Johnson v. Wal-Mart Stores E., LP, : 3:11-CV-469

BOBBY JOHNSON and TONI NELSON, Plaintiffs,

v.WAL-MART STORES EAST, LP, and MTD, LLC, Defendants.

No.: 3:11-CV-469

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

June 20, 2013

(VARLAN/SHIRLEY)

MEMORANDUM OPINION

This civil action is before the Court on the Motion for Summary Judgment [Doc. 16] filed by defendants MTD, LLC ("MTD") and Wal-Mart Stores East, LP ("Wal-Mart"). The defendants argue that summary judgment is appropriate in this products liability case because plaintiffs cannot prove that the product at issue was defective or unreasonably dangerous as required by the Tennessee Products Liability Act. Notably, the plaintiffs have not responded to the pending motion and the time for doing so has passed. E.D. Tenn. L.R. 7.1(a), 7.2.

The defendants have filed a memorandum [Doc. 17] and a reply [Doc. 18] with documentation and case law in support of the pending motion. The Court has carefully considered the pending motion and related pleadings in light of the controlling law and the entire record. For the reasons set forth herein, the defendants' motion for summary judgment [Doc. 16] will be GRANTED and this case will be DISMISSED.

I. Relevant Facts

In 2010, plaintiff Bobby Johnson purchased a new Yard-Man lawn mower (or "lawn tractor"), Model Series 760-110, from Wal-Mart [Doc. 1-1 at ¶ 6]. Defendant MTD manufactures the Yard-Man lawn mower that was sold by Wal-Mart to the plaintiff [Id. at ¶ 7]. On June 1, 2010, plaintiff was operating the lawn mower when "[t]he gear slipped causing [p]laintiff to lose control of [the] lawnmower" [Id. at ¶¶ 10-11]. Plaintiff was thrown from the lawn mower causing him physical injury which required medical treatment [Id. at ¶¶ 9, 11]. Subsequently, while in Mr. Johnson's yard, plaintiff Toni Nelson was hit by the lawn mower and also suffered physical injuries which required medical treatment [Id. at ¶ 12].

Mr. Johnson testified that he has many years of experience operating riding lawn mowers, but does not know how the shifter mechanism connects to the transmission [Doc. 17-1 at p. 8]. He testified that he did not know how the throttle links to the engine, but assumed it was by a cable [Id. at p. 10]. Mr. Johnson did not know how the speed selector control worked, but just "put it in one through six or one through seven, whatever it had" [Id. at pp. 10-11]. Similarly, Ms. Nelson testified that she is also experienced in operating riding lawn mowers, but she does not know how the transmission of a riding lawn mower would operate or the mechanics of engaging the cutting blades on a riding lawn mower [Doc. 17-3 at p. 2]. She further testified that she does not know what needs to take place when the key turns to start the engine [Id. at p. 3].

According to the Affidavit of Daniel J. Martens, MTD's Vice President of Product Development and Safety, the lawn tractor at issue was designed by both mechanical and electrical engineers [Doc. 17-2 at ¶¶ 2, 10]. The lawn tractor is a complex piece of machinery with over one hundred component parts and multiple systems which all must function as designed and intended [Id. at ¶ 11]. The lawn tractor's individual component parts and systems are repeatedly tested to ensure that it will function as designed and intended [Id. at ¶ 12]. Further, the lawn tractor is designed and manufactured to ensure that it will comply with the requirements of the ANSI B71.1-2003 safety standard [Id.].

