Facts
- Plaintiff Glenn S. Sunkett, a prisoner, filed a civil rights complaint alleging Fourteenth Amendment due process violations regarding an escape risk determinant added to his central file. [lines="33-39"]
- The escape risk determinant was affixed without notice to Plaintiff, leading to his ineligibility for certain privileges such as education and family visits. [lines="42-43"]
- Plaintiff learned of the escape risk determinant nearly two years after it was added, during an Institutional Classification Committee meeting. [lines="56-58"]
- Plaintiff’s grievance against the escape risk determinant was partially granted, allowing him a hearing, which was conducted by individuals involved in the original determination. [lines="80-89"]
- The trial court granted Defendants’ motion to dismiss the Third Amended Complaint, asserting Plaintiff had failed to allege a due process claim and was entitled to qualified immunity. [lines="100-101"]
Issues
- Did Defendants violate Plaintiff’s due process rights by affixing an escape risk determinant without prior notice? [lines="292-293"]
- Was Plaintiff entitled to due process protections regarding the classification change that led to loss of privileges? [lines="320-321"]
- Were Defendants entitled to qualified immunity in this case? [lines="581-582"]
Holdings
- The court found that the affixing of an escape risk determinant did not violate Plaintiff’s due process rights as he had no liberty interest in a particular classification status. [lines="328-330"]
- The court held that Plaintiff's ineligibility for family visits did not constitute an atypical and significant hardship warranting due process protections under the Fourteenth Amendment. [lines="385-386"]
- Defendants were entitled to qualified immunity, as Plaintiff failed to demonstrate that the right he claimed was clearly established at the time of the actions. [lines="605-606"]
OPINION
Steven Updike, Plaintiff, v. American Honda Motor Company Incorporated, et al., Defendants.
No. CV-21-01379-PHX-DJH
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
September 23, 2024
ORDER
This case arises from a roll-over accident Mr. James Updike, Sr. (“Decedent“) was involved in while driving his 2019 Honda Talon utility terrain vehicle (“Talon“). (Doc. 1-2 at 4; Doc. 83 at 2). Plaintiff Steven Updike (“Plaintiff“) and Defendant American Honda Motor Company Incorporated (“Defendant“) have each filed motions for summary judgment. (Docs. 83 & 84). Plaintiff seeks partial summary judgment on Defendant‘s misuse affirmative defense. (Doc. 83 at 1). Defendant seeks summary judgment on Plaintiff‘s products liability claim. (Doc. 84). These Motions are fully briefed. (Docs. 100, 107, 112, 113). The Court denies both parties’ Motions for the following reasons.1
I. Background2
Plaintiff, Decedent‘s son, has brought this wrongful death action on behalf of Decedent and Decedent‘s statutory beneficiaries. (Doc. 1-2 at 13). On February 7, 2020,
During its descent, the Subject Talon pitched forward, rolled end-over-end, and came to rest on its wheels. (Docs. 83 at 2; Doc. 84 at 2). Plaintiff alleges that the Talon‘s rollover protection system (“ROPS“) failed when the rear cross bar at the top of the roll cage directly behind and above the driver‘s head “snapped”3 and several other parts of the roll cage buckled and injured Decedent. (Doc. 1-2 at ¶¶ 16-17). Decedent added several aftermarket modifications to the Talon, including a “Quick Lite whip and a Rugged Radio aerial antenna” to the cross bar that fractured. (Doc. 84 at 3; Doc. 100 at 16-17). He also added an aftermarket Pro Armor restraint harness. (Doc. 84 at 3; Doc. 100 at 6). There is much dispute as to whether these aftermarket accessories can be attributed to the failure of the ROPS and Decedent‘s injuries. (See Doc. 84 at 3; Doc. 100 at 17). Defendant denies that the Talon‘s ROPS contained a defect or that this defect was the proximate cause of Decedent‘s injuries, as Plaintiff alleges. (Doc. 84 at 7).
