Birch v. Polaris Indus., Inc.

• Decision Date: 23 December 2015
• Docket Number: No. 15–4066.,15–4066.
• Citation: 812 F.3d 1238
• Parties: Justin Harrison BIRCH, individually and as personal representative of the estate of Virl Lane Birch; Joy Finlayson Birch; Jordan Douglass Birch; Colton Bennion Birch, Plaintiffs–Appellants, v. POLARIS INDUSTRIES, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

812 F.3d 1238

Justin Harrison BIRCH, individually and as personal representative of the estate of Virl Lane Birch; Joy Finlayson Birch; Jordan Douglass Birch; Colton Bennion Birch, Plaintiffs–Appellants,

v.POLARIS INDUSTRIES, INC., Defendant–Appellee.

No. 15–4066.

United States Court of Appeals, Tenth Circuit.

Dec. 23, 2015.

Richard Leon Denney, Denney & Barrett, P.C., Norman, OK (Lydia JoAnn Barrett, Denney & Barrett, P.C., Norman, OK; Bradley H. Bearnson and Aaron K. Bergman, Bearnson & Caldwell, P.C., Logan, UT, with him on the briefs), appearing for Appellants.

Ryan L. Nilsen, Bowman and Brooke, LLP, Minneapolis, MN (Nathan J. Marcusen, Bowman and Brooke, LLP, Minneapolis, MN, and Paul G. Cereghini, Bowman and Brooke, LLP, Phoenix, AZ, with him on the brief), appearing for Appellee.

Before MATHESON, EBEL, and McHUGH, Circuit Judges.

MATHESON, Circuit Judge.

Virl Lane Birch died when the off-road vehicle in which he was riding flipped over and pinned him to the ground. His surviving family members sued Polaris Industries, the vehicle manufacturer, for strict products liability, negligence, and breach of warranty, invoking the district court's diversity jurisdiction under 28 U.S.C. § 1332. Arguing there was no evidence Mr. Birch's vehicle was defective at the time of sale, Polaris moved for summary judgment. Well after the deadlines for amending the pleadings and for discovery had passed, Mr. Birch's survivors filed motions (1) to add new theories to their complaint, and (2) for additional discovery. A magistrate judge denied both motions as untimely, and the district court affirmed the magistrate's ruling. Based on the allegations in the unamended complaint, the district court then granted summary judgment to Polaris on all claims.

Mr. Birch's survivors now appeal the district court's denial of their two motions and the grant of summary judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual History

On April 22, 2011, the Polaris Victory dealership in St. George, Utah, sold a 2011 Polaris RZR 800 ("2011 RZR") to Mr. Birch. He and his son, Jordan Birch, took the 2011 RZR—an off-road vehicle—for a ride on May 4, 2011. While they were driving over a road bump, the 2011 RZR tilted over onto its passenger side, face down, injuring Mr. Birch's hand, which was trapped beneath the vehicle.

The crash destroyed the 2011 RZR's roll-over protection structure ("ROPS"), a frame of steel tubes and bars that sits atop the vehicle's passenger cabin. The ROPS, which the parties refer to alternatively as a "roll cage" or "cab frame," is intended to protect passengers "in the event of a pitchover accident." Aplt.App., Vol. 4 at 847. Moto Zoo Powersports in St. George estimated that repairing the ROPS and other damage to Mr. Birch's 2011 RZR would cost $6,008.69.

Unhappy with that figure, Mr. Birch asked Skylar Damron, the Moto Zoo technician who had provided the estimate, to repair the 2011 RZR off book, in Mr. Damron's own garage. Because Mr. Birch was the friend of a friend, Mr. Damron agreed to repair the vehicle for a lower fee. Though he was not a Polaris employee, Polaris had certified Mr. Damron as a master service dealer technician. On June 30, 2011, Mr. Birch sent Mr. Damron an email indicating he would "like to price out" various pieces of equipment, including "[r]oll cage bars." Aplt.App., Vol. 1 at 82. Mr. Damron responded two weeks later with a list of parts he would need to install, one of which was a "2pc roll cage." Id. at 83.

Mr. Damron ordered a new, unused ROPS from a seller on Craigslist.com, whose name Mr. Damron could not remember. The ROPS had been manufactured for use with a 2008 Polaris RZR. Between the 2008 and 2011 model years, Polaris had made several changes to the design of its ROPS. As relevant here, the couplers on the 2011 ROPS—that is, the components that attach the ROPS to the vehicle's main frame—employ a system of indents and raised tabs that interlock with one another. By contrast, the "mating surfaces" on the 2008 ROPS had "flat faces," with no tabs or indents. Aplt. App., Vol. 4 at 818. To fit the new 2008 ROPS onto Mr. Birch's 2011 main frame, Mr. Damron ground off the tabs on the main frame's couplers. Without this modification, the two structures could not have fit together.

