Morgan v. Dick's Sporting Goods, Inc.

• Decision Date: 13 February 2019
• Docket Number: CIVIL ACTION NO. 2:18-CV-28-RWS
• Parties: David MORGAN, et al., Plaintiffs, v. DICK'S SPORTING GOODS, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

359 F.Supp.3d 1283

David MORGAN, et al., Plaintiffs,

v.DICK'S SPORTING GOODS, INC., et al., Defendants.

CIVIL ACTION NO. 2:18-CV-28-RWS

United States District Court, N.D. Georgia, Gainesville Division.

Signed February 13, 2019

Daniel L. Parr, Sr., Michael Lee Weaver, Sr., Weaver Law Firm, Gainesville, GA, for Plaintiffs.

Parks Kalervo Stone, William Shawn Bingham, Wilson Elser Moskowitz Edelman & Dicker, Atlanta, GA, Daniel Jay Offenbach, Sara E. Spratt, Leahy, Eisenberg & Fraenkel, Ltd., Chicago, IL, Kathleen M. Hurley, Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, LLP, Norcross, GA, for Defendants.

ORDER

RICHARD W. STORY, United States District Judge

This action comes before the Court on Defendant PSE's Motion to Dismiss Plaintiffs' Amended Complaint for Failure to State a Claim [21]. After reviewing the record, the Court enters the following Order.

Background¹

I. Factual Background

This is a product liability action in which Plaintiffs seek to hold Defendant Dick's Sporting Goods ("Dick's") and Defendant Precision Shooting Equipment, Inc., d/b/a PSE Archery ("PSE"), responsible for injuries their son JM, a minor, sustained in an accident on March 9, 2016, while he was shooting arrows with a bow. JM and his parents purchased the bow and arrows the previous day from a Dick's retail location in Gainesville, Georgia. A store salesperson assisted the Morgans in their purchase by recommending the Bear Archery Apprentice III Compound Bow, fitting the bow to JM, and suggesting PSE Archery Explorer 28? fiberglass arrows, manufactured by Defendant PSE.²

When JM first used his new bow and arrows on March 9, 2016, he shot two brand-new arrows straight out of the package. The first arrow fired without incident. The second, exploded, splintering into pieces in the middle of the shaft. Some splintered fiberglass pieces went into JM's left hand and thumb, requiring immediate removal surgery. Unfortunately, the Doctor was unable to remove all shards of fiberglass. As a result, JM returns periodically for removal procedures as shards work their way up to the top of his skin. The injury has directly impacted JM's quality of life through the continued pain, procedures, and diminished use of his thumb on his dominant hand.

Plaintiffs maintain they and JM exercised due care at the time of the injury and that the arrows appeared in new condition. They claim the exploding arrow was Defendants' fault and advance a series of apparently alternative reasons the arrow could have exploded.

The Manufacturing Defect Theory

One explanation for the exploding arrow is a manufacturing defect. Plaintiffs argue the arrow contained a flaw or defect when it left PSE's control. (Am. Compl., Dkt [15] ¶ 61.) As evidence for this theory, Plaintiffs point to JM's ability to shoot one arrow without issue, while the second, defective, arrow exploded. (Id. ¶ 62.) Because both arrows were manufactured together, Plaintiffs argue, it follows that the second arrow deviated from the prototypical product. (Id. ) Further, Plaintiffs allege PSE did not adequately communicate a warning to inspect arrows for defects prior to use because the only warning was in "extremely small lettering on the shaft of the arrows," stating: "Warning! Inspect arrow for damage before each shot." (Id. ¶ 51.)

The Damaged Arrow Theory

Another explanation for the exploding arrow is that it left PSE's control in good condition but was damaged before Plaintiffs' purchase. Specifically, Plaintiffs allege Defendant Dick's created "a mechanism for damage" by displaying "the arrows for sale in such a manner that they stuck out in the isle [sic] of the store." (Id. ¶ 36.) By sticking out, Plaintiffs argue, the arrows could have been damaged by customers bumping into them, hitting the shelves, or being knocked to the floor. (Id. ) Plaintiffs also attribute liability under this theory to Defendant PSE for: 1) failing to instruct Dick's in the proper storage and display of the arrows (Id. ¶ 38.); 2) failing to warn "that product failure could happen if there was damage to the arrow" (Id. ¶ 52.); 3) failing to communicate "what damage was acceptable for continued use and what damage was not acceptable" (Id. ); 4) failing to warn "that unseen damages or defects could result in failure." (Id. )

The Incompatibility Theory

Finally, Plaintiffs allege that the arrow exploded because fiberglass arrows are not compatible with the compound bow used. (Id. ¶ 44.) According to Plaintiffs, the PSE arrows and packaging did not warn against using fiberglass arrows with compound bows. (Id. ) Further, PSE did not provide Plaintiffs with any individual warning, written or verbal. (Id. ¶ 48.) Neither did Dick's. (Id. ) Plaintiffs maintain that had PSE provided such warning, they would have heeded it and not used the fiberglass arrows with the compound bow. (Id. ¶ 49.) That said, the compound bow did warn against use with fiberglass arrows.³ The arrow packaging also stated the arrows are of "durable fiberglass construction." (Id. ¶ 45.)

