Skelton v. Action Traders, Ltd.Skelton v. Action Traders, Ltd.
- Reporters:
- Before:
- J. P. Boulee
This matter comes before the Court on Motions for Summary Judgment filed by Infinité Cycle Works, Ltd. (“Infinité“) [Doc. 99]; Action Traders, Ltd. (“Action Traders“) [Doc. 100]; and Costco Wholesale Corporation (“Costco“) [Doc. 101]. This Court finds as follows:
PROCEDURAL HISTORY
This case arises from Hayley Skelton‘s May 20, 2018 bicycle accident and her resulting injuries. The parties dispute the cause of the accident, namely
Hayley Skelton and her husband, Tyler Skelton, (together, “Plaintiffs“), filed this action on June 20, 2019, against Action Traders, Infinité and Costco (collectively, “Domestic Defendants“). [Doc. 1]. The operative complaint is the Second Amended Complaint, which was filed on March 10, 2020. [Doc. 43]. The Second Amended Complaint adds two parties, Tianjin Golden Wheel X-D Bicycle Co. Ltd. (“Golden Wheel“) and Hangzhou Joy Kie Ind. & Trad Co. Ltd. (“Joy Kie“); Golden Wheel and Joy Kie are the “International Defendants.”1 The Second Amended Complaint asserts claims for strict products liability, breach of warranty, negligence and failure to warn against Domestic and International Defendants. Hayley Skelton seeks damages for medical expenses and past and future pain and suffering, and Tyler Skelton seeks damages for loss of consortium.
Domestic Defendants individually moved for summary judgment on April 18, 2022.2 [Doc. 99] (Infinité‘s Motion); [Doc. 100] (Action Traders’ Motion);
FACTUAL HISTORY
The Court derives the facts of this case from Domestic Defendants’ Consolidated Statement of Undisputed Material Facts in Support of their Motions for Summary Judgment, [Doc. 99-2]; Plaintiffs’ Response to Domestic Defendants’ Consolidated Statement of Undisputed Material Facts in Support of their Motions for Summary Judgment, [Doc. 108, pp. 1-31]; Plaintiffs’ Statement of Additional Material Facts that Present a Genuine Issue for Trial, [Doc. 108, pp. 32-33]; and Domestic Defendants’ Reply in Support of Consolidated Statement of Undisputed Material Facts in Support of their Motions for Summary Judgment, [Doc. 112]. The Court also conducted its own review of the record.
The Local Rules of this Court require a respondent to a summary judgment motion to include with its responsive brief “[a] response to the movant‘s statement
A. Bicycle Purchase and Assembly
On May 19, 2018, Plaintiffs purchased a 2018 Boss.Three Ladies Bicycle from Costco in Atlanta, Georgia. [Doc. 112, p. 2]. The bicycle was in a sealed box when it was shipped to Costco from China and remained in a sealed box until purchased by Plaintiffs. Id. The 2018 Boss.Three Ladies Bicycle model passed independent, third-party testing pursuant to Consumer Product Safety Commission (“CPSC“) standards prior to production and shipment to the United States. Id. at 3.
Plaintiffs had to remove the bicycle from the box and partially assemble it before use. Id. at 5. Tyler Skelton assembled the bicycle on May 20, 2018. Id. at 6. As part of the assembly, Tyler Skelton had to attach the front fender to the bicycle‘s frame. Id. at 7. He also had to attach the front fender stay to each side of the bicycle‘s front fork at its front tire hub. Id. The attachment hardware connecting the front fender stay to the front fender was present when Plaintiffs removed the bicycle from the packaging, as well as when Plaintiffs began their bicycle ride on May 20, 2018. Id. at 7. Tyler Skelton testified that he did not recall checking this attachment hardware, but he explained that it would have been “fairly obvious” if the bolt had been loose. Id. at 9. Hayley Skelton did not tighten or check any components on the bicycle prior to riding it on May 20, 2018. Id.
B. Bicycle Production and Express Warranty
Domestic Defendants and International Defendants have different roles with respect to the production, sale and distribution of the 2018 Boss.Three Ladies Bicycle. Golden Wheel is the manufacturer of the 2018 Boss.Three Ladies Bicycle and owns the manufacturing facility in which the subject bicycle was produced. Id. at 12. At all times relevant to this action, Joy Kie was Golden Wheel‘s parent company. Id. International Defendants employ engineering staff who created and provided the mechanical and engineering drawings for the 2018 Boss.Three Ladies Bicycle model. Id. at 13.
