Brizа GRUBB, individually and as surviving spouse of Michael Grubb; Briza Grubb for and on behalf of her minor children, Alexandro Grubb and Emily Grubb; Briza Grubb as Personal Representative of the Estate of Michael Grubb, Plaintiffs/Appellants, v. DO IT BEST CORPORATION, an Indiana corporation, Defendant/Appellee.
No. 2 CA-CV 2011-0140.
Court of Appeals of Arizona, Division 2, Department A.
May 4, 2012.
279 P.3d 626
Penilla Metzger, PLLC by Nathan T. Mеtzger and Perry E. Casazza, Phoenix, Attorneys for Plaintiffs/Appellants.
HOWARD, Chief Judge.
¶ 1 Appellant Briza Grubb1 appeals from the trial court‘s grant of summary judgment in favor of appellee Do It Best Corporation (DIB) in a wrongful death action, arising from the death of Michael Grubb from injuries caused by a propane gas space heater. On appeal, Grubb contends the court erred by finding no issue of material fact on her product liability and negligence claims. Because the court correctly applied the law, we affirm.
Factual and Procedural Background
¶ 2 “We view the facts and the inferences to be drawn from those facts in the light most favorable to the party against whom [summary] judgment was entered.” Mousa v. Saba, 222 Ariz. 581, ¶ 15, 218 P.3d 1038, 1042 (App.2009). Michael Grubb was seriously injured in an explosion while trying to install a space heater. He lаter died from his injuries. Grubb sued various parties including several DESA corporations (DESA) as manufacturer of the heater, B & D Lumber and Hardware (B & D) as seller of the heater, and DIB as “the seller and/or wholesaler” of the heater. The trial court granted DIB‘s motion to file a cross-claim against DESA. DIB moved for summary judgment on its claims for indemnity and declaratory relief against DESA, which the court granted. DIB then moved for summary judgment as to Grubb‘s claims. After a hearing, the court granted summary judgment in favor of DIB. Following further motions and a hearing, the court entered judgment in favor of DIB pursuant to
Standard of Review
¶ 3 Grubb contеnds the trial court erred in granting summary judgment on both her product liability and negligence claims. “On appeal from a summary judgment, we must determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law.” Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 8, 965 P.2d 47, 50 (App.1998) (emphasis omitted). Summary judgment is required where “there is no genuine issue as to any material fact.”
Product Liability
¶ 4 Grubb argues the trial court erred in granting summary judgment in favor of DIB on her product liability claim. She contends that because DIB was part of the chain of distribution “controlling Arizona case law . . . mandates that DIB is, at least in some degree, at fault.”
¶ 5 Subject to statutory exceptions not relevant here, see
¶ 6 In Antone, we considered whether a commercial auctioneer was subject to strict liability as a seller. 214 Ariz. 550, ¶¶ 8, 13, 155 P.3d at 1075, 1077. We concluded the auctioneer did not participate significantly in the stream of commerce because it merely provided a service to other parties in the stream of commerce. Id. ¶¶ 26, 33. We considered the fact that the auctioneer‘s fees did not depend on the condition of the product or its selling price and mostly were used to pay operating costs. Id. ¶ 26. We also noted that, although the auctioneer may have had temporary physical possession, it never owned or inspected the product, or provided a warranty as to the product‘s condition. Id. ¶ 27. Finally, the auctioneer had “no special relationship” or continuing contact with a manufacturer which would permit it to affect the safety of the product. Id. ¶ 28.
¶ 7 Similarly, in Dillard Department Stores, Inc. v. Associated Merchandising Corp., 162 Ariz. 294, 296, 782 P.2d 1187, 1189 (App.1989), the appellant argued a product broker was strictly liable for a defective product because the broker was in the chain of distribution. This court considered various factors, including that the broker: never owned or possessed the product; never exercised control over the product; “provide[d] a service to retailers, rather than specific goods tо the public“; did not directly benefit from the transaction at issue; would not have been responsible for a product lost or damaged in transit; and did not create consumer reliance in the product. Dillard Dep‘t Stores, 162 Ariz. at 298, 782 P.2d at 1191. We concluded the broker lacked the “participatory сonnection” required to give rise to strict liability as a seller. Id.
¶ 8 Additionally, in Joseph v. Yenkin Majestic Paint Corp., 173 Misc. 2d 95, 661 N.Y.S.2d 728, 730 (N.Y.Sup.Ct.1997), affirmed in part by 261 A.D.2d 512, 690 N.Y.S.2d 611 (N.Y.App.Div.1999), the New York court considered a product liability case with facts similar to this situation. The defective product had been delivered via a “drop-ship order.” Joseph, 661 N.Y.S.2d at 730. Member stores of a paint organization сould order items from the defendant‘s warehouse or, if the item was not stocked in the warehouse, could order directly from the vendors, in a drop-ship order. Id. When a member store ordered directly from the vendor, the vendor would bill the defendant who, in turn, would pass the invoice to the member store. Id. The defendant did not profit from a drop-ship order. Id. The court held the defendant‘s conduct was ministerial and “the fact that [the defendant] was designated on invoices as the party to be billed is too tangential to the distribution of the product.” Id. at 731.
