Brown v. Sears, Roebuck & Co.

• Decision Date: 14 May 2003
• Docket Number: No. 01-4226.,01-4226.
• Citation: 328 F.3d 1274
• Parties: Chani BROWN, individually, and as guardian of her minor son, Kelton Brown, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., a New York corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

328 F.3d 1274

Chani BROWN, individually, and as guardian of her minor son, Kelton Brown, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., a New York corporation, Defendant-Appellee.

No. 01-4226.

United States Court of Appeals, Tenth Circuit.

May 14, 2003.

COPYRIGHT MATERIAL OMITTED

Peter W. Summerill (James R. Hasenyager, with him on the briefs), Ogden, UT, for Plaintiff-Appellant.

James M. Brogan of Piper Marbury Rudnick & Wolfe LLP, Philadelphia, PA (Nancy Shane Rappaport of Piper Marbury Rudnick & Wolfe LLP, Philadelphia, PA, and Tracy Fowler of Snell & Wilmer LLP, Salt Lake City, UT, with him on the brief), for Defendant-Appellee.

Before TACHA, Chief Judge, HARTZ, and O'BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

This appeal concerns a product liability action governed by Utah law. Plaintiff Chani Brown sues individually and on behalf of her son, Kelton, who suffered injuries when he was backed over by a riding lawnmower. Plaintiff alleges that the lawnmower, sold by Defendant Sears, Roebuck & Company, was defective in design. She relies on strict liability and negligence theories. On September 26, 2001, the district court entered summary judgment in favor of Sears, finding that Plaintiff had presented insufficient evidence in support of her claims. Plaintiff appeals the district court's ruling. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Background

The accident occurred on July 22, 1998, while Andrew McManus was using a Sears Craftsman lawn tractor. Just before Andrew began to mow his family's yard, his two-year-old nephew Kelton asked if he could ride on the tractor. Andrew declined to give him a ride. Andrew started mowing, and Kelton walked to a different area of the yard to play with some toys. Some time later, Kelton approached the tractor and again asked if he could go for a ride. Andrew replied, "No, go in the house." When Andrew resumed mowing the lawn, Kelton grew frustrated. He picked up grass clippings and threw them at Andrew whenever the tractor passed by him.

In the midst of mowing, Andrew noticed that he had failed to cut a patch of grass in an area he had just covered. He decided to back up the tractor in order to mow the grass he had missed. He checked behind his left and right shoulders and then shifted the mower into reverse. As he rode in reverse, he focused his attention downward at the discharge chute on the side of the mower. Andrew had been mowing backward for about five feet when Kelton's slipper flew out of the discharge chute. Andrew turned around to look for Kelton and saw that he was underneath the lawn mower, screaming. After turning the mower blades off, Andrew drove forward, off of Kelton. He stopped the tractor's engine, briefly examined Kelton, and then ran for help.

Kelton suffered injuries to his left leg and foot, resulting from contact with the rotating mower blades. His first and second toes were amputated, and he also received severe wounds on his left knee and lower thigh. Following the accident, Plaintiff filed a product liability suit against Sears, alleging that the lawnmower had a design defect resulting in her son's injuries.

William McManus, Andrew McManus's father, bought the four-wheeled lawn tractor at a Sears store in April 1997. Although Sears sells the product under the Sears Craftsman label, the company did not design or manufacture the product. Underneath the tractor, between the front and back wheels, is a mower deck containing two blades. The person operating the tractor can use a lever next to the seat to raise and lower the mower deck, and a lever on the dashboard to engage and disengage the mower blades.

Central to Plaintiff's claims is the capacity of the tractor to operate in reverse while the mower blades are engaged. According to Plaintiff, allowing operators to mow in reverse exacerbates a well-known hazard associated with reverse travel on lawn tractors. When riding backwards, operators have difficulty seeing small children who are standing within two feet of the rear of the tractor. Plaintiff maintains that if a tractor backs into a child while the mower blades are rotating, the child sustains worse injuries than if the tractor backs into a child while the blades are turned off.