Action Traders was the supplier/vendor of 2018 Boss.Three Ladies Bicycles for Costco. Id. at 14. Following production, Costco purchases the bicycles from Action Traders, and the bicycles are then shipped from China to Costco‘s distribution facilities in the United States. Id. at 16. Costco did not communicate,
Infinité is the owner of the intellectual property used for the branding of the 2018 Boss.Three Ladies Bicycle model. Id. Infinité does not have employees or payroll and does not generate any revenue. Id. at 17. Action Traders is the international licensee of the Infinité name and intellectual property. Id. At all times relevant to this action, Infinité had a branding agreement with Action Traders allowing Action Traders to use the Infinité name and intellectual property on bicycles, including the subject bicycle. Id.
It appears that the bicycle‘s owner‘s manual contained an express warranty, [Doc. 108-7], that also appeared online, [Doc. 108-8]. The parties dispute Domestic Defendants’ responsibilities for this express warranty. Plaintiffs assert that Infinité issued the express warranty. [Doc. 112, p. 57]; see also [Doc. 108-7] (“[Infinité] warrants its bicycles to the original purchaser to be free from defects in material and in workmanship....“). Domestic Defendants counter that Infinité simply owns the intellectual property for the bicycle‘s branding and that because it has no employees, payroll or revenue, it is not responsible for the warranty. [Doc. 112, p. 57].
C. May 20, 2018 Accident
Hayley Skelton rode the subject bicycle for the first time on the Proctor Creek Greenway Trail in Atlanta, Georgia, on May 20, 2018. Id. at 18. The accident occurred as Hayley Skelton rode from the northern end of the greenway south to the Bankhead Marta Station, turned around and headed back toward the northern end of the trail. Id. at 19. Plaintiffs testified that after Hayley Skelton crested the top of a hill and began to ride downward, she was ejected over the top of the bicycle‘s handlebars. Id. Plaintiffs are the only individuals who witnessed the accident. Id. at 20. At the time of the accident, they could not see the front fender or fender stay. Id.
D. Cause of the Accident
The parties dispute the cause of the accident, and the experts they designated provide conflicting explanations. Plaintiffs’ expert, John Schubert, concluded that a failed fastener caused the crash. Id. at 24. He specifically attributed the crash to a manufacturing defect (the attachment hardware) and a design defect (a nut-and-bolt design that was attached to the one-piece wraparound fender stay unit). See [Doc. 108-5, p. 4]. Schubert testified that he does not know when, how or how quickly the attachment hardware that connected the front fender to the front fender stay came off the bicycle. [Doc. 112, p. 27]. He also testified that he does not
Schubert proposed two alternative designs in his expert report. [Doc. 102-1, pp. 6-7]. Schubert testified that his first alternative design would not prevent an accident from occurring in the event of a foreign object becoming entangled with the front wheel of a bicycle. [Doc. 112, p. 39]. He also admitted that he had not tested or reviewed data to determine what would happen if a foreign object became entangled with his second alternative design. Id. at 40.
Domestic Defendants’ expert, Garrick Mitchell, opined that the accident was caused by a foreign object becoming entangled in the bicycle‘s front wheel and not by any defect in the bicycle itself. Id. at 45. Mitchell testified that he observed scratches on the spokes of the bicycle that were consistent with a foreign object becoming entangled in the wheel. Id. at 34. Schubert, on the other hand, testified that he did not check the spokes of the bicycle‘s front wheel for scratches. Id. at 35. None of the front wheel spokes were bent or broken when Mitchell examined the bicycle. Id. at 56. Schubert characterized the accident as a “pitchover crash” and testified that a foreign object becoming entangled in the front wheel of a bicycle can cause a pitchover crash. Id. at 39.
