Grubb v. Do It Best Corp.

• Decision Date: 04 May 2012
• Docket Number: No. 2 CA–CV 2011–0140.,2 CA–CV 2011–0140.
• Citation: 633 Ariz. Adv. Rep. 40,279 P.3d 626,230 Ariz. 1
• Parties: Briza GRUBB, individually and as surviving spouse of Michael Grubb; Briza Grubb for and on behalf of her minor children, Alexandro Grubb and Emily Grubb; Briza Grubb as Personal Representative of the Estate of Michael Grubb, Plaintiffs/Appellants, v. DO IT BEST CORPORATION, an Indiana corporation, Defendant/Appellee.
• Court: Arizona Court of Appeals

230 Ariz. 1

279 P.3d 626

633 Ariz. Adv. Rep. 40

Briza GRUBB, individually and as surviving spouse of Michael Grubb; Briza Grubb for and on behalf of her minor children, Alexandro Grubb and Emily Grubb; Briza Grubb as Personal Representative of the Estate of Michael Grubb, Plaintiffs/Appellants,

v.DO IT BEST CORPORATION, an Indiana corporation, Defendant/Appellee.

No. 2 CA–CV 2011–0140.

Court of Appeals of Arizona, Division 2, Department A.

May 4, 2012.

Penilla Metzger, PLLC by Nathan T. Metzger and Perry E. Casazza, Phoenix, Attorneys for Plaintiffs/Appellants.

Lewis Brisbois Bisgaard & Smith, LLP By James K. Kloss and Felice F. Guerrieri, Phoenix, Attorneys for Defendant/Appellee.

HOWARD, Chief Judge.

¶ 1 Appellant Briza Grubb ¹ appeals from the trial court's grant of summary judgment in favor of appellee Do It Best Corporation (DIB) in a wrongful death action, arising from the death of Michael Grubb from injuries caused by a propane gas space heater. On appeal, Grubb contends the court erred by finding no issue of material fact on her product liability and negligence claims. Because the court correctly applied the law, we affirm.

Factual and Procedural Background

¶ 2 “We view the facts and the inferences to be drawn from those facts in the light most favorable to the party against whom [summary] judgment was entered.” Mousa v. Saba, 222 Ariz. 581, ¶ 15, 218 P.3d 1038, 1042 (App.2009). Michael Grubb was seriously injured in an explosion while trying to install a space heater. He later died from his injuries. Grubb sued various parties including several DESA corporations (DESA) as manufacturer of the heater, B & D Lumber and Hardware (B & D) as seller of the heater, and DIB as “the seller and/or wholesaler” of the heater. The trial court granted DIB's motion to file a cross-claim against DESA. DIB moved for summary judgment on its claims for indemnity and declaratory relief against DESA, which the court granted. DIB then moved for summary judgment as to Grubb's claims. After a hearing, the court granted summary judgment in favor of DIB. Following further motions and a hearing, the court entered judgment in favor of DIB pursuant to Rule 54(b), Ariz. R. Civ. P. This appeal followed.

Standard of Review

¶ 3 Grubb contends the trial court erred in granting summary judgment on both her product liability and negligence claims. “On appeal from a summary judgment, we must determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law.” Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 8, 965 P.2d 47, 50 (App.1998) (emphasis omitted). Summary judgment is required where “there is no genuine issue as to any material fact.” Ariz. R. Civ. P. 56(c)(1). Our supreme court has interpreted this rule to mean that, “if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense,” summary judgment should be granted. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). We will affirm the trial court's grant of summary judgment if it is correct for any reason. Hawkins v. State, 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (App.1995).

Product Liability

¶ 4 Grubb argues the trial court erred in granting summary judgment in favor of DIB on her product liability claim. She contends that because DIB was part of the chain of distribution “controlling Arizona case law ... mandates that DIB is, at least in some degree, at fault.”

¶ 5 Subject to statutory exceptions not relevant here, seeA.R.S. § 12–681, sellers may be held strictly liable for harm caused by defective and unreasonably dangerous products they have sold, Antone v. Greater Ariz. Auto Auction, 214 Ariz. 550, ¶ 11, 155 P.3d 1074, 1076 (App.2007). Section 12–681(9), for purposes of that article, defines a seller as “a person or entity, including a wholesaler, distributor, retailer or lessor, that is engaged in the business of leasing any product or selling any product for resale, use or consumption.” Although Arizona courts have defined seller broadly, in accordance with the policies underlying strict liability, they have excluded from liability entities which do not participate significantly in the stream of commerce and do not have “ ‘the right to control the incidents of manufacture or distribution.’ ” Antone, 214 Ariz. 550, ¶¶ 12, 33, 155 P.3d at 1076–77, 1080,quoting Torres v. Goodyear Tire & Rubber Co., 163 Ariz. 88, 96, 786 P.2d 939, 947 (1990). And the Restatement (Third) of Torts: Product Liability § 20 cmt. g (1998), notes that “product distribution facilitators” such as parties who advertise or finance products, are not strictly liable.²See Powers v. Taser Int'l, Inc., 217 Ariz. 398, ¶ 19, 174 P.3d 777, 781–82 (App.2007) (Arizona courts follow Restatement “[a]bsent controlling Arizona law to the contrary”).