Stemming from this roll-over accident, Plaintiff has brought claims for negligence (Doc. 1-2 at ¶¶ 20-30), strict product liability (id. at ¶¶ 31-44), breach of express/implied warranty (id. at ¶¶ 45-48) and punitive damages4 (id. at ¶¶ 49-52) against Defendant. Defendant has asserted the affirmative defense of misuse and contends that Plaintiff “materially altered” the Talon and that this alteration was not foreseeable. (Doc. 84 at 12). Plaintiff argues that there is no evidence that Decedent‘s aftermarket modifications to the Talon caused it to roll over or caused the ROPS to fail. (Doc. 100 at 17).
To support its claims against Defendant, Plaintiff has retained several experts in this case. (Doc. 123 at 3). He has retained Dr. Michael Markushewski to opine on the
II. Legal Standard
A court will grant summary judgment if the movant shows there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.
The moving party bears the initial burden of identifying portions of the record, including pleadings, depositions, answers to interrogatories, admissions, and affidavits, that show there is no genuine factual dispute. Celotex, 477 U.S. at 323. Once shown, the burden shifts to the non-moving party, which must sufficiently establish the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). Where the moving party will have the burden of proof on an issue at trial, the movant must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail “merely by pointing out that there is an absence of evidence to support the nonmoving party‘s case.” Id. (citing Celotex Corp., 477 U.S. at 323).
If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or otherwise as provided in Rule 56, “specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250;
III. Defendant‘s Motion for Summary Judgment
Defendant seeks summary judgment on Plaintiff‘s product liability claim. (Doc. 84).
Federal district courts apply state law to products liability claims brought in federal court pursuant to diversity jurisdiction. Adams v. Synthes Spine Co., 298 F.3d 1114, 1117 (9th Cir. 2002). “The doctrine of strict products liability is a public policy device to spread the risk from one to whom a defective product may be a catastrophe, to those who marketed the product, profit from its sale, and have the know-how to remove its defects before placing it in the chain of distribution.” State Farm Ins. Companies v. Premier Manufactured Sys., Inc., 142 P.3d 1232, 1234 (Ariz. Ct. App. 2006) (internal citations omitted). Strict products liability “does not rest on traditional concepts of fault.” Id. at 1236. For instance, a strict products liability plaintiff “does not have to prove the defendant was negligent.” Id. at 1235 (citations omitted). However, the Arizona Supreme Court has “made clear that proof of the defect alone is not sufficient for liability.” Sw. Pet Prod., Inc. v. Koch Indus., Inc., 273 F. Supp. 2d 1041, 1051 (D. Ariz. 2003) (citing Readenour v. Marion Power Shovel, 719 P.2d 1058, 1063 (Ariz. 1986)). “Instead, ‘[s]trict liability in tort is found only where the defective condition causes the product to be unreasonably dangerous.‘” Id. (emphasis added).
In Arizona, to establish a prima facie case of strict products liability, a plaintiff must show that: (1) the product is defective and unreasonably dangerous; (2) the defective condition existed at the time it left defendant‘s control; and (3) the defective condition is the proximate cause of the plaintiff‘s injuries and property loss. Dietz v. Waller, 685 P.2d 744, 747 (Ariz. 1984); Bonar v. General Motors Corp., 2009 WL 44872, * 4 (Ariz. Ct. App. 2009). Under element one, three types of defects can result in an unreasonably dangerous product: (1) manufacturers defects, (2) design defects, and (3) informational defects. Dillon v. Zeneca Corp., 42 P.3d 598, 603 (Ariz. Ct. App. 2002).
