Geshke v. Crocs, Inc.

• Decision Date: 07 September 2012
• Docket Number: Civil Action No. 10–11567–RGS.
• Citation: 889 F.Supp.2d 253
• Parties: Nancy GESHKE, individually and as guardian of N.K., a minor v. CROCS, INC.
• Court: U.S. District Court — District of Massachusetts

889 F.Supp.2d 253

Nancy GESHKE, individually and as guardian of N.K., a minor

v.CROCS, INC.

Civil Action No. 10–11567–RGS.

United States District Court,

D. Massachusetts.

Sept. 7, 2012.

Miles Siegel, Law Offices of Miles Siegel, Mark B. Lavoie, McDonough, Hacking & Lavoie, LLC, Boston, MA, Andrew M. Laskin, Joel H. Robinson, Robinson & Yablon, P.C., New York, NY, for Nancy Geshke, Mother and Natural Guardian of N.K. a Minor and Individually.

Jeanne O. McHugh, Engelberg, Bratcher, Whalen & Kenner, Boston, MA, Julie M. Walker, McElroy, Deutsch, Mulvaney & Carpenter LLP, Greenwood Village, CO, for Crocs, Inc.

MEMORANDUM AND ORDER ON CROCS, INC.'S MOTION FOR SUMMARY JUDGMENT

STEARNS, District Judge.

This case arose from a regrettable accident on an escalator at the Massachusetts Bay Transportation Authority (MBTA) Aquarium Station. N.K., an eight-year-old girl, caught her shoe in the side skirt of the escalator, injuring her toe. N.K.'s shoe was a popular clog design marketed under the trade name CROCS, by Crocs, Inc. (Crocs), a Delaware corporation with an expansive worldwide distribution network. A five-count Complaint brought on N.K.'s behalf by her mother, Nancy Geshke, alleges a design defect in the CROCS shoe and a failure on the part of Crocs to warn of the latent danger CROCS shoes posed to young children riding escalators.¹

Discovery now being complete, Crocs moves for summary judgment. Crocs contends that Geshke's failure to support her claim of a design defect (or the feasability of an “alternative ‘safer’ design”) with expert testimony precludes a jury finding of liability. With respect to the failure-to-warn claim, Crocs maintains that Geshke's disregard of the conspicuous warnings posted by the MBTA at the entrance to the escalator obviates any suggestion that an earlier (and redundant) admonition from Crocs would have influenced Geshke's conduct, and through her, that of N.K.

Geshke contends that expert testimony is unnecessary because Crocs itself—in response to prior accidents and the “irrefutable testing and findings of the Japanese government”—has shown that it is possible to design a safer version of the CROCS shoe. Opp'n Mem. at 1–2. Moreover, Geshke alleges that she would never have purchased the CROCS for N.K. had she known of the risk of the shoe becoming entangled in an escalator. Geshke maintains that her testimony to that effect is sufficient to meet her burden of raising a jury-worthy issue of disputed fact on the issue of causation.

BACKGROUND

The following undisputed facts are taken from Crocs's Statement of Facts (SOF)—Dkt # 61, and Geshke's Statement of Additional Facts (SOAF)—Dkt # 64.

In July of 2010, Nancy Geshke, eight-year-old N.K., her nine-year-old brother, and their father, Dr. Peter Kerndt (Nancy Geshke's husband), visited Boston on a vacation trip. On July 19, 2010, the Geshke family boarded an MBTA escalator at the Aquarium Station carrying patrons to the lower-level train platform. There were conspicuous warnings posted at the entrance to the escalator. A bright yellow sign depicted a woman standing next to her child on an escalator and holding the child's hand, accompanied by the following text:

CAUTION—Passengers Only—No Bare Feet—Hold Handrail—Attend Children—Avoid Sides.

A second yellow warning sign cautioned:

SAFETY RULES—1. No Strollers; 2. Hold handrails; 3. Keep tennis shoes away from sides; 4. No bare feet; 5. Always face forward; 6. No children unattended. PARENTS—Your children must obey these rules.

While Nancy Geshke and her husband do not dispute the presence of the warning signs, they each testify as to having no memory of having seen them.² They do admit to having seen similar warning signs while riding escalators elsewhere.

As the Geshke family stepped onto the escalator, N.K. and her brother went first, several steps ahead of their parents. N.K. was approximately five steps (one witness testified that she was three steps) in front of her mother. Nancy Geshke testified that at ages eight and nine, she felt the children were mature enough to ride the escalator without adult supervision. As the escalator descended, N.K.'s right foot became caught between the moving step and the escalator's static side skirt. Nancy Geshke could see her daughter's right foot “contorted, turned, and standing up” at a 90 degree angle. Geshke Dep. at 57.