In Plaintiff's view, such backover blade-contact injuries are a preventable risk. A lawnmower can be equipped with a safety feature that keeps operators from traveling in reverse with the mower blades engaged. Plaintiff contends that this feature substantially reduces the chances that children will suffer blade-contact injuries in backover accidents. Plaintiff's complaint alleges that the absence of this safety feature rendered the riding lawnmower unreasonably dangerous.

Sears moved for summary judgment, arguing that Plaintiff was unable to satisfy the requirements for a strict products liability action. Under Utah's "consumer expectations" test, Sears maintained, Plaintiff would have to show that the mower was more dangerous than an ordinary user would anticipate, and Plaintiff had failed to meet this burden. Plaintiff responded that her claim should not be assessed under a conventional consumer expectations test, because the injured party in this case was a bystander, rather than a user of the product. Plaintiff asserted that she had established a claim for strict products liability by showing that the risks of the mower's design outweighed the benefits of the design, and that the mower could have been made safer through the adoption of the alternative design she proposed.

The district court granted Sears' motion for summary judgment. In explaining its ruling, the district court cited several deficiencies in Plaintiff's case, including: (1) Sears provided clear warnings about the potential for accidents involving small children; (2) the accident was the fault of the operator; (3) Plaintiff's expert's testimony concerning safety devices that might have prevented the accident did not establish that the mower was defective in design; and (4) Plaintiff had failed to offer adequate proof that Kelton's injuries would have been less severe had the mower been equipped with a no-mow-in-reverse device.

Plaintiff appeals the summary judgment. Because this is a diversity case, we apply the substantive tort law of Utah. We follow federal law, however, regarding the standard for granting summary judgment. Eck v. Parke, Davis & Co., 256 F.3d 1013, 1016 (10th Cir.2001). Accordingly,

[w]e review the entry of summary judgment de novo, drawing all reasonable inferences in favor of the nonmovants. The moving party must show there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. The nonmovant must establish, at a minimum, an inference of the existence of each element essential to the case.

Boykin v. ATC/VanCom of Colo., L.P., 247 F.3d 1061, 1063 (10th Cir.2001) (internal citations and quotation marks omitted).

II. Discussion

The Utah Supreme Court recently observed that "[a]lternative theories are available to prove different categories of defective product, including negligence, strict liability, or implied warranty of merchantability." Bishop v. GenTec Inc., 48 P.3d 218, 225-26 (Utah 2002), citing Restatement (Third) of Torts: Products Liability § 2 cmt. n (1997) (Restatement Third). In this case Plaintiff draws on both strict liability and negligence theories in contending that the Sears Craftsman lawn tractor contained a design defect. We address Plaintiff's strict liability claim and then her negligence claim.

A. Strict liability

The law governing strict products liability in Utah has two sources: the common law and a statute, Utah Code Ann. § 78-15-6. Although some reported opinions refer to both sources, see, e.g., Lamb v. B & B Amusements Corp., 869 P.2d 926, 929 (Utah 1993); House v. Armour of Am., Inc., 886 P.2d 542, 547 (Utah Ct.App.1994), the Utah courts have devoted virtually no attention to examining the interrelationship between the statute and the common law. In light of the parties' arguments on appeal, that task cannot be avoided here.

We begin with the statute. The Utah Product Liability Act, § 78-15-6, provides:

In any action for damages for personal injury, death, or property damage allegedly caused by a defect in a product:

(1) No 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.

(2) As used in this act, "unreasonably dangerous" means that the product was dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer or user of that product in that community considering the product's characteristics, propensities, risks, dangers and uses together with any actual knowledge, training, or experience possessed by that particular buyer, user or consumer.

Our first observation is a point not noted by the parties: The statute does not create a cause of action. It sets limits on any cause of action created by some other source of law. It states that in a products liability suit, a product will be regarded as defective only if at the time of sale the product was "unreasonably dangerous," as defined by subsection (2) of the statute. The statute thus imposes a necessary condition for a cause of action. The statute does not state what is sufficient for a cause of action. Because Utah does not have another statute setting forth the elements of a products liability cause of action, the sufficient conditions for such a cause of action must come from the common law.

Utah first recognized a common-law cause of action for strict products liability in Ernest W. Hahn, Inc., v. Armco Steel Co., 601 P.2d 152, 156-58 (Utah 1979). Hahn followed Restatement (Second) of Torts § 402A (1965) (Restatement...