Scott v. Dorel Juvenile Grp. Inc., 11-10349

• Decision Date: 04 January 2012
• Docket Number: No. 11-10349,11-10349
• Parties: DELAIN SCOTT, Individually and as Next Friend for Kayden Accardo, Plaintiff—Appellant v. DOREL JUVENILE GROUP, INCORPORATED, also known as Dorel Industries Incorporated, Defendant—Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

DELAIN SCOTT, Individually and as Next Friend for Kayden Accardo, Plaintiff—Appellant v. DOREL JUVENILE GROUP, INCORPORATED also known as Dorel Industries Incorporated, Defendant—Appellee

No. 11-10349

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Filed: January 4, 2012

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:09-CV-799

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:^*

I. FACTUAL AND PROCEDURAL BACKGROUND

In April 2006, Plaintiff—Appellant Delain Scott had a baby girl—K.A. Later that year, Bobbie Scott, Delain's mother and K.A.'s grandmother, purchased Defendant—Appellee Dorel Juvenile Group's Safety First 516A latches for Bobbie's kitchen cabinets. The latches that Bobbie purchased can beinstalled with or without a catch. Bobbie installed the latches without the catch. Bobbie experienced no problems with the latches until April 17, 2007. On that day, Delain and K.A. were over at Bobbie's house. All three of them were in the kitchen with Bobbie and Delain preparing dinner and K.A. playing on the kitchen floor.

Both Bobbie and Delain lost track of K.A. for about thirty to sixty seconds in light of their dinner preparations. Prior to this time, Delain had last seen K.A. sitting on a rug in front of the kitchen sink cabinet drinking from her sippy cup. That cabinet was one of the ones to which Bobbie had installed Dorel's latch. Among other things in that cabinet was a can of Drano Crystals, a drain cleaner. After the thirty- to sixty-second period, Delain looked down to find K.A. foaming from the mouth. Next to K.A. was an open and spilled can of Drano; the kitchen sink cabinet was open. As a result of this accident, K.A. is mute, breathes through a permanent trach in her neck, and can only eat through a feeding tube.

Delain brought the case initially in Texas state court, asserting failure to warn, manufacturing defect, design defect, negligence, gross negligence, and breach of express and implied warranty claims. Defendants Dorel and S.C. Johnson & Son (Drano's manufacturer) removed the case to the United States District Court for the Northern District of Texas. S.C. Johnson settled with Delain. Dorel moved for summary judgment, which the district court granted on all claims. Delain appeals the district court's summary judgment order only as to the design defect, negligence (including gross negligence), and breach of express and implied warranty claims.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review a district court's grant of summary judgment de novo, applying the same standards as the district court. Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 124 (5th Cir. 2011). Summary judgment is appropriate where themovant shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Fed. R. Civ. P. 56(a)). In reviewing the record, all facts and inferences are construed in the light most favorable to the non-movant. Id. However, "[i]f the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, then there is no genuine issue for trial." Id. (internal quotation marks omitted).

Where, as here, federal jurisdiction is based on diversity, we apply the substantive law of the forum state. Aubris Res. LP v. St. Paul Fire & Marine Ins. Co., 566 F.3d 483, 486 (5th Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78—79 (1938)) (additional citation omitted). In resolving issues of Texas law, we look to the decisions of the Texas Supreme Court. Packard v. OCA, Inc., 624 F.3d 726, 730 (5th Cir. 2010). If there is no decision directly on point, then we must determine how that court, if presented with the issue, would resolve it. Id. In making this determination, "[t]he decisions of Texas intermediate appellate courts may provide guidance, but are not controlling." Id.

III. DISCUSSION

A. Design Defect

"Under Texas law, '[t]o recover for a products liability claim alleging a design defect, a plaintiff must prove that (1) the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was a producing cause of the injury for which the plaintiff seeks recovery.'" Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1040 (5th Cir. 2011) (quoting Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009)). The district court found that although there was a material factual dispute as to the unreasonably dangerous prong, Scott v. Dorel Juvenile Grp., Inc., 773 F. Supp. 2d 664, 671—72 (N.D. Tex. 2011), Delain could not provecausation and therefore, granted summary judgment to Dorel on Delain's design defect claim, id. at 672.

