Glaser v. Sears Roebuck, Co. ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION
SCOTT GLASER and
SANDRA )
HURST, )
)
Plaintiffs, )
)
v. ) C.A. No. N15C-08-207 ASB
)
SEARS ROEBUCK, CO., et al., )
)
Defendants. )
)
)
July 12, 2017
Upon Defendant Sears Roebuck Company’s.
Motion for Summary Judgment. GRANTED.
Plaintiffs Scott Glaser and Sandra Hurst cannot satisfy the summary
judgment criteria.1
Plaintiffs allege that Mr. Glaser was exposed to asbestos containing products
as a carpenter at the following locations: Convention & Show Services, Inc. (1998-
2006); Exhibit Works (1998); FBK Construction (1997-1998); Wonerlick
Construction and Don Lueker Construction (1980s and 1990s); and Carpenters
1
Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del.
Super. Dec. 30, 2013); see Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S.,
Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In re Asbestos Litigation (Helm), 2012 WL
3264925 (Del. Aug. 13, 2012).
Union (1977-1980). The parties agree that this Motion is limited to exposure to
floor tile sold by Defendant Sears Roebuck Company (“Defendant” or “Sears”)
that was used at the Penobscot Building in Detroit, Michigan from 1977-1978. Mr.
Glaser testified that he cleaned up floor tile associated with Sears. The clean up
process included cleaning up scraps or pieces of floor tile off the floor. He
testified to sweeping up debris and dust on the floor. Defendant contends that
Sears is a retailer of a variety of consumer products and it has never mined, milled,
manufactured, processed, or distributed wholesale asbestos containing products.
Plaintiffs‟ opposition to Defendant‟s Motion does not rebut Defendant‟s argument
that it was a retailer of materials and not a manufacturer. Michigan law explicitly
limits Plaintiff‟s claims to negligence and breach of express warranty. Michigan
law provides:
In a product liability action, a seller other than a manufacturer is not
liable for harm allegedly caused by the product unless either of the
following is true:
(a) The seller failed to exercise a reasonable care, including breach of
any implied warranty, with respect to the product and that failure was
a proximate cause of the person‟s injuries;
(b) The seller made an express warranty as to the product, the product
failed to conform to the warranty, and the failure to conform to the
warranty was a proximate cause of the person‟s harm.2
2
Mich. Comp. Laws Ann. § 600.2947(6). The Sixth Circuit noted that “the Michigan legislature
enacted a statutory revision to its tort law that limits a non-manufacturing seller‟s liability to
instances where „[t]he seller failed to exercise reasonable care, including breach of any implied
warranty, with respect to the product and that failure was the proximate cause of the person‟s
injuries‟.” See Dreyer v. Excel Indus., S.A., 2009 WL 1184846, at *5 (6th Cir. May 4, 2009).
Additionally under Michigan law, “the plaintiff must show that the product was
sold in a defective condition, the defect caused the injury, and the seller failed to
exercise reasonable care.”3 Defendant contends that Plaintiffs have not put forth
any evidence to demonstrate that the above elements are met. Plaintiffs argue that
they have met this burden by establishing that Sears became aware of the dangers
of asbestos exposure in the 1970s. However, the interrogatories that Plaintiff cites
purportedly to prove that Sears “knew it was selling harmful, asbestos-containing
floor tile” hardly supports that. The interrogatory answer Plaintiff cites to states:
Sears did not now and has never mined, milled, manufactured,
processed or distributed wholesale asbestos-containing products as
those terms are commonly used and understood in this litigation.
Sears at all relevant times is and has been a retailer of various
consumer products and services. As such, Sears ability to respond to
this Request is limited by this role . . . However, based on available
information and a reasonable and diligent investigation, Sears admits
that certain floor tile sold by Sears during the relevant time period
contained asbestos.
Thus, Plaintiffs‟ Motion supports Defendant‟s assertion that it was not a
manufacturer of asbestos tiles. However, Plaintiffs do not address Defendant‟s
argument under Michigan law. The Court finds Plaintiffs did not meet their
burden under Michigan law to show that Sears sold a product in a defective
condition, the defect caused the injury, and the seller failed to exercise reasonable
care. As an initial inquisition, under Michigan law manufacturers do not owe a
3
Dreyer, 2009 WL 1184846, at *5 (citations omitted).
duty to warn of the dangers associated with another manufacturer‟s products. In
Dreyer, the court pointed out that Michigan law does not impose a duty on a
manufacturer to warn of dangers associated with another manufacturer‟s product.4
Likewise, the court found that plaintiff was unable to show that the product was
defective because the manufacturer had no duty to warn.5 Thus, the plaintiff could
not show that the product was sold in a defective condition and his breach of
implied warranty claim failed. Additionally, Dreyer noted that the plaintiff offered
“no support for the proposition that a non-manufacturing seller is under a duty to
warn of the dangers associated with a product manufactured by another.” 6
Accordingly, for the reasons stated above, Plaintiffs‟ claim against Defendant
Sears Roebuck fails under Michigan law. Defendant‟s Motion for Summary
Judgment is therefore GRANTED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.
4
Dreyer, 2009 WL 1184846, at *3.
5
Id. In Dreyer, a plaintiff sued a manufacturer and a distributor of a paint sprayer after he was
burned when the solvent he was using ignited. Id. at *1. The Court held that the manufacturer of
the paint sprayer had no duty to warn of another manufacturer‟s defective product. “As explained
above, we conclude that the paint sprayer was not defective due to inadequate warnings
regarding the dangers of [the product] because the manufacturer did not owe a duty to issue those
warnings.” Thus, the plaintiff could not prove that the “product was sold in a defective
condition,” and the manufacturer was not liable for breach of implied warranty. Id.
6
Id.