Isgett by and through Isgett v. Wal-Mart Stores

• Decision Date: 30 June 1997
• Docket Number: Civil Action No. 3:96-CV-325WS.
• Citation: 976 F.Supp. 422
• Parties: Ashleigh Lynn ISGETT, By and Through her mother and next friend, Mary Ellen ISGETT, and Tasha Necol Luke, by and through her mother and next friend, Susan Anne Willis, Plaintiffs, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — Southern District of Mississippi

976 F.Supp. 422

Ashleigh Lynn ISGETT, By and Through her mother and next friend, Mary Ellen ISGETT, and Tasha Necol Luke, by and through her mother and next friend, Susan Anne Willis, Plaintiffs, v. WAL-MART STORES, INC., Defendant.

Civil Action No. 3:96-CV-325WS.

United States District Court, S.D. Mississippi, Jackson Division.

June 30, 1997.

C. Ray Scales, Jr., C. Ray Scales, Jr. & Associates, Jackson, MS, for Plaintiffs.

Edley H. Jones, III, Kirkland & Barfield, Jackson, MS, for Defendant.

MEMORANDUM OPINION AND ORDER

WINGATE, District Judge.

Before the court is motion of defendant Wal-Mart Stores, Inc., for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.¹ This matter arises out of an accident involving two minors, Ashleigh Lynn Isgett and Tasha Necol Luke, who allegedly were injured when plaintiff Luke slipped on a substance known as "Silly String" sprayed on the shelves and on the floor in defendant's Pearl, Mississippi, store location. In their complaint, plaintiffs claim that by displaying a can of "Silly String" for sale on the bottom shelf in its Pearl, Mississippi, store, defendant violated Title 15 U.S.C. § 1261, et seq., commonly known as the Federal Hazardous Substance Act (hereinafter FHSA), the regulations promulgated thereto, Title 16 C.F.R. § 1500.1, et seq., and that said violation constituting negligence per se proximately caused the accident at issue. For the injuries allegedly sustained, plaintiffs seek compensatory damages in the amount of $1,000,000.00 and punitive damages in the amount of $5,000,000.00. Persuaded that the applicable law as applied to the undisputed material facts does not support plaintiffs' claim, this court is persuaded to grant the summary judgment motion for the reasons which follow.

I. PARTIES AND JURISDICTION

Plaintiffs Ashleigh Lynn Isgett and Tasha Necol Luke, both minor resident citizens of Rankin County, Mississippi, bring this action by and through their mothers and next friends, Mary Ellen Isgett and Susan Anne Willis, respectively, who also are resident citizens of Rankin County, Mississippi.²

Defendant Wal-Mart Stores, Inc., is a nonresident corporation domiciled in the State of Delaware, but licensed to do business in the State of Mississippi.

This court has jurisdiction of this matter pursuant to Title 28 U.S.C. § 1331³ (federal question) and Title 28 U.S.C. § 1332⁴ (diversity of citizenship).

II. PERTINENT FACTS

Sometime prior to March 27, 1993, defendant displayed a canned novelty item for sale to the general public labeled "Extra Thick Super String," commonly referred to as "Silly String." On March 27, 1993, at approximately 5:30 p.m., plaintiffs, with their mothers and two other children entered defendant's Pearl, Mississippi, store to do some shopping. Plaintiff Ashleigh Isgett was placed in the child seat of a shopping cart which was being pushed by plaintiff Tasha Luke. At the time, Ashleigh was six years old and Tasha was thirteen years old. Eventually, the group split up; the children went to the toy department and the adults went to another part of the store.

According to plaintiffs, Ashleigh and Luke and the other children went through the aisle of the toy department looking at the toys on the shelf. Plaintiffs say they observed in the toy department no people, such as Wal-Mart employees or other adults, other than three boys engaged in horse play by the bicycle rack, which, according to Tasha, was directly across from the aisle where the Silly String was displayed on the bottom shelf. As Tasha pushed the shopping cart down one aisle in particular, she went to turn a corner and she stepped in what she describes as a "puddle of water." Tasha says she slipped in the puddle and began to fall. To break her fall, Tasha says she grabbed the shopping cart in which Ashleigh sat, causing the shopping cart to shoot down the aisle at a high rate of speed. The shopping cart hit the center aisle, flipped over, threw Ashleigh from the child seat and landed on top of her leg, breaking it. Meanwhile, Tasha had landed on her back, allegedly suffering bruises and pulled muscles.

