Morgan v. Sears, Roebuck and Co.

• Decision Date: 06 January 1989
• Docket Number: Civ. A. No. 1:86-CV-2561-JOF.
• Citation: 700 F. Supp. 1574
• Parties: Tamara MORGAN, Plaintiff, v. SEARS, ROEBUCK AND COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

700 F. Supp. 1574

Tamara MORGAN, Plaintiff, v. SEARS, ROEBUCK AND COMPANY, Defendant.

Civ. A. No. 1:86-CV-2561-JOF.

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

July 28, 1988.

As Amended January 6, 1989.

Alan F. Herman, Freeman & Hawkins, Faye Dara Levine, Rand & Ezor, Atlanta, Ga., Sheryl Deane Fambrough, Fambrough & Shapiro, Chamblee, Ga., for plaintiff.

Ronald Louis Reid, Donna Potts Bergeson, Alston & Bird, Atlanta, Ga., for defendant.

ORDER

FORRESTER, District Judge.

This products liability action is before the court on the defendant's motion for summary judgment and on the defendant's motion to strike several of the plaintiff's affidavits submitted in opposition to the defendant's motion for summary judgment. For the reasons discussed below, both of the defendant's motions will be denied. After a brief discussion of the facts and the plaintiff's claims, the court will deal with the defendant's motions in turn.

I. FACTS

The plaintiff was born on January 3, 1967. On May 3, 1970 the plaintiff sustained serious injuries when the garment she was wearing caught fire while she was playing with matches. The plaintiff contends that the garment she was wearing at the time was a nightgown identified as item number 29K3111F advertised by Sears in its spring through summer 1968 catalogue. As will be discussed more fully below, the defendant disputes the plaintiff's identification evidence.

The plaintiff filed this suit in October 1986, alleging that the defendant is strictly liable because the gown was not merchantable and reasonably suited to the use intended as required by O.C.G.A. § 51-1-11 (Count I). The plaintiff also alleged that the defendant was liable for its negligence in, inter alia, failing to warn of the garment's flammability, failing to treat the gown to make it flame resistant, and failing to use a flame resistant fabric (Count II). Finally, the plaintiff alleged that the defendant had breached its implied warranty under O.C.G.A. § 11-2-301, et seq. (Count III). In November 1987 the court allowed the plaintiff to amend her complaint to assert a fourth count alleging that Sears knew the flammability characteristics of the gown and failed to warn the plaintiff or her mother (Count IV). The amendment also added a prayer for punitive damages.

II. MOTION TO STRIKE

The defendant has filed a motion to strike the affidavits submitted by the plaintiff in opposition to the defendant's summary judgment motion. The defendant objects to the affidavits of Betty Morgan, Tonya Morgan Henry, Lena Marquette and Michael Scalone because they are not based on personal knowledge. Further, the defendant contends Betty Morgan's and Tonya Henry Morgan's statements contradict certain statements given in their depositions. The defendant objects to Lena Marquette's and Michael Scalone's statements as inadmissable hearsay. The defendant also objects to Dr. Johnson's statements on the basis that he is not qualified as an expert in the area in which he is attempting to testify.

Rather than filing a motion to strike as under Rule 12, the proper method for challenging the admissibility of evidence in an affidavit is to file a notice of objection to the challenged testimony. Pinkerton and Laws Company, Inc. v. Roadway Express, Inc., 650 F.Supp. 1138, 1140 (N.D.Ga.1986); Friedlander v. Troutman, Sanders, Lockerman & Ashmore, 595 F.Supp. 1442 (N.D.Ga.1984), rev'd on other grounds, 788 F.2d 1500 (11th Cir. 1986); Smith v. Southeastern Stages, Inc., 479 F.Supp. 593 (N.D.Ga.1977). In deciding a summary judgment motion, the court will assess the evidence's admissibility and will consider any objections raised by the defendants to testimony presented in the plaintiff's affidavits when ruling on the merits of the summary judgment motion. Accordingly, the defendant's motion to strike is DENIED.

III. MOTION FOR SUMMARY JUDGMENT

Sears contends that it is entitled to summary judgment on all four counts of the complaint because the evidence is insufficient that the garment worn by the plaintiff on the day of the fire was the 29K3111F gown or any other garment sold by Sears. Sears also argues that the strict liability and negligence counts (Counts I, II and IV) are barred by the applicable statutes of repose. Finally, Sears argues that the warranty claim (Count III) is barred for failure to give reasonable notice of injury.