Hearing N.K. scream, Waleata Odware, an MBTA employee at Aquarium Station, saw N.K. with her right CROC trapped in the side skirt of the escalator. Odware could see that N.K.'s foot was still in the shoe. Her foot had been twisted sideways as the escalator pulled her downward. Fearing that N.K. might be dragged into the comb plate at the bottom of the escalator, Odware attempted to halt the escalator, but was unable to engage the braking mechanism. N.K.'s father also frantically pressed the escalator's emergency stop button, but with no immediate result.

Alan Dumont, a fellow passenger, witnessed the accident. As he reached the bottom of the escalator, he heard screaming. He turned and saw N.K. and her mother. It was apparent that N.K.'s foot had been caught in the escalator. After a futile attempt to engage the emergency stop button, Dumont ran up the adjacent staircase to assist Nancy Geshke in freeing N.K.'s foot. Dumont saw that N.K.'s “right shoe got ingested and pulled her toe, her big toe into the side of the escalator.” Pl.'s Ex. 4.—Dumont Dep. at 9. Dumont testified that, at that point, “we were in a panic. It was coming to the end of the runoff....” Id. In an effort to stop the escalator, Dumont, with as much force as he could summon, jammed the heel of his right sneaker into the side aperture of the moving escalator. Ultimately, Dumont was able to extricate N.K.'s foot from her shoe. He testified that “[t]he mother seemed to be overcome by anxiety or the situation, I helped lift her up, she was about to faint, and I pulled the mother to the side, and I was telling her that her daughter was okay.” Id. The escalator came to a stop some 15 to 20 seconds after N.K.'s foot was freed.

In the aftermath of the accident, John Flynn, a KONE Corporation (the manufacturer and installer of the escalator) mechanic, responded to an MBTA service call.³ Flynn inspected the escalator and found it to be in “safe working order.” He contacted an inspector at the Massachusetts Department of Public Safety, who gave permission to put the escalator back in service. See Pl.'s Ex. 6—Flynn Dep. at 51, 65, and 78–79.

In May of 2008, the Japanese Ministry of Economy, Trade and Industry (METI) issued a “Findings Report for Study of Sandal Entrapment Accidents in Escalators.” The study was conducted by Japan's National Institute of Technology and Evaluation (NITE). The study analyzed various types of footwear “and their relation to escalator entrapment.” ⁴Id. at 1. It was prompted by “the alarming frequency of these accidents”—“a total of 66 ... as of the end of March [of 2009].” Id. The style of shoe that appears to most resemble a CROCS was identified in the study as a “resin sandal.” NITE's testing determined that a sandal shoe design figured in 65 of the 66 entrapments that had been reported. NITE conducted thousands of tests on resin sandals, rubber boots, sneakers, and flip-flop sandals using different models of escalators. Of the 66 entrapments NITE was able to replicate, all but two involved resin sandals. Id. at 14–18. Video footage of NITE's testing includes a sandal with what appears to be the “CROCS” brand name stamped on its foot strap, being turned and stuck in the side of an escalator, although the report does not identify the CROCS make by name. See Pl.'s Ex. 9.

In the wake of the study, on May 1, 2008, Shigeo Moridaira, the general manager of Crocs–Japan, emailed his colleagues in the United States describing “one of the urgent and most important requests,” namely, METI had requested that Crocs develop a “harder cros-lite” material for its footwear marketed in Japan and that it find a “more less friction cubic dip film or paint.” Pl.'s Ex. 11. He added that because of the “escalator issue Ministry asked us to start selling new products which can reduce accident by end of July ... mid of May they want to test with those samples.” Id.

On May 14, 2008, John McCarvel, then Crocs's Vice–President for Asia and worldwide management,⁵ sent an email to his subordinates in Crocs–Japan, attaching photographs to be used at the “meeting with METI on Thursday” showing Crocs's “redesign” of the CROCS shoe. See Pl.'s Ex. 12 at 1. On July 15, 2008, Megan Welch, Crocs's senior director of merchandising, told McCarvel and Erik Olson ⁶ that the new CROCS design would take into account “friction [as] the most important factor,” and that the re-design would incorporate “increased hardness.” Ultimately, Crocs decided against a recall of its Japan stock of the original design CROCS shoes because the “[M]inistry has not asked us to pull the current product, they have just asked us to bring a safer, improved product to market.” ⁷ Welch further wrote that Crocs's redesigned footwear “should suffice as a long term solution,” which it intended to “propose to [the] Japanese ministry showing test results of changes in friction, hardness, etc.” ⁸

On August 8, 2008, Olson and others on Crocs's Engineering Change Committee were asked to approve (or reject) an Engineering Change Order (ECO) as a prelude to releasing the redesigned CROCS “Kids Blaze” shoe in Japan and (“later”) in “other countries in Asia.” ⁹ According to the ECO, the Kids Blaze would be made of a harder material and coated with a matte (non-glossy) finish. The Kids Blaze would also be sold with an escalator warning hangtag. The Kids Blaze was introduced in Japan as an alternative to the traditional CROCS model shoe, but was later pulled from the market because almost no one wanted to buy it.

Sarah DiMartino, currently the manager of Crocs's customer service department, testified...