II. Procedural History

The case was removed to this Court from Grainger County Circuit Court on September 29, 2011 [Doc. 1]. MTD served plaintiffs with a First Set of Interrogatories and Requests for Production of Documents on September 10, 2012, to which plaintiffs have not responded [Doc. 17-2 at ¶¶ 6, 8]. Plaintiffs have not made the initial disclosures required by Fed. R. Civ. P. 26(a)(1) and the Court's Scheduling Order [Doc. 5 at ¶ 3(c), Doc. 17-2 at ¶ 7]. Plaintiffs also have not made the expert disclosures required by Fed. R. Civ. P. 26(a)(2) and the Court's Scheduling Order [Doc. 5 at ¶ 3(e), Doc. 17-2 at ¶ 9]. As initially noted, plaintiffs have failed to respond to the pending motion for summary judgment and the time for doing so has expired. E.D. Tenn. L.R. 7.1(a). In short, it appears from this record that the plaintiffs have taken no action to prosecute their case since the filing of the complaint.

III. Standard of Review

Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Moore v. Phillip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). "Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations." Curtis Through Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 324). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.

The Court's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the record "toestablish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Thus, "the inquiry performed is the threshold inquiry of determining whether there is a need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.

The plaintiffs' failure to respond to defendants' motion for summary judgment is not determinative of whether summary judgment is appropriate. Aquent, LLC v. United States, 2011 WL 1397105 at *1 (E.D. Mich. Apr. 13, 2011) (discussing the former version of Rule 56 and noting that "the non-movant's failure to respond does not relieve the movant of its burden to establish that 'the moving party is entitled to judgment as a matter of law'"); Antczak v. Ashland Distrib. Co., 2011 WL 6887720 at *2-3 (E.D. Tenn. Dec. 29, 2011). Relevant to a party's failure to respond is Rule 56(e), which provides:

(e) If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:

. . .

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it[.]

Fed. R. Civ. P. 56(e)(2); 56(e)(3).¹ Accordingly, the Court has examined the motion and supporting materials to determine if summary judgment is appropriate.

IV. Analysis

The bare allegations of the plaintiffs' complaint assert that this is a products liability action for a "defective product" arising from a slipped gear on plaintiff's lawn mower.² Such actions are governed by the Tennessee Products Liability Act ("TPLA"), Tenn. Code Ann. §§ 29-28-101, et seq.³ In order to recover on a products liability action, plaintiffs must prove that the product allegedly manufactured or supplied by defendants was "in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller." Johnson v. Volvo Truck Corp., 2010 WL 55317 at *2(E.D. Tenn. Jan. 4, 2010) (quoting Tenn. Code Ann. § 29-28-105(a)).

A. Defective Condition

The TPLA defines a "defective" condition as "a condition of a product that renders it unsafe for normal or anticipatable handling and consumption." Tenn. Code Ann. § 29-28-102(2). "[T]he failure or malfunction of the device, without more, will not make the defendant liable. A plaintiff must show that there was something wrong with the product, and trace the plaintiff's injury to the specific defect." King v. Danek Med., Inc., 37 S.W.3d 429, 435 (Tenn. Ct. App. 2000) (citations omitted); Whaley v. Rheem Mfg. Co., 900 S.W.2d 296, 299-300 (Tenn. Ct. App. 1995) (quoting Browder v. Pettigrew, 541 S.W.2d 402, 406 (Tenn. 1976) (the mere fact that an accident occurred is not sufficient to prove a defect); Bradley v. Danek Med., Inc., 1999 WL 1866401 at *7 (W.D. Tenn. Mar. 29, 1999) ("Thus, regardless of the theory, the plaintiff must show that something is wrong with a product that makes it defective or unreasonably dangerous."). "Moreover, the fact that plaintiff was injured is not proof of defect." Bradley, 1999 WL 1866401 at *7; Maness v. Boston Scientific, 751 F. Supp. 2d 962, 969 (E.D. Tenn. 2010) (finding that the plaintiff's allegations that he suffered an injury from a device does not, without more, show that the device was defective).

"A defect in a product may be proven by direct evidence, circumstantial evidence, or a combination of both." Whaley, 900 S.W.2d at 299-300 (citing Browder, 541 S.W.2d at 405). Thus, in addition to evidence of an injury caused by the product, a plaintiff must produce "additional circumstantial evidence, such...