Defendant specifically argues that Plaintiff‘s design defect claim cannot survive summary judgment because: (1) Plaintiff has failed to show that the Talon was defective or unreasonably dangerous; (2) he has not shown that a defect was present when it left Defendant‘s control; (3) there is no evidence that a defect proximately caused Decedent‘s injuries; and (4) Decedent misused the Talon by making material alterations to it, which were not foreseeable.5 (Doc. 84 at 6, 12, 16).6
1. Design Defect
Defendant first argues that Plaintiff cannot meet his burden of demonstrating the existence of a defect present in the Talon because his expert, Dr. Mason, has not done any testing on the amount of force required to deform the Talon‘s ROPS or to break its cross bar. (Doc. 84 at 8). It further argues that Dr. Mason has not done any case-specific testing, so, Plaintiff has failed to show that the Talon suffered from a defect. (Id.) Plaintiff argues, in response, that it has set forth sufficient evidence that the Talon contained a design defect through evidence that the cross bar failed where Defendant intentionally drilled a hole in it, which significantly increased the stress on the crossbar and made its tubing easier to rip. (Doc. 100 at 11).
Under the Consumer Expectation Test, “the fact-finder determines whether the product ‘failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonable manner.‘” Golonka v. General Motors Corp., 65 P.3d 956, 962 (Ariz. Ct. App. 2003) (quoting Dart v. Wiebe Mfg., Inc., 709 P.2d 876, 879 (Ariz. 1985)). Expert testimony is not needed to establish a design defect under the Consumer Expectation Test because the test “focuses on the safety expectations of an ordinary consumer rather than those of an expert.” Long v. TRW Vehicle Safety Sys., Inc., 796 F. Supp. 2d 1005, 1010 (D. Ariz. 2011) (citation omitted). The Consumer Expectation Test finds that a defective product is unreasonably dangerous when “its inherent danger exceeds the expectation of the ordinary user or consumer.” Id. (citing Gomulka v. Yavapai Mach. & Auto Parts, Inc., 745 P.2d 986, 989 (Ariz. Ct. App. 1987)).
When application of the Consumer Expectation Test is “unfeasible or uncertain” courts additionally or alternatively employ the risk/benefit analysis to determine “whether a design is defective and unreasonably dangerous.” Golonka, 65 P.3d at 963. The risk-benefit analysis test asks the fact-finder to decide, in light of relevant factors, whether “the benefits of [a] challenged design...outweigh the risk of danger inherent in [the] design.” Dart, 709 P.2d at 879. If not, the design was defective and unreasonably dangerous. Id.
Courts apply the Consumer Expectation Test when an ordinary customer through use of a product develops “an expectation regarding the performance safety of the product.” Brethauer v. GM Corp., 211 P.3d 1176, 1183 (Ariz. Ct. App. 2010). Indeed, this Court
Here, Plaintiff has set forth sufficient evidence for a jury to find that the Talon‘s crossbar failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonable manner through his experts. See Long, 796 F. Supp. 2d at 1010. First, Dr. Markushewski conducted an “inversion test” with a new Pro Armor 3-inch wide, 4-point restraint system in a machine which allows for testing of full-size vehicles in a rotational manner under a 1G environment. (Doc. 100-3 at 31). He concluded that “the seat belt provided the restraint necessary to prevent [Decedent‘s] neck injury in this protectable rollover incident if the roll cage d[id] not collapse.” (Id. at 34). Markushewski concluded, in sum, that (1) the roll cage failed and the roof panel and roll cage tubing collapsed downward toward the driver occupant space, (2) Decedent‘s helmet was impacted by the collapsing roof and roll cage structure creating a mechanism for his ultimately fatal injuries, and (3) the roll cage structure is defectively designed and unreasonably dangerous and not suited for its intended purpose. (See id. at 33-34).
Next, Dr. Andrew Rentschler concluded that “the intruding roof structure/roll cage contacted [Decedent‘s] helmet...[causing] type III fracture of the dens in combination with failure of the anterior longitudinal ligament and widening of the C1-2 articulations as noted in the available diagnostic studies.” (Doc. 123 at 13). He also testified at his deposition that “absent deformation or crush damage to the ROPS, [Decedent] would not have sustained the cervical injuries that he did as a result of the incident.” (Id. at 14).