E. CPSC Investigation
The CPSC completed an investigation of the May 20, 2018 accident and the 2018 Boss.Three Ladies Bicycle.4 Id. at 48. Following the investigation, the CPSC determined that no further action was needed. Id. at 50; see also [Doc. 99-
LEGAL STANDARD
Under
The party moving for summary judgment bears the initial burden of showing that no genuine issue exists as to any material fact, “and in deciding whether the
ANALYSIS
Although Domestic Defendants moved individually for summary judgment, the Court structures it analysis by Plaintiffs’ claims rather than by individual defendant. Additionally, Plaintiffs indicated no objection to the grant of summary judgment on several claims when responding to the Motions. Specifically, Plaintiffs did not object to granting summary judgment to Infinité on the claims for strict products liability, negligence and failure to warn, [Doc. 109, pp. 9, 21]; as to
A. Strict Products Liability
A plaintiff bringing a claim for strict products liability must prove two elements: “(1) the manufacturer‘s product was ‘not merchantable and reasonably suited to the use intended’ when sold” and “(2) the product‘s condition when sold was the proximate cause of the injury sustained.” Graff v. Baja Marine Corp., 310 F. App‘x 298, 305 (11th Cir. 2009) (quoting
1. Manufacturing Defect
“A manufacturing defect is a defect that is ‘measurable against a built-in objective standard or norm of proper manufacture.‘” Jones, 231 F. Supp. 2d at 1236 (quoting Banks v. ICI Ams., Inc., 450 S.E.2d 671, 673 n.2 (Ga. 1994)). “[B]y definition, a manufacturing defect will always be identifiable as a deviation from some objective standard or a departure from the manufacturer‘s specifications established for the creation of the product.” Id. In other words, a manufacturing defect is discernable “by measuring the product in question against the benchmark of the manufacturer‘s designs.” O‘Shea v. Zimmer Biomet Holdings, Inc., 342 F. Supp. 3d 1354, 1359 (N.D. Ga. 2018) (quoting In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., 711 F. Supp. 2d 1348, 1365 (M.D. Ga. 2010)). The plaintiff need not “specify precisely the nature of the defect,” although she must show that the product “did not operate as intended and [that]
“It is important to note that, under Georgia law, it is not always necessary to have expert testimony on the question of whether there is a manufacturing defect in a product.” Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1319 (11th Cir. 2011). In some cases, “lay testimony can provide sufficient evidence of defect.” Id. Similarly, “Georgia law permits the use of circumstantial evidence to infer a manufacturing defect in some circumstances.” Graff, 310 F. App‘x at 305. Those circumstances typically include cases where the product is destroyed or unavailable for testing. Id. at 305-06. “The nature of the product, the complexity of the facts and the nature of the purported product malfunction will determine the nature of the evidence necessary” to show that a product did not “operate as intended.” Williams, 644 F.3d at 1320 (quoting Am. Med. Sys., 548 S.E.2d at 374).
Action Traders contends that Plaintiffs have provided no evidence to show that the bicycle deviated from any manufacturing standards at the time of its manufacture. Action Traders specifically argues that because Plaintiffs’ expert has not identified any manufacturing standards and does not know what the attachment hardware looked like, Plaintiffs have not shown that the bicycle contained a
The question for the Court is whether Plaintiffs offered “sufficient evidence of a manufacturing defect to establish a genuine issue for trial.” Graff, 310 F. App‘x at 305. Plaintiffs’ expert, Schubert, opined that the accident was caused by failed attachment hardware. During his deposition, he testified that a photograph of the bike “as it would go into the box shows the fender stay attached to the fender” and that “there had to be an attachment for that photograph to be possible.” [Doc. 108-3, p. 98]. Although it is not entirely clear, Schubert appears to be referring to a photograph of the packing and shipping procedure of the 2018 Boss.Three Ladies Bicycle. Schubert‘s expert report includes this photograph (which is not of the subject bicycle but of the model generally) and notes that it “clearly shows that the front fender/fender stay attachment was designed to be completed at the factory.” See [Doc. 108-5, p. 5]. Schubert‘s theory seems to be that the bicycle as manufactured and delivered contains attachment hardware that securely connects the fender and the fender stay, but the subject bicycle‘s attachment hardware failed to securely connect these two parts. As a result of this defect, according to Schubert, the front fender stay moved along the inside of the
Other than this photograph and Schubert‘s related testimony, the record does not contain substantial evidence about the “objective standard” or “manufacturer‘s specifications” for the 2018 Boss.Three Ladies Bicycle. Jones, 231 F. Supp. 2d at 1236. Plaintiffs’ stance is ostensibly that because the attachment hardware failed, the bicycle necessarily contained a manufacturing defect. Other courts have acknowledged that “[i]t is implausible to infer a manufacturing defect from nothing more than a broken product.” Graff v. Baja Marine Corp., No. 2:06-CV-68, 2007 WL 6900363, at *9 (N.D. Ga. Dec. 21, 2007), aff‘d, 310 F. App‘x 298 (11th Cir. 2009). However, Plaintiffs are the non-movants, and as such, the Court must construe the evidence in their favor. In that posture, the Court finds—although a close call—that a jury could conclude, based on Schubert‘s testimony, that there is sufficient evidence of a manufacturing defect.6
In Firestone Tire & Rubber Co. v. King, for instance, a plaintiff brought a products liability claim concerning a tire that blew out and caused a car accident. 244 S.E.2d 905, 908 (Ga. Ct. App. 1978). The portion of the tire in the immediate area of the blowout was not recovered after the accident. Id. The plaintiff‘s expert “could not specify the exact nature of the defect which, in their opinion, caused the tire to fail” and instead “merely speculated as to possibilities.” Id. The Georgia Court of Appeals determined that it was not necessary for the plaintiff “to specify the nature of the defect in order to meet her burden of proof” because she could properly rely on circumstantial evidence to establish the existence of a manufacturing defect. Id. at 908-09. Particularly important was the fact that the alleged defect “could not be directly observed” because “the material in the area of the blowout was destroyed by the blowout” itself. Id. at 909. According to the court, ruling that “this prevented the [plaintiff] from establishing a prima facie case would be to insulate manufacturers from liability for defective products in any case where the defect causes its own destruction,” a result that would be “totally untenable.” Id.
