendant Had Knowledge of the Alleged Dangerous
Condition.
Assuming, arguendo, that Plaintiff produced sufficient evidence to raise a jury question
on the other elements of his claim, summary judgment would nevertheless be appropriate,
because Plaintiff failed to produce any evidence that Defendant had actual or constructive notice
of the allegedly dangerous condition of the waterproofer container. Indeed, Plaintiff does not
contend that Defendant had actual notice of the alleged danger, and has not produced any
evidence to suggest otherwise.' Thus, the Court must consider whether there is sufficient
evidence to find that Defendant had constructive knowledge of the allegedly dangerous
waterproofer container before Plaintiff spilled its contents on himself.
"[C]onstructive knowledge or notice of a defective condition of a premise ... may be
shown by evidence that the defect was noticeable and had existed for a sufficient length of time
to charge its possessor with notice of its defective condition." Grim, 246 Va. at 242,434 S.E.2d
at 890 (citing Colonial Stores Inc., 203 Va. at 537, 125 S.E.2d at 190). Though the amount of
time considered "sufficient" may vary case to case, "if the evidence fails to show when a defect
'
During Plaintiffs deposition, counsel for Defendant asked Plaintiffthe following; "Do
you have any evidence that anyone from Lowe's knew it was cracked?" Plaintiff responded
"[a]ll I know is that they put it in the bins. And that's it." (Sutherlin Dep. 105:18-20.)
Defendant's counsel then asked Plaintiff whether anyone from Lowe's told him that they knew
that the container was cracked, and Plaintiff responded "[w]e didn't talk about it." (Sutherlin
Dep. 105:21-23.)
10
occurred on the premises, the plaintiff has not made out a primafacie case." Id. at 242,434
S.E.2d at 890 (citing Winn-DixieStores, Inc. v. Parker, 240 Va. 180, 184, 396 S.E.2d 649, 651
(1990)).
In a case decided under Virginia law involving a retail patron who was injured when
mirrors fell from a display onto her, the Fourth Circuit affirmed the trial court's grant of
summary judgment for the retailer on the grounds that the plaintiff "ha[d] insufficient evidence
of when, that afternoon, the specific unsafe condition [the court] assume[s] produced her injury
developed." Hodge, 360 F.3d at 454. The court went on to say that "it is as logical to assume
that an unsafe condition with the mirrors arose in the moments before [plaintiff] entered the
display area as it is to assume that it had been there long enough that [defendant] should have
known about it." Id.
Similarly, Plaintiff fails to present any evidence whatsoever to show that Defendant was
aware of the waterproofer container's condition or the alleged danger that it posed. In fact.
Plaintiffdoes not even attempt to argue that Defendant had the requisite notice or knowledge.
During his deposition, Plaintiff testified that he did not see anything wrong or defective about the
can when he first approached it. (Sutherlin Dep. 101:9-12, 102:5-7.) He stated that "[t]he lid
looked like it was on it" and that he saw that the metal lid's plastic insert "was in there."
(Sutherlin Dep. 101:23-102:4.) Even once Plaintiff tipped the can forward and leaned it against
his body so that he could more closely examine the back label, he still did not see anything
wrong with it. (Sutherlin Dep. 102:9-13.) Plaintiff admitted that even as the spill was occurring,
he "couldn't see" the "hole somewhere in the top" of the container and did not notice that its
contents were leaking until someone else told him. (Sutherlin Dep. 102:14-15, 103:5-9.)
Plaintiff offered no evidence of when the allegedly dangerous condition developed or how long it
11
existed before his spill. Indeed, he affirmatively disavowed any knowledge of how or when the
container becamedamaged, how long ago the damage occurred or who was responsible for
causing it. (Sutherlin Dep. 105:4-12.) In light of Plaintiffs testimony that he could not discern
the alleged defect while handling the container and carefully scrutinizing its exterior, as well as
his failure to present any indication of when the dangerous condition arose, there is no basis for
finding that Defendant had constructive knowledge of the allegedly dangerous condition. See
Grim, 246 Va. at 242,434 S.E.2d at 890 (noting that Plaintiff must adduce evidence showing
that "the defect was noticeable and had existed for a sufficient length of time to charge its
possessor with notice of its defective condition").