On June 4, 2012, Mr. Birch and a friend drove the modified 2011 RZR through Sand Hollow State Park in Washington County, Utah. As they were ascending a sand dune, the vehicle "went airborne a short distance" and pitched forward onto the "downsloping dune face." Aplt.App., Vol. 4 at 814. The ROPS, which buckled on impact, pinned Mr. Birch to the ground. He died shortly thereafter.

B. Background Law

Appellants' claims sounded in strict products liability, negligence, and breach of warranty. Under Utah law, all three claims require proof that a product's injury-causing defect existed at the time the product was sold.

The Utah Court of Appeals has held that to prevail on a strict products liability claim, the "plaintiff 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." Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418 (Utah Ct.App.1994) (emphasis added) (quotation omitted).

It does not appear Utah courts have explicitly applied this requirement to a products liability negligence claim. But the case law indicates no claim for products liability negligence will lie if the defect in question did not exist at the time the product was sold. See Slisze v. Stanley–Bostitch, 979 P.2d 317, 319–20 (Utah 1999) (recognizing negligence action arises out of state statute providing that "[n]o product shall be considered to have a defect or to be in a defective condition, unless at the time the product was sold by the manufacturer or other initial seller, there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer" (quoting Utah Code Ann. § 78–15–6 )).

Similarly, Utah statutory law brings breach-of-warranty claims within the defect-at-time-of-sale rule. The Utah Product Liability Act instructs that

In any action for damages for personal injury, death, or property damage allegedly caused by a defect in a product, a product may not be considered to have a defect or to be in a defective condition, unless at the time the product was sold by the manufacturer or other initial seller, there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer.

Utah Code Ann. § 78B–6–703(1). Because an "action for damages resulting from a defective product can be based on claims of ... breach of warranty," Utah Local Gov't Tr. v. Wheeler Mach. Co., 199 P.3d 949, 951 (Utah 2008), a breach-of-warranty claim fails if the plaintiff cannot show the defect existed when the product was sold.

At oral argument, Appellants conceded Utah law requires a plaintiff to identify an injury-causing defect that existed at the time the product left the defendant's control.

C. Procedural History

1. The Complaint

Justin Harrison Birch, Mr. Birch's son and the personal representative of his estate, together with Mr. Birch's wife and two other sons (collectively, "Appellants"), filed suit against Polaris in the District of Utah on July 3, 2013, seeking damages for strict products liability, negligence, and breach of express and implied warranties. Their complaint defines the product at issue as "a 2011 Razor, Model Ranger RZR 800, VIN # 4XAVY76AXZBB075066 ... which was manufactured by Defendant POLARIS, and purchased by [Mr. Birch] from an authorized Polaris dealer, Polaris Victory of St. George, located in St. George, Washington County, Utah." Aplt.App., Vol. 1 at 27. Throughout the complaint, Appellants allege Polaris "was and is engaged in the business of manufacturing, fabricating, designing, assembling, distributing, selling, inspecting, servicing, warranting, promoting, marketing, modifying and advertising the Model Ranger RZR 800 and each and every component part thereof." E.g., Aplt.App., Vol. 1 at 28.

2. Parties' Discovery of a Modified ROPS

The last day for Appellants to amend their pleadings was December 16, 2013. After two extensions, the district court set a June 6, 2014 deadline for fact discovery.

Appellants' expert Dr. David Renfroe testified he learned in October of 2013 that the ROPS on Mr. Birch's 2011 RZR had been replaced with a ROPS from a different model year, though he could not recall how he learned that fact. Nor could he remember whether he realized at that time that the replacement ROPS was a 2008 model specifically.

Sometime in December 2013, Polaris produced to Appellants the Birch–Damron email correspondence from June and July of 2011.

Polaris deposed Mr. Damron on March 20, 2014. He testified he had purchased the replacement ROPS from an unknown seller on Craigslist.com and that "it was brand-new, it was in the package." Aplt.App., Vol. 1 at 87. Two weeks later, on April 4, 2014, Polaris filed a Notice of Non–Party at Fault, which alleged that "Mr. Damron is at fault and liable to [Appellants] due to his negligent and improper repairs, modifications, and alterations to the subject RZR, specifically the rollover protection structure (‘ROPS')." Id. at 90–91. The Notice indicated that Mr. Damron had installed a replacement ROPS on Mr. Birch's 2011 RZR, in addition to making various other repairs. Polaris asserted in the Notice that "Mr. Damron's negligence caused and/or significantly contributed to [Appellants'] and [Mr. Birch's] alleged injuries and damages." Id. 1 at 90.

On May 1, 2014, Polaris's corporate representative, Aaron Deckard, sat for a deposition. He testified that "[i]f you try to order a 2008 or '9 or '10 cab frame and put it on a 2011 RZR, they won't fit and they're not designed to go together." Aplt.App.,...