By Susan Engstrom
The parents of a teenager who drowned while wearing a life vest could not maintain product liability claims against the seller of the vest, a federal court in Tennessee ruled. The seller’s allegedly negligent display of the vest alongside Coast Guard-approved vests constituted "marketing" within the meaning of the Tennessee Products Liability Act, and, thus, the seller was protected from liability. Consequently, the parents’ claims against the seller were dismissed (Greer v. Motion Water Sports, Inc., April 23, 2018, Campbell, W.).
On the day of the accident, the teenager was tubing on a lake while wearing a Liquid Force LF’N Z-Cardigan Comp Adult Life Vest. His tube turned over, and he fell into the water and drowned. His parents filed suit against several entities, including Retail Concepts Inc., d/b/a Sun & Ski Sports, which had sold the vest. They alleged that the vest was insufficient to keep their son afloat and was the proximate cause of his death. Retail Concepts moved to dismiss.
Tennessee Products Liability Act (TPLA). With certain exceptions not applicable here, the TPLA shields non-manufacturing sellers of products from liability. It defines "seller" as "a retailer, wholesaler, or distributor, and means any individual or entity engaged in the business of selling a product, whether such sale is for resale, or for use of consumption." Also under the statute, a product liability action "includes all actions brought for or on account of … death … caused by or resulting from the manufacture, … marketing, packaging or labeling of any product." Actions brought under the theory of product liability include those based on negligence "or under any substantive legal theory in tort or contract whatsoever." In this case, the parents alleged that Retail Concepts was liable for negligence and recklessness.
The court determined that the company qualified as a "seller" under the TPLA. The parents did not dispute this but, rather, argued that their claims did not qualify as a product liability action because Retail Concepts engaged in negligent merchandising, not marketing. According to the parents, the company’s negligent conduct in "the misleading manner in which it displayed competition vests with actual life vests" constituted merchandising and, thus, the TPLA did not apply.
In the absence of case law interpreting "marketing" under the TPLA, the court turned to Black’s Law Dictionary, which defines the term, in relevant part, as "[t]he act or process of promoting and selling … products or services"; and "[t]he area of study concerned with the promotion and selling of products or services." Webster’s Dictionary defines the term as "the act or process of selling or purchasing in a market"; and "the process or technique of promoting, selling, and distributing a product or service."
The parents’ complaint alleged that, "[b]y … displaying the [vest] for sale to the general public adjacent to, alongside, and with Coast Guard approved life vests, Defendant Retail Concepts made it appear to the general public that the [vest] was a Coast Guard approved live vest, and/or was designed to keep an incapacitated person afloat." In other words, the parents alleged that the manner in which Retail Concepts chose to display the vest for sale was negligent. Although the parents attempted to distinguish between the manner of the display and the actual sale, the display was a process to promote the sale of the vest. Thus, the display constituted "the business of selling a product" within the meaning of the TPLA, and qualified as "marketing." Accordingly, the parents’ claims against Retail Concepts were dismissed.
The case is No. 3:17-cv-01013.
Attorneys: Glen W. Morgan (Reaud, Morgan & Quinn, LLP) for Craig M. Greer and Karen R. Greer. J. Randolph Bibb, Jr. (Lewis, Thomason, King, Krieg & Waldrop, PC) and Kimberly Ann Viergever (The Rietz Law Firm, LLC) for Motion Water Sports, Inc. and Kent Sporting Goods Co., Inc. Christen C. Blackburn (Leitner, Williams, Dooley & Napolitan, PLLC) for Retail Concepts, Inc. d/b/a Sun & Ski Sports.
Companies: Motion Water Sports, Inc.; Kent Sporting Goods Co., Inc.; Retail Concepts, Inc. d/b/a Sun & Ski Sports
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