Finally, Dr. Mason concluded in his report that “the ROPS was defective in design due to the introduction of a hole in the underside of the rear cross bar and due to the use of thin-walled tubes in its construction, i.e. tubes with too large of a diameter and too small of a wall thickness” and that “the aftermarket components attached to the rear
Reviewing this evidence collectively, the Court finds that Plaintiff has set forth sufficient evidence form which a jury could concluded that the Talon suffered from a defect which caused Decedent‘s injuries. See Matsushita Elec. Indus. Co., 475 U.S. at 585-86. Under the Consumer Expectation Test, Plaintiff has set forth facts to show that the Talon‘s ROPS failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonable manner. Golonka, 65 P.3d at 962. Indeed, consumers have developed a reasonable expectation that a vehicle‘s ROPS should restrain a passenger‘s body within the confines of the vehicle during a rollover crash. Thompson, 2019 WL 2173965, at *2 (“the ordinary consumer could reasonably expect, similar to a seatbelt, that ROPS should restrain a passenger body within the confines of the vehicle during a rollover crash.“).
Defendant argues this case is akin to Kostic v. AutoZone Parts Inc., 2021 WL 461939 (D. Ariz. Feb. 9, 2021). It is not. Kostic dealt with an informational defect theory, not a design defect theory. See id. at *2. As well, unlike the plaintiff in Kostic, Plaintiff has furnished evidence of a defect here. In Kostic, the court found that the plaintiff failed to provide “any evidence” that the product lacked warnings and instructions ordinarily included with it when it left the manufacturers hands. See id. Here, Plaintiff has furnished evidence which demonstrates that the ROPS failed due to its defective design. (Doc. 100 at 11). Plaintiff‘s expert, Dr. Mason concluded that the Talon‘s ROPS was defective in design because of the introduction of a hole in the underside of the rear cross bar. (Doc. 123 at 16). Plaintiff also advances that Defendant‘s own expert, Mr. Cooper, admitted in
Because Plaintiff has set forth evidence that the ROPS collapsed downward toward Decedent during the roll-over and that this collapse caused his injuries, contrary to what a reasonable consumer would expect, Plaintiff has satisfied the Consumer Expectation Test. Martinez, 241 F.R.D. at 641. Furthermore, the fact that Decedent added aftermarket parts to the roof of his Talon does not prevent Plaintiff from satisfying this test because he has set forth credible evidence that the modifications he installed were foreseeable and only increased the stress to the crossmember by three to four percent, so, he has, at the very least, shown that a genuine dispute of fact exists as to this issue. Celotex Corp., 477 U.S. at 322-23.
2. Whether the Defective Condition Existed at the Time it Left Defendant‘s Control
Defendant next argues that Plaintiff cannot show that a defect was present when the Talon left its control. (Doc. 84 at 14 n.8).
A plaintiff is not required to show that a defendant “caused a specific defect while in control of the product,” they must only show that “some defect existed when the product passed from defendant‘s control to plaintiff.” Dietz, 685 P.2d at 747 (emphasis in original). “[N]o specific defect need be shown if the evidence, direct or circumstantial, permits the inference that the accident was caused by a defect.” Id.
Here, Plaintiff has put forth evidence that the Talon‘s ROPS suffered from a defect which existed when it left Defendant‘s control. Dr. Mason concluded that the introduction
Furthermore, changes to a product have not prevented a showing that a defect existed where, as here, it could be reasonably inferred that the defect was the result of a structural problem. See Dietz, 685 P.2d at 747. Dr. Mason‘s testimony establishes as much. (See Doc. 123 at 17). While “reasonable minds could differ over the conclusions to be drawn from the evidence presented,” see Anderson, 477 U.S. at 250, this evidence could allow a reasonable jury to infer that the Talon‘s ROPS suffered from a defect. Dietz, 685 P.2d at 747. Thus, Plaintiff has set forth specific facts showing that there is a genuine issue for trial as to this element. Anderson, 477 U.S. at 250;
3. Proximate Cause
Defendant finally argues that Plaintiff cannot show that the alleged defect was the proximate cause of Decedent‘s injuries. (Doc. 84 at 7).
