Scott v. Dorel Juvenile Group, Inc., 010412 FED5, 11-10349

Docket Nº:11-10349
Opinion Judge:PER CURIAM:
Party Name:DELAIN SCOTT, Individually and as Next Friend for Kayden Accardo, Plaintiff-Appellant v. DOREL JUVENILE GROUP, INCORPORATED, also known as Dorel Industries Incorporated, Defendant-Appellee
Judge Panel:Before REAVLEY, SMITH, and PRADO, Circuit Judges.
Case Date:January 04, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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DELAIN SCOTT, Individually and as Next Friend for Kayden Accardo, Plaintiff-Appellant

v.

DOREL JUVENILE GROUP, INCORPORATED, also known as Dorel Industries Incorporated, Defendant-Appellee

No. 11-10349

United States Court of Appeals, Fifth Circuit

January 4, 2012

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:09-CV-799

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM: [*]

I. FACTUAL AND PROCEDURAL BACKGROUND

In April 2006, Plaintiff–Appellant Delain Scott had a baby girl-K.A. Later that year, Bobbie Scott, Delain's mother and K.A.'s grandmother, purchased Defendant–Appellee Dorel Juvenile Group's Safety First 516A latches for Bobbie's kitchen cabinets. The latches that Bobbie purchased can be installed with or without a catch. Bobbie installed the latches without the catch. Bobbie experienced no problems with the latches until April 17, 2007. On that day, Delain and K.A. were over at Bobbie's house. All three of them were in the kitchen with Bobbie and Delain preparing dinner and K.A. playing on the kitchen floor.

Both Bobbie and Delain lost track of K.A. for about thirty to sixty seconds in light of their dinner preparations. Prior to this time, Delain had last seen K.A. sitting on a rug in front of the kitchen sink cabinet drinking from her sippy cup. That cabinet was one of the ones to which Bobbie had installed Dorel's latch. Among other things in that cabinet was a can of Drano Crystals, a drain cleaner. After the thirty- to sixty-second period, Delain looked down to find K.A. foaming from the mouth. Next to K.A. was an open and spilled can of Drano; the kitchen sink cabinet was open. As a result of this accident, K.A. is mute, breathes through a permanent trach in her neck, and can only eat through a feeding tube.

Delain brought the case initially in Texas state court, asserting failure to warn, manufacturing defect, design defect, negligence, gross negligence, and breach of express and implied warranty claims. Defendants Dorel and S.C. Johnson & Son (Drano's manufacturer) removed the case to the United States District Court for the Northern District of Texas. S.C. Johnson settled with Delain. Dorel moved for summary judgment, which the district court granted on all claims. Delain appeals the district court's summary judgment order only as to the design defect, negligence (including gross negligence), and breach of express and implied warranty claims.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review a district court's grant of summary judgment de novo, applying the same standards as the district court. Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 124 (5th Cir. 2011). Summary judgment is appropriate where the movant shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Fed.R.Civ.P. 56(a)). In reviewing the record, all facts and inferences are construed in the light most favorable to the non-movant. Id. However, "[i]f the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, then there is no genuine issue for trial." Id. (internal quotation marks omitted).

Where, as here, federal jurisdiction is based on diversity, we apply the substantive law of the forum state. Aubris Res. LP v. St. Paul Fire & Marine Ins. Co., 566 F.3d 483, 486 (5th Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–79 (1938)) (additional citation omitted). In resolving issues of Texas law, we look to the decisions of the Texas Supreme Court. Packard v. OCA, Inc., 624 F.3d 726, 730 (5th Cir. 2010). If there is no decision directly on point, then we must determine how that court, if presented...

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