II. Procedural Background

Plaintiffs first filed a complaint on February 6, 2018 in the Superior Court of Hall County. Subsequently, Defendant Dick's properly removed to this Court on March 8, 2018 with Defendant PSE's consent. On April 6, 2018 Defendant PSE filed a Motion to Dismiss [11]. Plaintiffs properly filed an Amended Complaint [15], mooting PSE's motion [11] and any responsive pleading [16]. (See Order [27].) PSE then filed this Motion to Dismiss Plaintiffs' Amended Complaint [21]. Defendant Dick's filed an Answer [23] to Plaintiffs' Amended Complaint [15] along with cross claims against Defendant PSE.

As an initial matter, the Court notes that Defendant Dick's has not moved to dismiss any claims against it, and Defendant PSE has not moved to dismiss Dick's cross claims. Thus, this Order is limited to PSE's Motion to Dismiss [21] Plaintiffs' Negligence (Count I), Failure to Warn (Count II), Products Liability (Count III), and Breach of Implied Warranty (Count IV) claims, as they pertain to PSE. The Court now considers PSE's arguments.

Discussion

I. Motion to Dismiss Legal Standard

Rule 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." While this pleading standard does not require "detailed factual allegations," mere labels and conclusions or "a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). A complaint is plausible on its face when the plaintiff pleads factual content necessary for the court to draw the reasonable inference that the defendant is liable for the conduct alleged. Id."At the motion to dismiss stage, all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff." Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 (11th Cir. 1999). However, the same does not apply to legal conclusions set forth in the complaint.

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009). Nor will the Court "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

II. Analysis

A. Negligence (Count I)

Plaintiffs' Count I consists of multiple theories of liability against both Defendants. While primarily lodged against Dick's, Plaintiffs do include some allegations against PSE. In sum, Plaintiffs allege PSE was negligent in its failure to warn Dick's that: 1) the arrows should be displayed to prevent damage; and 2) that youth fiberglass arrows should not be sold with compound bows. (Am. Compl., Dkt [15] ¶ 39.) PSE was further negligent, Plaintiffs contend, for not "implementing protocol with its retailers to ensure these safety measures are implemented." (Id.) In response, PSE argues it owed no legal duty to Plaintiffs to warn or instruct Dick's regarding the product. Further, even if such duty existed, PSE claims Plaintiffs have not alleged proximate cause.

General negligence principles play a limited role under Georgia products liability law. See, e.g., Fletcher v. Water Applications Distribution Group, Inc., 333 Ga.App. 693, 773 S.E.2d 859 (2015). Primarily, negligence claims serve to attach liability to non-manufacturers, such as retailers, since they are not subject to statutory strict liability. See O.C.G.A. § 51-1-11.1(b) ("For purposes of a product liability action based in whole or in part on the doctrine of strict liability in tort, a product seller is not a manufacturer as provided in Code Section 51-1-11 and is not liable as such."); Ellis v. Rich's, Inc., 233 Ga. 573, 212 S.E.2d 373, 376 (1975) (plaintiff could not proceed in strict liability against importer, distributor or retailer of product "because none is a manufacturer"). While manufacturers are subject to common law negligence in addition to statutory liability, this cause of action is less common and is typically a negligent failure to warn claim.

Under general negligence principles, a manufacturer has a duty to exercise reasonable care in manufacturing its products so as to make products that are reasonably safe for intended or foreseeable uses. Battersby v. Boyer, 241 Ga.App. 115, 526 S.E.2d 159, 162 (1999) (quoting Chrysler Corp. v. Batten, 264 Ga. 723, 450 S.E.2d 208, 211 (1994) ). The existence of a duty to warn the consumer , however, is measured not so much by reasonable care, but by the products liability failure to warn test of foreseeability of use, foreseeability of danger, and foreseeability of the user's knowledge of the product. See Id.

Plaintiffs claim PSE, as the...