“The proximate cause of an injury is defined in Arizona as ‘that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces and injury, and without which the injury would not have occurred.‘” Long, 796 F. Supp. 2d at 1011 (quoting Shelburg v. City of Scottsdale Police Dep‘t, 2010 WL 3327690, at *9 (D. Ariz. Aug. 23, 2010)). “Ordinarily, what constitutes the proximate cause of any injury is a question of fact. However, the jury is not entitled to make a decision absent a proper evidentiary foundation.” D‘Agnese v. Novartis Pharms. Corp., 952 F. Supp. 2d 880, 890 (D. Ariz. 2013) (quoting Gebhardt v. Mentor Corp., 191 F.R.D. 180, 184 (D. Ariz. 1999)). In other words, “there must be some evidentiary foundation of proximate cause before the question may be turned over to the jury.” Walsh v. LG Chem Am., 2021 WL 5177864, at
Here, there is, at the very least, some evidence that a defect in the Talon‘s design proximately caused Decedent‘s injuries and death. Id. As stated above, Dr. Markushewski concluded, in sum, that (1) the roll cage failed and the roof panel and roll cage tubing collapsed downward toward the driver occupant space, (2) Decedent‘s helmet was impacted by the collapsing roof and roll cage structure creating a mechanism for his ultimately fatal injuries, and (3) the roll cage structure was defectively designed and unreasonably dangerous and not suited for its intended purpose. (See Doc. 100-3 at 33-34). Dr. Rentschler further concluded that “the intruding roof structure/roll cage contacted [Decedent‘s] helmet...[caused] type III fracture of the dens in combination with failure of the anterior longitudinal ligament and widening of the C1-2 articulations as noted in the available diagnostic studies.” (Doc. 123 at 13). He also testified at his deposition that “absent deformation or crush damage to the ROPS, [Decedent] would not have sustained the cervical injuries that he did as a result of the incident.” (Id. at 14). This evidence sets forth specific facts showing that there is a genuine issue for trial as to the proximate cause element. Dietz, 685 P.2d at 747; Anderson, 477 U.S. at 250.
In sum, Plaintiff has set forth sufficient facts to establish a prima facie case of strict products liability as he has shown that a reasonable juror could find that (1) the Talon was defective and unreasonably dangerous; (2) the defective condition existed at the time it left Defendant‘s control; and (3) the defective condition was the proximate cause of Decedent‘s injuries and death. See Dietz, 685 P.2d at 747; Anderson, 477 U.S. at 250 (stating that the nonmoving party must set forth, by affidavit or otherwise as provided in Rule 56, “specific facts showing that there is a genuine issue for trial.“). So, Defendant is not entitled to judgment as a matter of law on Plaintiff‘s strict products liability claim.
4. Defendant‘s Affirmative Defense of Misuse
Defendant also argues that it is entitled to summary judgment because Plaintiff materially altered the Talon and that this alteration was unforeseeable, which would establish its misuse defense. (Doc. 84 at 12-13). Defendant essentially argues that Plaintiff
Arizona law provides that a defendant in a strict products liability action shall not be liable if it proves that “the proximate cause of the incident giving rise to the action was an alteration or modification of the product that was not reasonably foreseeable, made by a person other than the defendant and subsequent to the time the product was first sold by the defendant.”
Here, Defendant has not “affirmatively demonstrate[d]” that a reasonable jury could only find for it on the defense of misuse, in large part, because of the opinions of Dr. Mason as well as concessions its own expert, Mr. Eddie Cooper, made during his deposition. See
The ROPS was defective in design due to the introduction of a hole in the underside of the rear cross bar and due to the use of thin-walled tubes in its construction, i.e. tubes with too large of a diameter and too small of a wall thickness. The aftermarket components attached to the rear crossmember were foreseeable and likely increased the stress around the hole in the crossmember by approximately 3-4%, much less than the hole itself.