Here, Plaintiff offers no evidentiary basis from which to conclude when the alleged
dangerous condition arose and, therefore, cannot establish that the condition existed long enough
for a jury to conclude that Defendant was aware of it. Hodge, 360 F.3d at 454. Thus, Plaintiff
has not made out a primafacie case of negligence. See, e.g.. Grim, 246 Va. at 242-43,434
S.E.2d at 890 (quoting Winn-Dixie Stores, 240 Va. at 184, 396 S.E.2d at 651) ("Hence, if the
evidence fails to show when a defect occurred on the premises, the plaintiff has not made out a
primafacie case."). Accordingly, Defendant prevails on this count. See Celotex Corp., All U.S.
at 322 (mandating the entry of summary judgment against a party that, "after adequate time for
discovery and upon motion,... fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of proof at
trial").
B. Plaintiff Fails to Establish a Prima Facie Case for Negligence in Count II.
In Count II, Plaintiff asserts a theory of "general negligence in product liability," alleging
that Defendant breached its "general duty to ensure that the [waterproofer] was reasonably safe
12
for the foreseeable use by customers" by allowing the "toxic material to escape and injure
[Plaintiff]." (PL's Resp. at 3-4.) Defendant argues that Plaintiffs general negligence theory of
products liability is not a cognizable cause of action under Virginia lawand that Plaintiff fails to
otherwise establisha prima facie case for a recognized products liability claim sounding in
negligence. (Def.'s Mem. at 6-9; Def.'s Reply at 4-5.)
1. Virginia Law Does Not Recognize a Products Liability Cause of Action for "General
Negligence."
"A manufacturer does not insure its product's safety, and need not supply an accident-
proof product." Ball v. Takeda Pharm. Am., Inc., 963 F. Supp. 2d 497, 505 (E.D. Va. 2013)
(citing Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 133,413 S.E.2d 630, 634
(1992)) (quoting Besser Co. v. Hansen, 243 Va. 267, 276,415 S.E.2d 138, 144 (1992)) (internal
quotation marks omitted). "Under Virginia law, recovery for product related injuries ... turns
on whether the product, as designed, manufactured, and labeled, is unreasonably dangerous for
its reasonably foreseeable uses." Gary J. Spahn, el al, Virginia Practice Products Liability § 6:1
(2014). To prevail, a plaintiff suing a product's manufacturer for negligence "must show (1) that
the [product was] unreasonably dangerous either for the use to which [it] would ordinarily be put
or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous
condition existed when the goods left the manufacturer's hands." Jeld-Wen, Inc. v. Gamble, 256
Va. 144, 148, 501 S.E.2d 393, 396 (1998) (quoting Morgen Indus., Inc. v. Vaughan, 252 Va. 60,
65,471 S.E.2d 489,492 (1996)). Virginia law recognizes three negligence-based causes of
action that may give rise to liability on the part of manufacturers and sellers of defective
products: (1) negligent design, (2) negligent manufacture and (3) negligent failure to warn. See
Ball, 963 F. Supp. 2d at 506 (quoting Sykes v. Bayer Pharm. Corp., 548 F. Supp. 2d 208, 215
(E.D. Va. 2008)) ("The Virginia Supreme Court has stated that a product may be unreasonably
13
dangerous in three ways, if it is defective in assembly or manufacture, unreasonably dangerous in
design, or unaccompanied by adequate warnings concerning its hazardous properties." (internal
quotation marks omitted)). "By implication, any other type of product-liability claim cannot
succeed." Id. (quoting Sykes, 548 F. Supp. 2d. at 215) (internal quotation marks omitted).
In its motion for summary judgment, Defendant asserts that Plaintiffs general negligence
products claim is best understood as a negligent design claim. (Def.'s Mem. at 6 ("[T]he
essential premise of his claim is that the waterproofer's packaging was defective, which best fits
under a negligent design theory of recovery.").) Plaintiff responds that he "is not contending that
the waterproofer itself was defective, nor that its container was negligently designed. Plaintiff is
contending that Defendant allowed this toxic material to escape and injure him." (Pl.'s Resp. at
3.) Defendant seizes on Plaintiffs position to argue that Plaintiff has not made out any type of
products liability claim. (Def.'s Reply at 4-5.) Instead, Defendant contends. Plaintiff has merely
attempted to restyle his premises liability claim into one for products liability. (Def.'s Reply at
4-5.)
"Analysis properly begins with the Supreme Court of Virginia's clearly-expressed view
that products liability actions may take one of three forms." Torkie-Tork v. Wyefh, 757 F. Supp.