After slipping, Tasha claims that since the back of her shirt was soaking wet, she looked around to determine the source of the wetness. According to Tasha, she saw some Silly String sprayed on a shelf near where she had slipped and that the Silly String had dripped to the floor. She says she also noticed cans of Silly String, not in their usual places, sitting on top of some toys. Ashleigh's testimony purportedly corroborates Tasha's assertions, since Ashleigh claims that while lying on the floor, she also saw an open can of Silly String under the display shelves.

III. SUMMARY JUDGMENT STANDARD

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure,⁵ summary judgment is appropriate if the record discloses "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Evans v. City of Marlin. Texas, 986 F.2d 104 (5th Cir.1993). "If reasonable minds might differ on the resolution of any material fact or even the inferences arising from undisputed facts, summary judgment must be denied." Anthony v. Petroleum Helicopters, Inc., 693 F.2d 495, 496 (5th Cir.1982). On the other hand, summary judgment is mandated in any case where either a party fails to establish the existence of an element essential to the case and on which that party has the burden of proof, Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), or if the evidence favoring the non-moving party is insufficient for a jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). So, then, the court's function at the summary judgment stage is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Id.

In reviewing the propriety of summary judgment, this court must look to the pleadings, depositions, admissions and answers to interrogatories, as well as affidavits to determine whether a genuine issue of material fact exists. Evans, 986 F.2d at 107. When the moving party has carried the Rule 56(c) burden, that is, proved that no genuine issue of material fact exists, the opposing party must present more than a metaphysical doubt about the material facts in order to preclude the grant of summary judgment. Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Accordingly, the nonmovant must set forth specific facts showing that there is a genuine issue for trial. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party fails to establish the existence of an element essential to the case on which said party has the burden of proof, this court is required to enter summary judgment in the moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). However, where there is reasonable doubt as to whether a genuine issue of material fact exists, the court must resolve all reasonable doubts against the movant. Byrd v. Roadway Express, Inc., 687 F.2d 85, 87 (5th Cir. 1982).

IV. ANALYSIS

Plaintiffs bring this action pursuant to the Federal Hazardous Substances Act found at Title 15 U.S.C. § 1261, et seq., (hereinafter FHSA), regulations promulgated thereto, Title 16 C.F.R. § 1500.1, and under a theory of negligence per se.

According to plaintiffs, Silly String is contained in a small metal pressurized can and is propelled from the can by aerosol propellants. Although intended as a toy for use by children, say plaintiffs, the product bears the following instructions and warnings on its label:⁶

PLEASE SHAKE WELL BEFORE USING. Directions: For best results, shake can vigorously both before and during use. To avoid sticking, spray SUPER STRING at a distance of at least 10 ft.

WARNING: Please use only as directed. Although nontoxic do not ingest product. Do not spray toward face or in eyes. Do not spray near fire o[r] flames. Contents under pressure. Do not puncture or incinerate container. Do not expose to heat or store at a temperature above 120 [degrees] F. KEEP OUT OF REACH OF CHILDREN, EXCEPT UNDER ADULT SUPERVISION.

Plaintiffs contend that if the Silly String container is not shaken well, as directed, the clear and extremely slippery aerosol propellant comes out of the can without the string. Plaintiffs then charge that despite the clear directives of the warning label to keep the merchandise out of the reach of children, defendant displayed cans of Silly String on the bottom shelf in its Pearl, Mississippi, store, making it easily accessible to children. As a result, plaintiffs claim that although they did not witness it, the three unidentified boys they saw engaged in horseplay near the Silly String or some other unknown child or children must have sprayed the Silly String on the shelf, which inevitably caused Tasha's slip and fall and the subsequent injuries of both plaintiffs. Plaintiffs argue that defendant, by displaying the Silly String on the bottom shelf, failed to heed the directives of the warning label to keep out of the reach of children. Thus, reason plaintiffs, defendant violated the FHSA and acted in a manner that can only be characterized as negligence per se.⁷

The court addresses each theory of liability separately in the paragraphs which follow.

A. THE FEDERAL HAZARDOUS SUBSTANCES LABELING ACT AND RELATED REGULATIONS

The FHSA, one of many safety-oriented statutes consolidated into the Consumer Product Safety Act (hereinafter CPSA), Title 15 U.S.C. §§ 2051, et seq., provides a statutory scheme for the regulation and labeling of substances deemed to be hazardous by the Consumer Product Safety Commission (hereinafter CPSC). The FHSA prohibits...