(Doc. 123 at 16). This opinion essentially rebuts the conclusion that the modifications were the cause of the cross member snapping or fracturing because the modifications only increased the stress to it by three or four percent—”much less” than the predrilled hole. (See id.)
Dr. Mason further states that “the aftermarket components attached to the rear crossmember were foreseeable.” (Doc. 123 at 16). As well, Mr. Cooper admitted in his deposition that Decedent was using the Talon as it was intended and foreseeable. (Doc. 83-7 at 4). This evidence prevents a finding that Decedent was misusing the Talon because, to prove misuse, Defendant must affirmatively demonstrate that no reasonable trier of fact could find other than for it. See
Furthermore, Plaintiff has also set forth evidence that Decedent‘s modifications were not contrary to any express instructions or warnings appearing on or attached to the product—which also undermines Defendant‘s entitlement to judgment on its misuse defense.
Moreover, “[d]etermining the credibility of witnesses, resolving evidentiary conflicts, and drawing reasonable inferences from proven facts” falls within the exclusive province of the jury. Taylor v. Cnty. of Pima, 2023 WL 2652602, at *3 (D. Ariz. Mar. 27, 2023) (quoting United States v. Lukashov, 694 F.3d 1107, 1116 (9th Cir. 2012)). Defendant‘s experts and Plaintiff‘s experts each establish facts for and against misuse. For the Court to find one way, or the other, on this issue, the Court would necessarily have to make credibility determinations or weigh conflicting evidence—which, again, the Court cannot do at the summary judgment stage. See T.W. Electric Service, 809 F.2d at 630-31. Indeed, whether the misuse, modification, or alteration of a product is reasonably foreseeable is generally a question of fact for the jury—and this question should be decided by the jury in this case—not the Court. See Kavanaugh, 641 P.2d at 263.
In sum, Defendant has not demonstrated that it is entitled to judgment as a matter of law on Plaintiff‘s strict product liability claim because there are genuine issues of material
IV. Plaintiff‘s Motion for Summary Judgment
Next, the Court will address Plaintiff‘s Motion for Partial Summary Judgment. Plaintiff seeks judgment on a narrow issue: Defendant‘s affirmative defense of misuse. (Doc. 83 at 1). Plaintiff argues that, although misuse is an available affirmative defense under
As stated above, Arizona law provides that a defendant in a strict products liability action shall not be liable if it proves that “the proximate cause of the incident giving rise to the action was an alteration or modification of the product that was not reasonably foreseeable, made by a person other than the defendant and subsequent to the time the product was first sold by the defendant.”
Here, the Court agrees with Defendant that Plaintiff cannot show he is entitled to judgment as a matter of law on misuse because Defendant has set forth evidence that
When juxtaposed to Plaintiff‘s evidence, Defendant‘s evidence demonstrates that there are genuine fact issue for trial. Anderson, 477 U.S. at 250;
As demonstrated, the parties’ expert testimony in this case is in direct conflict, so,
Accordingly,
IT IS ORDERED that Plaintiff‘s Motion for Partial Summary Judgment (Doc. 83) and Defendant‘s Motion for Summary Judgment (Doc. 84) are DENIED.
IT IS FURTHER ORDERED that Plaintiff‘s punitive damages claim contained in Count IV of his Complaint (Doc. 1-2 at ¶¶ 49-52) is DISMISSED, as the parties have stipulated to this dismissal.
IT IS FINALLY ORDERED that considering Plaintiff‘s remaining claims, the parties are directed to comply with Paragraph 10 of the Rule 16 Scheduling Order (Doc. 10 at 6-7) regarding notice of readiness for pretrial conference. Upon a joint request, the parties may also seek a referral from the Court for a settlement conference before a Magistrate Judge.
Dated this 23rd day of September, 2024.
Honorable Diane J. Humetewa
United States District Judge