Opinion
3-03-CV-880-D
March 1, 2004
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's order of reference filed on January 28, 2004, and the provisions of 28 U.S.C. § 636(b)(1)(B) came on to be considered Defendant's Motion for Summary Judgment filed on November 18, 2003, and Plaintiff's response thereto filed on December 3, 2003, together with the briefing and summary judgment evidence submitted by the parties, and the findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
Plaintiffs Motion to Quash Defendant's Motion for Summary Judgment.
FINDINGS AND CONCLUSIONS:
In his petition, originally filed in the 18th Judicial District Court of Johnson County, Texas, Plaintiff alleges that he purchased a Murray riding mower at a store operated by Defendant on April 1, 2000, which he returned to Defendant's store and that Defendant replaced it. On March 1, 2002, he returned the replacement mower and was told to buy a battery. On or about May 1, 2002, he returned the mower and May 6, 2002, he purchased a generator at Defendant's store which he returned to Defendant on December 18, 2002.
He further alleges that he sustained cardiac injuries and other physical injuries on or about April 1, 2002, which he attributes to the mower purchased from Defendant. He further alleges that Defendant negligently caused his injuries and further claims that Defendant failed to advise that both the mower and the generator were defectively designed and that Defendant knew or should have known of such design defects, but failed to warn Plaintiff of such defects, as a result of which he seeks damages in the amount of $10,000,000.00.
Summary judgment should be granted when the pleadings and evidence establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c); Celotex Corp. v. Catreet, 477 U.S. 317, 322 (1986). There is no genuine issue of material fact when the relevant evidence in the record, taken as a whole, indicates that a reasonable fact-finder could not find for the nonmoving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990).
Plaintiff bears the burden of bringing forward facts as to each element of each claim for which he will have the burden of proof at trial.Celotex, 477 U.S. at 324-325. He must designate specific record facts which establish that there is a genuine issue of material fact. Id.; Slaughter v. Allstate Ins. Co., 803 F.2d 857, 860 (5th Cir. 1986). Neither `conclusory allegations' nor `unsubstantiated assertions' will satisfy the nonmovant's burden. Wallace v. Texas Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996). The opposing party must show that there is sufficient material evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of truth at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see Slaughter, 803 F.2d at 861. Unsupported allegations cannot defeat a properly supported summary judgment motion. Anderson, 477 U.S. at 256. Conjecture and speculation cannot preclude summary judgment. Slaughter, 803 F.2d at 860.
The Fifth Circuit has held that the moving party is entitled to summary judgment when the nonmoving party fails to make a sufficient showing of proof. Fontenot v. Upjohn Co., 780 F.2d 1190-, 1195-98 (5th Cir. 1986). All evidence must be viewed in the light most favorable to the motion's opponent. Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292 (5th Cir. 1990). Summary judgment may be entered against a party if after adequate time for discovery the party fails to establish the existence of an element to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 324-26.
Insofar as Plaintiff seeks to recover damages predicated on a products liability theory of recovery based upon design defects in the purchased products, for each product he must prove the following elements: (1) that the alleged defective product was sold by the Defendant; (2) that there was a safer alternative design; and (3) that the defect was a producing cause of the personal injury for which the plaintiff seeks recovery. Hernandez v. Tokai Corp., 2 S.W.3d 251.156-7(Tex. 1999).
In order to prove a "safer alternative design" a plaintiff must prove "a product design other than the one actually used that in reasonable probability: (1) would have prevented or significantly reduced the risk of the claimant's personal injury . . . without substantially impairing the product's utility; and (2) was economically and technologically feasible at the time the product left the control of the . . . seller by application of existing and reasonably achievable scientific knowledge." Tex.Civ.Prac. Rem. Code § 82.005(b).
Defendant does not dispute the fact that Plaintiff purchased the riding mower and the generator at its store. However, it argues that Plaintiff has no evidence to create issues of fact on the other two elements of a defective design products liability claim.
The summary judgment evidence reflects that Plaintiff has no evidence to support his claim that the generator was defectively designed. See Defendant's Appendix A at pages 8-9. Further, Plaintiff has failed to present any expert opinion evidence sufficient to demonstrate that the riding mower was defective in design and that there was a "safer alternative design" as defined in § 82.005(b).
Plaintiff also concedes that he sustained no injury as a result of using the generator. See Defendant's Appendix A at page 10. The basis for Plaintiff's claim that he sustained any injury from the use of the mower is his contention that after using the mower on or about April 1, 2002, he was diagnosed on April 10, 2002, as having had suffered a heart attack. Plaintiff has presented no competent expert evidence that he was diagnosed with a heart attack. Nor has he presented any evidence to establish that any use of the mower on or about April 1st was a producing cause of any injury. Accordingly Defendant is entitled to summary judgment on Plaintiff's defective design product liability cause of action. It necessarily follows that since Plaintiff has failed to produce any competent evidence that the mower had a defective design, he cannot demonstrate that Defendant or its employees negligently failed to warn him of design defects.
Although Plaintiff's petition alleges that Defendant's premises were unsafe, See Plaintiff's Original Petition at Part VII and Defendant's summary judgment motion brief addresses Texas premises liability law, there is no claim nor summary judgment evidence to show that Plaintiff sustained any physical injury while on premises under Defendant's control. If Plaintiff be complaining of the perceived lack of courtesy by Defendant's employees, it is clear that there exists no cause of action based upon rudeness or lack of good manners.
With respect to Plaintiff's breach of warranty claim, he concedes that no warranty representations were made by Defendant's employees. See Appendix A, supra, at pages 6-7. Plaintiff has not produced any written warranty issued by a third-party. Further, since Plaintiff has not established that either the mower or the generator was defective or otherwise unfit for the ordinary purposes for which they were to be used, he has failed to present prima facie evidence of a breach of an implied warranty of merchantability. See Tex.Bus. and Comm. Code § 2.314.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court grant Defendant's motion for summary judgment, and that Plaintiff's causes of action alleged in this case be dismissed with prejudice.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n. 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.