1. Unreasonably Dangerous

"Unreasonable dangerousness is a common law element evaluated using the following five factors:

(1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; (2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer's ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (4) the user's anticipated awareness of the dangers inherent in the product and their avoidability because of the general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; (5) the expectations of the ordinary consumer."

Goodner, 650 F.3d at 1040 (quoting Hernandez v. Tokai Corp., 2 S.W.3d 251, 256 (Tex. 1999)). These five factors are considered "holistically; no single factor needs to be proven on its own, so long as all factors working together point to a finding of unreasonable dangerousness." Goodner, 650 F.3d at 1041 (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997)). "Generally, unreasonable dangerousness is a question of fact for the jury. It only becomes a matter of law if reasonable minds cannot differ." Goodner, 650 F.3d at 1040 (citing Hernandez, 2 S.W.3d at 260—61).

This five-factor evaluation is a risk-utility analysis. Timpte Indus., 286 S.W.3d at 311. The Texas Supreme Court has cautioned that this "risk-utility analysis does not operate in a vacuum, but rather in the context of the product's intended use and its intended users." Id. at 312. Dorel invites this Court to consider that the latch itself is not unreasonably dangerous as it was not the latch that caused the harm to K.A. Dorel analogizes the latch as a puppy leashto the Drano being a tiger. Such an analogy is inapposite, because the evidence shows that in its marketing of the latch, Dorel discusses using the latch to secure cabinets and drawers where one might store cleaners and medicine. That is to say, that the latch's utility is keeping children out of cabinets where there might be harmful things. Moreover, Delain's expert, John Scates, opined that a latch installed without the catch could be opened with as little as 2.75 pounds of force, much less than the 25 pounds that Dorel's specifications state that the latch should be able to withstand. Dorel's expert, Dirk Duffner, confirmed this result and found that 63% of the latches he tested failed with less than 25 pounds of force applied to them (median: 4.2 pounds; minimum: 1.6 pounds). In light of this evidence, we find that the evidence on the dangerousness of the latch does not cut so in Dorel's favor that reasonable minds could not find the product unreasonably dangerous. Therefore, Delain has sufficiently proved the unreasonably dangerous aspect at this summary judgment stage.

2. Safer Alternative Design

A "safer alternative design" is defined by Texas law as

a product design other than the one actually used that in reasonable probability:

(1) would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and

(2) was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.

Tex. Civ. Prac & Rem Code § 82.005(b). As the latch is currently manufactured, the latch arm is sloped. See Fig. 1. Scates, Delain's expert, opined that removing the slope in the latch arm could dramatically improve the susceptibility of the latch to being bypassed through downward force. ThisNo. 11-10349

Figure 1

change would reduce the chance of failure due to downward force by 89% and increase the adjustment range by 600%, which would reduce the chance that the latch could be defeated by outward force. Both of these changes "significantly reduce[] the risk of . . . injury" and are inexpensive and feasible with current technology. There is, therefore, sufficient evidence of a safer alternative design for Delain to survive summary judgment.

3. Causation

The final element of a design defect claim is causation. Texas law requires that the defect be a "producing cause of the personal injury." Tex. Civ. Prac. & Rem. Code § 82.005(a)(2). "Texas courts define producing cause as one that is 'a substantial factor in bringing about an injury, and without which the injury would not have occurred.'" Goodner, 650 F.3d at 1044 (quoting Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007)). Dorel argues that Delain cannot sufficiently prove causation for two reasons: (1) the testimony is speculative as to whether the cabinet door was shut (but-for cause) and (2) the testimony does not reveal whether K.A. could open the Drano can (proximate/substantial cause). As to the testimony regarding but-for causation, Bobbie testified in her deposition that it was her habit to keep the cabinet door in question closed, and Delain testified that it was her memory that...