By Leah S. Poniatowski, J.D.
Parents of a child injured after falling from a child seat failed to show that the lower court erred when it ruled in favor of the manufacturer and a retailer of the seat on the parents’ strict liability and negligence claims, the U.S. Court of Appeals for the Tenth Circuit ruled in an unpublished opinion, upholding the findings that the seat was not unreasonably dangerous, provided adequate warnings, and the passive retailer doctrine applied (Groesbeck v. Bumbo International Trust, November 29, 2017, Holmes, J.).
Two years after purchasing a Bumbo seat in 2010, the parents used the seat for feeding their infant child. During one feeding session when the seat had been placed on a counter, the child fell. The child underwent neurosurgery and her parents asserted that she was permanently affected from the fall. They filed a products liability lawsuit against Bumbo International Trust, the manufacturer of the seat, and Wal-Mart, the retailer where the seat had been purchased.
Prior ruling. The federal district court held that the parents’ claims were not supported by the evidence and that the passive-retailer doctrine applied to shield Wal-Mart (see Product Liability Daily News September 10, 2015 analysis). First, Wal-Mart was not subject to the parents’ strict liability claims under Utah’s Product Liability Act because it was a passive retailer. The parents conceded that Wal-Mart did not participate in the seat’s design, manufacture, testing, or assembly; additionally, Wal-Mart had complied with a recall from 2007 and there was no evidence that Wal-Mart later knew that the recall allegedly was insufficient to solve the problem. Second, Bumbo was not liable for a strict-liability design defect claim because the consumer did not prove that the seat was unreasonably dangerous. Third, the warnings provided by Bumbo were adequate. Finally, Bumbo was not negligent in designing and testing the seat or in failing to make a safer seat, and neither defendant was negligent in failing to warn consumers of the dangers of the seat, the lower court held. The parents filed the present appeal, asserting that the district court erred in its ruling.
Passive-retailer doctrine. The Tenth Circuit agreed that Wal-Mart was protected by Utah’s passive retailer doctrine. According to case precedent interpreting the Utah law, passive retailers cannot be held strictly liable for a product defect without having participated in the design, manufacture, engineering, testing, or assembly of the challenged product. The parents conceded that Wal-Mart did not participate in any activity to move it outside the doctrine, and they could not impute a knowledge-based element because none existed under applicable Utah law. Thus, the grant of summary judgment to Wal-Mart on the passive-retailer doctrine was correct.
Strict liability. The appellate court also concurred that the seat was not "unreasonably dangerous" under a strict-liability theory for design defect, or that the warnings were inadequate under a strict-liability theory for warnings. First, the lower court considered common sense in conjunction with the product warnings disclosing the fall risk. The lower court also noted that there were 91 falls out of the sale of 3.85 million seats, which was "remarkably" low. Although other jurisdictions had found in favor of plaintiffs in substantially similar cases, Utah applies the consumer-expectations test, which is distinct from the risk-utility analysis test used in other jurisdictions. The evidence the parents presented in support of the appeal did not raise any material dispute—their expert did not provide an opinion on the central issue of whether the seat posed a danger beyond what an ordinary and prudent buyer of the seat would contemplate, and additional evidence of ongoing injuries and safety restraint benefit reports also failed to give form to the objective expectation of an ordinary consumer.
Second, the parents’ inadequate warning claim under a strict-liability theory failed because, at the time of the seat’s sale, purchasers were notified in five separate locations that the seat should not be used on an elevated surface. Two warnings were on the box, another in the leaflet accompanying the product, and two on the product itself. The placement, size, color, and capitalization of the warnings also emphasized their importance and addressed the fall risk. The appellate court held that, in considering the product at the time of sale, the lower court’s ruling in favor of the manufacturer was appropriate.
Negligence. The appellate court upheld the lower court’s ruling on the negligence claims in favor of Bumbo on the failure to warn and defective design, and in favor of Wal-Mart on the post-sale duty to warn. First, the parents’ design defect and failure-to-warn claims under a negligence theory essentially used the same arguments as their strict liability theory assertions. The controlling Utah decision allowing simultaneous strict liability and negligence causes of action for product liability plaintiffs emphasized that those claims should be evaluated under the statutory standard for strict-liability claims; thus, the parents’ assertion that Bumbo had a duty to make the seat safer missed the mark in light of the seat not falling within the statutory standard of "unreasonably dangerous." Moreover, the failure-to-warn claim failed as a matter of law because the parents did not provide evidence of inadequacy.
On the issue of Wal-Mart’s alleged negligence in providing post-sale warnings, the appellate court agreed that the parents failed to explain why posting continuous warnings in the store about the seat would be an effective form of communicating product-defect warnings, in addition to being unsupported by law. Therefore, the lower court’s ruling was affirmed.
The case is No. 15-4150.
Attorneys: Elizabeth M. Cunningham (Cunningham Swaim, LLP) for Linsey Groesbeck. Tarush R. Anand (Brown Sims, PC) for Bumbo International Trust f/k/a Jonibach Management Trust f/k/a Jonibach PTY Ltd.
Companies: Bumbo International Trust f/k/a Jonibach Management Trust f/k/a Jonibach PTY Ltd.
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