In this case, Plaintiffs argue that the failed attachment hardware—which, due to the accident that caused Hayley Skelton‘s injuries, is missing—is evidence of a manufacturing defect. As the foregoing cases show, these facts do not prevent Plaintiffs from presenting their case; instead, they provide circumstantial evidence from which a jury could infer that the attachment hardware, or the manner in
2. Design Defect
While determining the existence of a manufacturing defect entails a “fairly straightforward” inquiry, a design defect “calls for the finder of fact to employ a loose balancing test to determine whether the manufacturer properly designed the product.” Jones, 231 F. Supp. 2d at 1236. This balancing test is a “risk-utility analysis” that entails weighing “the risks inherent in a product design . . . against the utility or benefit derived from the product.” Banks, 450 S.E.2d at 673. The relevant question is “whether the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk.” Id. As a general rule, “the weighing of the risk-utility factors is to be done by the trier of fact.” Dean v. Toyota Indus. Equip. Mfg., Inc., 540 S.E.2d 233, 237 (Ga. Ct. App. 2000). Accordingly, summary judgment “will rarely be granted in design defect cases where any of [the] elements is disputed.” Bryant v. BGHA, Inc., 9 F. Supp. 3d 1374, 1383 (M.D. Ga. 2014) (alteration in original) (quoting Ogletree v. Navistar Int‘l Transp. Corp., 522 S.E.2d 467, 470 (Ga. 1999)).
Action Traders does not appear to directly address Plaintiffs’ claim that the bicycle contains a design defect, instead arguing generally that Plaintiffs “failed to provide any credible evidence of any defect whatsoever in the subject bicycle.” [Doc. 100-1, p. 12]. Plaintiffs point the Court to Schubert‘s expert report, in which he opined that the fender of the 2018 Boss.Three Ladies Bicycle contained a design defect and in which he proposed alternative designs. See [Doc. 106]; see also [Doc. 108-5, pp. 4, 6–7].
After reviewing the record in this case and the parties’ arguments on this issue, the Court does not believe that Action Traders has met its burden of showing that it is entitled to judgment as a matter of law on the question of whether the bicycle contained a design defect. Action Traders did not argue that no issue of disputed fact exists as to whether the benefit or utility of the bicycle‘s design outweighed any risk associated with this design. Yet a defendant seeking summary judgment on a design defect claim must “show plainly and indisputably an absence of any evidence that a product as designed is defective.” Ogletree, 522 S.E.2d at 470. Plaintiffs, on the other hand, introduced expert evidence that the subject bicycle contained a design defect that “has been known in the industry for
3. Proximate Cause
A plaintiff in a products liability case “has the burden of proving the causal connection between the alleged design or manufacturing defect and [her] injury.” Boswell v. Overhead Door Corp., 664 S.E.2d 262, 263 (Ga. Ct. App. 2008); Talley v. City Tank Corp., 279 S.E.2d 264, 269 (Ga. Ct. App. 1981) (“Unless the manufacturer‘s defective product can be shown to be the proximate cause of the injuries, there can be no recovery.“). “Although expert opinions are often necessary to establish proximate cause in products liability cases, expert testimony is not always required where jurors are capable of determining whether injuries were caused by alleged defects in a product based on their own experiences.” Williams v. Tristar Prods., Inc., 418 F. Supp. 3d 1212, 1228 (M.D. Ga. 2019). “As a general rule, issues of causation are for the jury to resolve and should not be determined by a trial court as a matter of law except in plain and undisputed cases.” Ogletree v. Navistar Int‘l Transp. Corp., 535 S.E.2d 545, 548 (Ga. Ct. App. 2000).