2d 567, 571 (E.D. Va. 2010) (discussing the Supreme Court of Virginia's description of
negligence-based products liability claims in Morgen Industries). Numerous courts have
rejected attempts to expand the universe of cognizable negligence claims in products liability
beyond those for design, manufacture and failure to warn. See, e.g.. Ball, 963 F. Supp. 2d at 506
(dismissing "failure to test" claim); Torkie-Tork, 757 F. Supp. 2d at 571 (finding manufacturer
did not have duty to perform additional testing of product); Sykes, 548 F. Supp. 2d at 215
(dismissing "failure to lest" claim). The Court finds no basis for departing from this well-
14
established practice to recognize Plaintiffs self-styled "theory of general negligence in products
liability." To survive summaryjudgment on this count, therefore, the Court must determine
whether Plaintiff has adduced sufficient evidence to establish a primafacie case for one of the
three recognized negligence claims in products liability. Because Plaintiff stated emphatically
that he was not contending that the waterproofer container was negligently designed, the Court
need not consider whether he has established a negligent design claim. (PL's Resp. at 3.) Nor
must the Court consider whether Plaintiff has established a claim for negligent failure to warn in
Count II, because he separately alleges that claim in Count III. (Am. Compl.
24-29.)
Therefore, by process of elimination, the sole remaining possibility is that of negligent
manufacture. Although Plaintiff bears the burden of establishing his claim, the Court will
nonetheless consider whether Plaintiff has presented evidence of negligent manufacture
sufficient to withstand Defendant's motion for summary judgment on this count.
2. Plaintiff Fails to Establish a Prima Facie Case for Negligent Manufacture.
Plaintiff fails to produce sufficient evidence to support a claim for negligent manufacture.
As noted previously, to prevail on a negligence claim for products liability. Plaintiff must show
that the weatherproofer was unreasonably dangerous for the use to which it would ordinarily be
put or for some other reasonably foreseeable purpose and that the unreasonably dangerous
condition existed when the waterproofer left the seller's hands. Logan v. Montgomery Ward &
Co., 216 Va. 425,428,219 S.E.2d 685,687 (1975). "[I]n determining what constitutes an
unreasonably dangerous defect, a court will consider safety standards promulgated by the
government or the relevant industry, as well as the reasonable expectations of consumers."
Gibson v. Wal-Mart Stores, Inc., 189 F. Supp. 2d 443,447 (W.D. Va. 2002) (quoting
15
Alevromagiros v. Hechinger Co., 993 F.2d 417,420 (4th Cir. 1993)) (internal quotation marks
omitted).
Plaintiff offers no evidence of safety standards or reasonable consumer expectations to
establish that the waterproofer container was unreasonably dangerous. Plaintiff asserts that the
label on the waterproofer proves that it "is an inherently hazardous and toxic substance," but
Plaintiff disavowed any argument that the waterproofer itself was defective. (Pl.'s Resp. at 3.)
Thus, a warning label regarding the container's contents does not support Plaintiffs claim that
the container itself was unreasonably dangerous. Further, Plaintiff does not allege that the
weatherproofer container fell below reasonable consumer expectations, but to the extent that
Plaintiffs own testimony indicates that he believed the weatherproofer container was defective,
"more is required than a plaintiffs personal opinion of a product that allegedly injured h[im]."
Gibson, 189 F. Supp. 2d at 447.
Even assuming, arguendo, that Plaintiff could satisfy the first requirement, Plaintiff fails
to show any evidence establishing the second requirement. In a similar case, another court
granted summary judgment where the plaintiff "d[id] not know how long the container of lighter
fluid was on the shelf prior to her incident, nor d[id] she know how the container came to be in
the state in which she discovered it." Gibson, 189 F. Supp. 2d at 448. The Gibson court
explained that "[t]he law of Virginia does not allow recovery when the plaintiffs theory is
conjectural." Id. (citing Logan, 216 Va. at 428,219 S.E.2d at 687). To prevail in Virginia, the
court continued, "the plaintiff must affirmatively prove her case, if only by excluding all other
explanations." Id.
Critically, Plaintiff fails to prove that his exposure to the waterproofer was due to an
unreasonably dangerous condition that existed when the waterproofer container left Defendant's
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hands. Jeld-Wen. Inc., 256 Va. at 148, 501 S.E.2d at 396. Plaintiff testified that he does not
know how the waterproofer container became damaged, who was responsible forcausing the
damage or how longthe waterproofer container had been damaged. (Sutherlin Dep. 105:4-12.)
In this case, Plaintiff fails to carry his burden of establishing that the waterproofer container was
an unreasonably dangerous product and that the unreasonably dangerous condition existed when
the waterproofer container left Defendant's hands. Because Plaintiff failed to establish aprima
facie claim for products liability under negligent manufacture or any other recognized negligence
theory, the Court grants summary judgment with regard to Count II.
C. Plaintiffs Failure to Warn Products Liability Claim (Count III) Fails, Because
Plaintiff Fails to Establish That Defendant Owed Him a Duty.