A. Sufficiency of Evidence.

The court cannot agree with Sears that the plaintiff's evidence in support of her identification of the gown in question is not sufficient to create a genuine issue as to a material fact. Sears contends the plaintiff cannot prove the 29K3111F gown was the one worn by the plaintiff when the incident occurred, nor that gown worn by the plaintiff was bought at Sears. It is undisputed that no tangible evidence such as a remnant of the garment involved in the fire, receipts, cancelled checks, catalogue order forms, or other documents exist to identify the gown or to support the plaintiff's claim that her mother purchased the 29K3111F gown from Sears. However, each of the remaining "facts" on which Sears relies in describing the plaintiff's identification of the 29K3111F gown as speculative is refuted to some extent by the plaintiff.

Sears contends that at the time of the incident, the plaintiff's mother had not dressed the plaintiff and had not seen what garment the plaintiff was wearing. The only person to see the garment the plaintiff was wearing at the time of the fire was her then-twelve-year-old sister Tonya. Tonya's knowledge of where the garment was purchased is based solely on what her mother told her, but the plaintiff presents evidence that Tonya can state positively that the gown in question was a 29K3111F gown. Also, though the plaintiff admits her mother was not present when the fire occurred, her mother has stated that the 29K3111F gown was the only gown that the plaintiff owned and wore at the time.

Sears points to the contradictory identifications by the plaintiff's mother as showing the speculative nature of the plaintiff's identification of the gown. Sears contends that in initial contacts with Sears, the plaintiff's attorneys described the garment as "pajamas purchased by the Plaintiff's mother from the Sears 1969 Christmas catalog" and then "a nightgown (rather than pajamas) purchased from the Sears 1967 Christmas catalog." Sears emphasizes that the plaintiff's mother reviewed a number of Sears catalogues in November and December 1982, in an effort to identify the gown worn by the plaintiff. Sears also emphasizes that in July 1983, the plaintiff notified Sears that the garment involved in the fire was a gown advertised in the 1967 Fall and Winter catalog, style number 29G3152F, a long-sleeved gown made of medium weight combed cotton, but finally picked the 29K3111F gown from the Spring/Summer 1968 catalogue.

The plaintiff does not deny the initial descriptions of "pajamas," but adds that the second description further identified the garment as a "granny gown." The plaintiff contends that her mother reviewed numerous catalogues because she was unable to find the correct granny gown in the catalogues she was furnished. The plaintiff adds that, from December 1982, her mother described the gown as "a material other than flannel, white with small flowers scattered, layers of ruffles on the gown itself from the waist down" and described the model in the catalog as "having blonde hair, no cap coming with the gown."

The plaintiff contends that her mother made first identification from the 1967 catalogue upon Sears' counsel's "demand" that she choose a gown and that she "chose the gown most similar to the one I remembered." The plaintiff also points out that when, in June 1986, she notified Sears that the gown involved in the fire was the 29K3111F gown, she submitted to Sears page 380 of the Sears 1968 Spring/Summer catalog showing a gown pink and white in color being modeled by a blonde girl without a hat.

Sears further questions the plaintiff's identification because of with the description of the gown as a "nylon" nightgown in the hospital records of the plaintiff's emergency room and initial treating physician, Dr. Arnall, though the 29K3111F gown is a 100% cotton gown. The plaintiff responds with Dr. Arnall's testimony that the actual fabric of the garment made no difference in his manner and method of treating the plaintiff and that the "nylon" description appears in the discharge summary dictated fifteen days after the plaintiff was admitted. The plaintiff also argues that the term "nylon" was used in a generic sense.

Seizing on the statement in the plaintiff's responses to Sears' first interrogatories that the "nightgown melted to plaintiff's body and had to be scraped/surgically removed," Sears points to evidence that cotton fabric will not melt, while nylon fabric will melt, presumably indicating the gown could not have been the Sears cotton gown. The plaintiff backs away from the language of her interrogatory response and points to the testimony of her mother and her eldest sister, Vikki Morgan Chestnut, making reference to the nightgown "sticking" to the plaintiff's body. The plaintiff also points to the testimony of her proposed expert witness, Dr. Robert Johnson. The defendant has objected to Dr. Johnson's testimony concerning the burn pattern experienced by the plaintiff. The court is satisfied that his expertise is directly related to his affidavit testimony. He states that nylon nightgowns have a much slower burning rate and are more difficult to ignite that cotton nightgowns. Because nylon nightgowns are generally self-extinguishing, if the plaintiff had been wearing a nylon nightgown, the burned area would not have exceeded a three-inch by three-inch area. Therefore, in his opinion, the burn pattern demonstrated by photographs of the plaintiff shows that the nightgown was made of cotton rather than nylon, because nylon would not...