Action Traders has not cited legal authority for the proposition that a manufacturing or design defect must “worsen” a plaintiff‘s injuries for that plaintiff to show proximate causation. Instead, Georgia courts require a plaintiff in a products liability action to establish that “the proximate cause of the injury was a defect which existed when the product was sold.” Whitehead v. Green, 879 S.E.2d 698, 710 (Ga. Ct. App. 2022) (quoting Carmical v. Bell Helicopter Textron, Inc., a Subsidiary of Textron, Inc., 117 F.3d 490, 494 (11th Cir. 1997)). In turn, “[a] proximate cause is that which, ‘in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred.‘” Id. at 710-11 (quoting Maynard v. Snapchat, Inc., 870 S.E.2d 739, 746 (Ga. 2022)).
4. Assumption of the Risk
A defendant relying on the affirmative defense of assumption of the risk must prove three elements: the plaintiff (1) had actual knowledge of the danger, (2) understood and appreciated the risks associated with such danger and (3) voluntarily exposed herself to those risks. Vaughn v. Pleasent, 471 S.E.2d 866, 868 (Ga. 1996). The first factor, whether the plaintiff had knowledge of the danger, “does not refer to a comprehension of general, non-specific risks.” Cornwell v. Chambers of Ga., Inc., 491 S.E.2d 132, 134 (Ga. Ct. App. 1997).
Assumption of the risk is a valid defense to a strict products liability action. Bodymasters Sports Indus., Inc. v. Wimberley, 501 S.E.2d 556, 560 (Ga. Ct. App. 1998). “As a general rule,” however, “whether a party assumed the risk of [her] injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.” Turner v. Sumter Self Storage Co., 449 S.E.2d 618, 620 (Ga. Ct. App. 1994).
Action Traders claims that it is entitled to summary judgment on the strict products liability claim because Hayley Skelton assumed the risk of falling. According to Action Traders, Plaintiffs failed to introduce evidence of any defect, and thus Hayley Skelton “merely fell off . . . a bicycle while riding it.” [Doc. 100-1, p. 21]. However, this argument depends on the underlying premise that Plaintiffs lack evidence of any defect in the bicycle. The Court concluded above that Plaintiffs introduced sufficient evidence to create a jury question on this issue. As such, Action Traders must show that Hayley Skelton had actual knowledge of
* * *
For the foregoing reasons, Action Traders’ Motion for Summary Judgment as to Plaintiffs’ claim for strict products liability is DENIED.
B. Breach of Warranty
To recover for a breach of express or implied warranty under Georgia law, a plaintiff must show privity between herself and the defendant. Wheeler v. Novartis Pharms. Corp., 944 F. Supp. 2d 1344, 1354 (S.D. Ga. 2013). As a general rule, the end user of a product cannot recover “on any express or implied warranty when the manufacturer sells the product to the original consumer, e.g. a retailer.” Lee v. Mylan Inc., 806 F. Supp. 2d 1320, 1326 (M.D. Ga. 2011). However, “privity of contract between the manufacturer and ultimate consumer is established when the manufacturer extends an express warranty to the ultimate consumer.” Id.
Plaintiffs alleged in the Second Amended Complaint that Defendants “expressly and impliedly warranted” that the subject bicycle “was of merchantable quality” and “free from defects.” [Doc. 43, p. 8]. The Court will address below
1. Infinité
Infinité moves for summary judgement on Plaintiffs’ claim for breach of express and implied warranty on the basis that Plaintiffs lack privity. Plaintiffs contend that this argument is inapposite because Infinité issued an express warranty, for which privity is not required. It is true that privity is established where a manufacturer extends an express warranty to the end user. But it is undisputed in this case that Infinité is not a manufacturer. Infinité merely owns the intellectual property that is used to brand the subject bicycle but has no employees and generates no revenue. In this posture, the privity requirement remains necessary to recover on an express warranty, and Plaintiffs have not shown that they have privity with Infinité. Summary judgment is warranted on the claim for breach of express warranty.