Plaintiff argues that Defendant was not required to have knowledge of a dangerous use of
the waterproofer, because of its inherent dangerousness and that Defendant's safety and
HAZMAT procedures establish that Defendant was aware of the risk of a hazardous spill. (PL's
Resp. at 4.) Defendant counters that knowledge is an essential element of a products liability
claim for failure to warn regardless of the particular product defect alleged and that Plaintiff has
failed to produce any evidence showing that Defendant had the requisite knowledge. (Def's
Reply at 6-7.)
To prevail on his failure to warn claim, Plaintiff must establish that Defendant: (1) knew
or had reason to know that the waterproofer was or was likely to be dangerous for its intended
use, (2) had no reason to believe that those for whose use the waterproofer was supplied would
realize its dangerous condition, and (3) failed to exercise reasonable care to inform them of its
dangerous condition or of the facts which made it likely to be dangerous. Featherall v. Firestone
Tire & Rubber Co., 219 Va. 949, 961, 252 S.E.2d 358, 366 (1979) (citing Restatement (Second)
of Torts § 388 (1965)). These elements are well-established and Plaintiff offers no authority in
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support of his argument that he is not required to prove knowledge in light of the waterproofer's
alleged "inherent dangerousness." See Torkie-Tork, 757 F. Supp. 2d at 572 (citing OwensCorning Fiberglas Corp., 243 Va. at 134-36,413 S.E.2d at 634-35) (discussing "unmistakably
clear" rule that "the appropriate standard in Virginia is whether a manufacturer has a reason to
know, not whether the manufacturer should know" of a product's dangerous properties); (PL's
Resp. at 4). The "ha[d] reason to know" standard imposed in products liability claims is
narrower than the "should have known" standard imposed in premises liability claims. Torkie-
Tork, 757 F. Supp. 2d at 572. Therefore, Plaintiff must establish a greater degree of knowledge
to prevail on a failure to warn claim in products liability than the constructive knowledge
required in premises liability. To prove that Defendant "had reason to know" of the alleged
dangerous condition, Plaintiff must produce evidence showing that Defendant "would either
infer the existence of the fact in question [(the container's alleged dangerousness)] or would
regard its existence as so highly probable that [Defendant's] conduct would be predicated upon
the assumption that the fact did exist." Owens-Corning Fiberglas Corp., 243 Va. at 136,413
S.E.2d at 635 (quoting Restatement (Second) of Torts § 12 cmt. a.).
Contrary to his contention that Defendant's HAZMAT procedures show that it was aware
of the risk of a hazardous spill, Plaintiff has failed to produce any evidence indicating that
Defendant had reason to know of the allegedly dangerous condition of the waterproofer
container. Plaintiff himself testified that he had "no idea" when, why or how the alleged defects
in the container developed. (Sutherlin Dep. 105:4-12.) He acknowledged that even when he
leaned the container against his body so that he could more closely inspect it, he could not see
the alleged hole in its lid. (Sutherlin Dep. 102:14-25.) Defendant's employees further testified
that they were unaware of a similar spill in the past. (Def.'s Mem. at 2.) The sole evidence that
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Plaintiff points to in support of his claim is that Defendant had HAZMAT safety procedures that
its employees were supposed to follow in the event of a spill of a hazardous product. (Pl.'s Resp.
at 4-5.) This fact lends no credence to Plaintiffs claim, because it is not at all particularized to
the product in question. That Defendant knows that some of the thousands of products it carries
in its stores are potentially hazardous in no way indicates that it had reason to know of the
alleged defects in the container of this specific product. Because Plaintiff offers no evidence that
Defendant had reason to know that the allegedly defective waterproofer container at issue in this
case existed or posed a risk of spillage, the Court must grant summary judgment on this count as
well. See Celotex Corp., 477 U.S. at 322 (mandating the entry of summary judgment against a
party that, "after adequate time for discovery and upon motion,... fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial").
V.
CONCLUSION
For the reasons set forth above, the Court finds that Plaintiff failed to establish
knowledge as required to prevail on his premises liability claim, did not make out a cognizable
claim for products liability in Count II and failed to establish knowledge as required to prevail on
his failure to warn products liability claim. Accordingly, all three of Plaintiffs negligence
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claims fail. Therefore, the Court GRANTS Defendant's Motion for Summary Judgment (ECF
No. 40).
Let the Clerk file this Order electronically and notify all counsel accordingly.
It is so ORDERED.
/s/
David J. Novak
United States Magistrate Judge
Richmond, Virginia
Dated: December 23. 2014
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