McSwain v. SUNRISE MEDICAL, INC., Civil Action No. 2:08cv136KS-MTP.

• Decision Date: 08 February 2010
• Docket Number: Civil Action No. 2:08cv136KS-MTP.
• Citation: 689 F. Supp.2d 835
• Parties: Roy McSWAIN, Plaintiff v. SUNRISE MEDICAL, INC., Planet Mobility.Com, Inc., Quickie Designs, Inc., and John Does 1-10, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

689 F.Supp.2d 835

Roy McSWAIN, Plaintiff v. SUNRISE MEDICAL, INC., Planet Mobility.Com, Inc., Quickie Designs, Inc., and John Does 1-10, Defendants.

Civil Action No. 2:08cv136KS-MTP.

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

February 8, 2010.

Robin Blackledge Blair, Blair Law Office, Carey R. Varnado, Montague, Pittman & Varnado, Hattiesburg, MS, for Plaintiff.

MEMORANDUM OPINION AND ORDER

KEITH STARRETT, District Judge.

This cause is before the Court on the Motion for Summary Judgment Doc # 63 (November 16, 2009), memorandum in support Doc. # 64, and Supplement to Motion for Summary Judgment Doc. # 66 filed by Defendants Sunrise Medical, Inc. and Quickie Designs, Inc. The Motion is opposed by Plaintiff Roy McSwain Docs. # 68 & 69. The court, having reviewed the motion, the responses, the pleadings and exhibits on file and being otherwise fully advised in the premises, finds that the summary judgment motion should be granted. The court specifically finds as follows:

I. BACKGROUND

In February 2006, Plaintiff Roy McSwain ordered a Quickie LXI custom wheelchair via telephone from Planetmobility.com. After receiving the order, Planetmobility.com contacted Sunrise Medical to build the new wheelchair to order and ship it directly to McSwain.

Upon delivery in March 2006, McSwain immediately noticed that the new chair did not have anti-tip tubes like the Quickie 2 wheelchair he had been using since 1994. He also noticed that the wheelchair had solid front wheels instead of the pneumatic front casters he had ordered. His son, Jeremy, who helped him unpack the wheelchair, stated in his deposition that his father not only noticed the lack of anti-tip tubes, but mentioned that he had ordered them, that he needed them, and that he considered taking the anti-tip tubes off the old wheelchair and installing them on the new one, but that they did not fit due to differences in construction. See Mot. Summ. J., Ex. A, Jeremy McSwain Dep. at 10 Doc. # 63-2.

Despite noticing the differences between his new and old wheelchair and despite the warning on the cover of the Instruction Manual urging "BEFORE USING THIS WHEELCHAIR READ THIS ENTIRE MANUAL," McSwain did not read the manual. McSwain has testified that he saw the manual but decided that he did not need to read it since he had been operating a wheelchair for years. See id., Ex. C, Roy McSwain Dep. at 86-87, 89-90 Doc. # 63-2. Instead, McSwain immediately began riding the chair around his home. When McSwain attempted to exit through the front door over the 1.25 inch threshold he tipped backwards, hitting and injuring his head and shoulders. McSwain filed his complaint on June 20, 2008, against Defendants Quickie, Sunrise, and Planetmobility.com raising claims of negligence, gross negligence, breach of warranty, and product liability including failure to provide adequate warning and defective design.

Sunrise and Quickie (collectively "Sunrise") claim that McSwain's product liability claims must fail because he has not presented evidence of a feasible alternative design or that the wheelchair failed to perform as expected. Also, he knew that the chair did not have anti-tip tubes and knew that without them he could tip over backwards, and thus, they argue, the hazard was open and obvious. They claim that he assumed the risk of injury when he used the wheelchair despite knowledge of the dangerous condition and without having read the Instruction Manual. They allege that the ignored warnings were adequate and that no alleged inadequate warning proximately caused the accident. Sunrise argues that McSwain's claims of negligence and gross negligence are subsumed into the Mississippi Products Liability Act (MPLA) and should be dismissed. Finally, Sunrise argues that there is no factual or legal basis for McSwain's breach of warranty claims.

II. STANDARD OF REVIEW

The Federal Rules of Civil Procedure, Rule 56(c) authorizes summary judgment where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The existence of a material question of fact is itself a question of law that the district court is bound to consider before granting summary judgment. John v. State of La. (Bd. of T. for State C. & U.), 757 F.2d 698, 712 (5th Cir.1985).

A Judge's function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

"Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role." Prof'l Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). "The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material." Id. "With regard to `materiality', only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment." Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.1987). Where "the summary judgment evidence establishes that one of the essential elements of the plaintiff's cause of action does not exist as a matter of law, ... all other contested issues of fact are rendered immaterial." See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir.1992). In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir.1984).

The moving party has the duty to demonstrate the lack of a genuine issue of material fact and the appropriateness of judgment as a matter of law to prevail on his motion. Union Planters Nat'l Leasing v. Woods, 687 F.2d 117 (5th Cir.1982). The movant accomplishes this by informing the court of the basis of its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. Topalian, 954 F.2d at 1131.

Once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence. Ferguson v. Nat'l Broad. Co., Inc., 584 F.2d 111, 114 (5th Cir.1978). In other words, "the nonmoving litigant is required to bring forward `significant probative evidence' demonstrating the existence of a triable issue of fact." In Re Mun. Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir.1982). To defend against a proper summary judgment motion, one may not rely on mere denial of material facts nor on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda. The nonmoving party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. FED.R.CIV.P. 56(e); see also Union Planters Nat'l Leasing, 687 F.2d at 119.

While generally "the burden to discover a genuine issue of fact is not on the court," Topalian, 954 F.2d at 1137, "Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention-the court must consider both before granting a summary judgment." John, 757 F.2d at 712 (quoting Keiser v. Coliseum Prop., Inc., 614 F.2d 406, 410 (5th Cir.1980)).

III. LAW AND APPLICATION

In this diversity suit, the substantive law of Mississippi applies. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

A. Product Liability

The Mississippi Products Liability Act governs actions for damages caused by a product. MISS.CODE ANN. § 11-1-63. To recover under this Act, the claimant must prove by a preponderance of the evidence that when the product left the control of the manufacturer or seller:

(i) 1. The product was defective because it deviated in a material way from the manufacturer's specifications or from otherwise identical units manufactured to the same manufacturing specifications, or

2. The product was defective because it failed to contain adequate warnings or instructions, or

3. The product was designed in a defective manner, or

4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and

(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and

(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.

MISS.CODE ANN. § 11-1-63(a)(i-iii). McSwain has made a claim under § 11-1-63(a)(i)(2) and (3): failure to contain adequate warnings and defective design.

1. Defective Design

To show defective design under § 11-1-63(a)(i)(3), a claimant must prove that:

(i) The manufacturer or seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and

(ii) The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the

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