¶ 9 DIB is a cooperative of hardware stores and B & D is a member of the cooperative. DIB negotiates prices with vendors on behalf of member stores and then permits member stores to purchase products from DIB‘s warehouses or to order products directly from vendors in a drop-ship order. DIB retains a small fee from every item sold directly from the vendor to the membеr store, however most of the fee is rebated to member stores or covers the cost of billing. In this case, B & D placed an order directly with DESA for the heater. DESA confirmed with DIB that it would guarantee payment, and then DESA shipped the heater directly to B & D. The invoice from DESA to DIB states it was “sold to” B & D and to “bill to” DIB. DIB later billed B & D for items
¶ 10 DESA was a vendor with DIB for thirty оr forty years. However, at the time of the drop-ship order, DESA was “one of several [vendors of] gas wall heaters . . . made available” to DIB members. And although Grubb presented evidence that DIB could decide to stop carrying a vendor‘s products, she has not cited tо any evidence that DIB had the ability to alter DESA‘s product design or packaging. Moreover, a manager for B & D testified that nobody in the area was familiar with the name DIB, but instead people still refer to B & D by a name resulting from its former association with a different organizаtion.
¶ 11 We conclude DIB did not participate significantly in the stream of commerce as to this particular heater. DIB never owned or possessed the heater.3 As in Joseph, B & D ordered the heater directly from DESA and DESA shipped it directly to B & D. See 661 N.Y.S.2d at 730. Similarly, the invoice sets forth that the hеater was “sold to” B & D and merely lists DIB as the party to bill. Grubb has not pointed to any evidence that DIB provided a warranty for the heater or would have been responsible if it had been lost or damaged in transit. See Dillard Dep‘t Stores, 162 Ariz. at 298, 782 P.2d at 1191. DIB provided a service to B & D by permitting it to order from DESA as a DIB member and by collecting B & D‘s bills into a single invoice. See Dillard Dep‘t Stores, Inc., 162 Ariz. at 298, 782 P.2d at 1191. Dеspite the fact that DIB collected a fee for the sale, it remitted the majority of such fees and utilized most of the remainder to cover billing costs. See Antone, 214 Ariz. 550, ¶ 26, 155 P.3d at 1079. Paying the bill put DIB in the position of financing the purchase, but did not make it liable under a product liability theory. And althоugh DIB had carried DESA products for thirty or forty years, it also carried heaters by other manufacturers and no evidence indicates DIB had a special relationship with DESA which would permit DIB to alter or influence DESA‘s design. Finally, no evidence indicates that there is consumer reliance on any involvement by DIB. Thus, we conclude DIB did not participate significantly in the stream of commerce for this particular heater, see id. ¶ 33, and that any participation was too tangential to the heater‘s distribution to merit imposing product liability upon DIB, sеe Joseph, 661 N.Y.S.2d at 731.
¶ 12 Grubb assumes without support that DIB was part of the chain of distribution and concludes it must be liable based on State Farm Insurance Cos. v. Premier Manufactured Systems, Inc., 217 Ariz. 222, 172 P.3d 410 (2007), and State Farm Insurance Cos. v. Premier Manufactured Systems, Inc., 213 Ariz. 419, 142 P.3d 1232 (App.2006). However, in the State Farm cases, this court and our supreme court considеred whether defendants in strict product liability actions may be held liable jointly and severally or only severally. State Farm Ins. Cos., 217 Ariz. 222, ¶ 1, 172 P.3d at 412; State Farm Ins. Cos., 213 Ariz. 419, ¶ 6, 142 P.3d at 1234. Neither case considered whether a defendant had the requisite participatory connection to be strictly liable. State Farm Ins. Cos., 217 Ariz. 222, 172 P.3d 410; State Farm Ins. Cos., 213 Ariz. 419, 142 P.3d 1232. Thus, those cases are inapposite. Grubb‘s reliance on Arizona‘s comparative fault statute is similarly misplaced. See
¶ 13 Grubb also refers to the trial court‘s grant of indemnity from DESA to DIB and contends without support that if DIB “were not a ‘seller’ it would not be entitled to indemnity from DESA.” However, the court concluded only that if DIB were found to be liable it would be as a seller and that DESA was required to indemnify DIB both under Arizona law and contractually. It did not conclude that DIB was liable as a seller in the stream of commerce.
Negligence
¶ 15 Grubb further argues the trial court erred in granting DIB summary judgment on Grubb‘s negligence сlaim. She claims she had shown negligence because DIB failed to inspect the heater‘s packaging and the packaging would not have passed DIB‘s own standards. She further asserts DIB was “an admitted seller” of the heater and had a duty to her. In her discussion of her negligence claim, Grubb cites only Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228 (2007). That case establishes only the general proposition that, in a negligence action, the plaintiff has the burden of proving four elements: “(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant‘s conduct and the resulting injury; and (4) actual damages.” Gipson, 214 Ariz. 141, ¶ 9, 150 P.3d at 230.
¶ 16 We assume DIB could have had some duty to Grubb in these circumstances. Ontiveros v. Borak, 136 Ariz. 500, 509, 667 P.2d 200, 209 (1983) (“‘every person is under a duty to avoid creating situations which pose an unrеasonable risk of harm to others’ “), quoting Nazareno v. Urie, 638 P.2d 671, 674 (1981). But Grubb has failed to cite to any facts in the record that would establish the standard of care DIB, as a member cooperative, had a duty to meet. Despite Grubb‘s claim to the contrary, as we have concluded above, DIB wаs not a seller of this particular heater. And Grubb also cites no facts in the record to show that DIB breached any duty it may have had to Grubb. Accordingly, Grubb has waived these issues and we will not address the merits of her claims regarding standard of care and breach of duty. See
Attorney Fees
¶ 17 DIB requests attorney fees pursuant to
Conclusion
¶ 18 For the foregoing reasons, we affirm the trial court‘s grant of summary judgment in favоr of DIB.
CONCURRING: PETER J. ECKERSTROM, Presiding Judge and J. WILLIAM BRAMMER, JR., Judge.