Because Plaintiffs did not respond to Infinité‘s arguments as to the claim for breach of implied warranty, the Court deems that claim abandoned. Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (affirming the district court‘s decision not to address an issue that was not raised in opposition to a motion for summary judgment);
2. Action Traders
Action Traders seeks summary judgment on Plaintiffs’ claim for breach of express and implied warranty on the grounds that Plaintiffs failed to show privity. Specifically, Action Traders argues that Plaintiffs purchased the bicycle from Costco and not from Action Traders, which shows the absence of any privity of
The record in this case contains many disputed facts about the express warranty on the subject bicycle. Plaintiffs contend that Action Traders is responsible for fulfilling the warranty, and Action Traders’ own representative testified that Action Traders completes any warranty work and handles any warranty claims. [Doc. 108-6, p. 87]. Action Traders, on the other hand, appears to deny any responsibility for the express warranty. [Doc. 112, p. 85].
Action Traders also contends that the warranty‘s language—“[Infinité] warrants its bicycles to the original purchaser“—means that the warranty is limited
If you discover a defect within the warranty period, you must follow this procedure:
A) Bring the bicycle to the original dealer from whom it was purchased. If the dealer [from] whom you purchased this bicycle determines upon examination that either a repair or replacement is justified and such determination is verified by [Infinité], repair or replacement will be made in accordance with the warranty.
B) When making claim under warranty, you must also bring to the original selling dealer a copy of the sales receipt or proof of original purchase.
[Doc. 108-7, p. 2] (emphasis added). If the “original purchaser” is Costco, not the ultimate consumer, it is unclear who the “original dealer” or the “original selling dealer” might be. Insofar as Action Traders claims that the “original purchaser” is Costco, it is equally possible that the “original purchaser” is the end user, and the “original dealer” is the retailer from whom the end user purchased the product (here, Costco). Under that reading, it would not be dispositive in this case that Plaintiffs purchased the bicycle from Costco rather than Action Traders. Frey v. Bayer Corp., 499 F. Supp. 3d 1283, 1293 (M.D. Ga. 2020) (“[I]f a manufacturer extends an express warranty to the ultimate consumer, the privity requirement is
As such, Action Traders’ conclusory assertion that the warranty is “exclusively limited to the original owner/purchaser of the bicycle, which is Costco” is not enough to show that it is entitled to judgment as a matter of law on the express warranty claim. Summary judgment is thus DENIED on the claim for breach of express warranty and GRANTED on the claim for breach of implied warranty.
3. Costco
Although Costco seeks summary judgment on “all” of Plaintiffs’ claims, [Doc. 101, p. 1], Costco presented no arguments in its brief as to why summary judgment was warranted on Plaintiffs’ claim for breach of express or implied warranty. Costco asserts in reply that its arguments “apply to all claims.”10 [Doc.
CONCLUSION
For the reasons stated above, Infinité‘s Motion for Summary Judgment [Doc. 99] is GRANTED in its entirety, Action Traders’ Motion for Summary Judgment [Doc. 100] is GRANTED IN PART AND DENIED IN PART and Costco‘s Motion for Summary Judgment [Doc. 101] is GRANTED IN PART AND DENIED IN PART. Plaintiffs’ remaining claims are the following: (1) breach of express and implied warranty against Costco; (2) breach of express warranty against Action Traders; and (3) strict products liability against Action Traders.
The parties are HEREBY ORDERED to file the consolidated pretrial order required by Local Rule 16.4 no later than twenty-one days from the entry of this Order. The parties are notified that a failure to comply with this Order may result
SO ORDERED this 17th day of March, 2023.
J. P. BOULEE
United States District Judge
Notes
Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997) (alteration in original) (quoting Jones v. Otis Elevator Co., 861 F.2d 655, 661 (11th Cir. 1988)). Because this doctrine concerns the admissibility of evidence, it is governed by federal law and not state law. Reid v. BMW of N. Am., 464 F. Supp. 2d 1267, 1271 (N.D. Ga. 2006). Plaintiffs did not raise the prior incidents in their own statement of facts, and as a result, Defendants were unable to properly respond to the admissibility of these incidents. The Court therefore declines to consider them in the resolution of the pending Motions but makes no ruling as to whether they would be admissible at trial.applies when one party seeks to admit prior accidents or occurrences involving the opposing party, in order to show, for example “notice, magnitude of the danger involved, the [party‘s] ability to correct a known defect, the lack of safety for intended uses, strength of a product, the standard of care, and causation.”