¶ 6 In Antone, we considered whether a commercial auctioneer was subject to strict liability as a seller. 214 Ariz. 550, ¶¶ 8, 13, 155 P.3d at 1075, 1077. We concluded the auctioneer did not participate significantly in the stream of commerce because it merely provided a service to other parties in the stream of commerce. Id. ¶¶ 26, 33. We considered the fact that the auctioneer's fees did not depend on the condition of the product or its selling price and mostly were used to pay operating costs. Id. ¶ 26. We also noted that, although the auctioneer may have had temporary physical possession, it never owned or inspected the product, or provided a warranty as to the product's condition. Id. ¶ 27. Finally, the auctioneer had “no special relationship” or continuing contact with a manufacturer which would permit it to affect the safety of the product. Id. ¶ 28.

¶ 7 Similarly, in Dillard Department Stores, Inc. v. Associated Merchandising Corp., 162 Ariz. 294, 296, 782 P.2d 1187, 1189 (App.1989), the appellant argued a product broker was strictly liable for a defective product because the broker was in the chain of distribution. This court considered various factors, including that the broker: never owned or possessed the product; never exercised control over the product; “provide[d] a service to retailers, rather than specific goods to the public”; did not directly benefit from the transaction at issue; would not have been responsible for a product lost or damaged in transit; and did not create consumer reliance in the product. Dillard Dep't Stores, 162 Ariz. at 298, 782 P.2d at 1191. We concluded the broker lacked the “ ‘participatory connection’ ” required to give rise to strict liability as a seller. Id.

¶ 8 Additionally, in Joseph v. Yenkin Majestic Paint Corp., 173 Misc.2d 95, 661 N.Y.S.2d 728, 730 (N.Y.Sup.Ct.1997), affirmed in part by261 A.D.2d 512, 690 N.Y.S.2d 611 (N.Y.App.Div.1999), the New York court considered a product liability case with facts similar to this situation. The defective product had been delivered via a “drop-ship order.” Joseph, 661 N.Y.S.2d at 730. Member stores of a paint organization could order items from the defendant's warehouse or, if the item was not stocked in the warehouse, could order directly from the vendors, in a drop-ship order. Id. When a member store ordered directly from the vendor, the vendor would bill the defendant who, in turn, would pass the invoice to the member store. Id. The defendant did not profit from a drop-ship order. Id. The court held the defendant's conduct was ministerial and “the fact that [the defendant] was designated on invoices as the party to be billed is too tangential to the distribution of the product.” Id. at 731.

¶ 9 DIB is a cooperative of hardware stores and B & D is a member of the cooperative. DIB negotiates prices with vendors on behalf of member stores and then permits member stores to purchase products from DIB's warehouses or to order products directly from vendors in a drop-ship order. DIB retains a small fee from every item sold directly from the vendor to the member store, however most of the fee is rebated to member stores or covers the cost of billing. In this case, B & D placed an order directly with DESA for the heater. DESA confirmed with DIB that it would guarantee payment, and then DESA shipped the heater directly to B & D. The invoice from DESA to DIB states it was “sold to” B & D and to “bill to” DIB. DIB later billed B & D for items purchased from various manufacturers, including the heater.

¶ 10 DESA was a vendor with DIB for thirty or forty years. However, at the time of the drop-ship order, DESA was “one of several [vendors of] gas wall heaters ... made available” to DIB members. And although Grubb presented evidence that DIB could decide to stop carrying a vendor's products, she has not cited to any evidence that DIB had the ability to alter DESA's product design or packaging. Moreover, a manager for B & D testified that nobody in the area was familiar with the name DIB, but instead people still refer to B & D by a name resulting from its former association with a different organization.

¶ 11 We conclude DIB did not participate significantly in the stream of commerce as to this particular heater. DIB never owned or possessed the heater.³ As in Joseph, B & D ordered the heater directly from DESA and DESA shipped it directly to B & D. See661 N.Y.S.2d at 730. Similarly, the invoice sets forth that the heater was “sold to” B & D and merely lists DIB as the party to bill. Grubb has not pointed to any evidence that DIB provided a warranty for the heater or would have been responsible if it had been lost or damaged in transit. See Dillard Dep't Stores, 162 Ariz. at 298, 782 P.2d at 1191. DIB provided a service to B & D by permitting it to order from DESA as a DIB member and by collecting B & D's bills into a single invoice. See Dillard Dep't Stores, Inc., 162 Ariz. at 298, 782 P.2d at 1191. Despite the fact that DIB...