Meyers, T. v. LVD Acquisitions, LLC

J-S14010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TIMOTHY MEYERS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
LVD ACQUISITIONS, LLC D/B/A :
OASIS INTERNATIONAL :
:
Appellee : No. 1740 MDA 2016
Appeal from the Order Entered September 23, 2016
In the Court of Common Pleas of Mifflin County
Civil Division at No(s): CP-44-CV-261-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 28, 2017
Appellant, Timothy Meyers, appeals from the order entered in the
Mifflin County Court of Common Pleas, which granted summary judgment in
favor of Appellee, LVD Acquisitions, LLC., d/b/a Oasis International. We
affirm.
In its opinion, the trial court correctly set forth the relevant facts of
this case. Therefore, we have no reason to restate them. We add only the
following fact: Appellee is the manufacturer of the water cooler at issue.
Procedurally, on February 17, 2015, Appellant filed a complaint against
Appellee, alleging strict liability for a design defect, negligent design and/or
maintenance, and breach of the implied warranty of fitness for a particular
purpose. Appellee answered the complaint on April 27, 2015. On June 6,
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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2016, Appellee filed a motion for summary judgment to dismiss all of
Appellant’s claims. Appellant timely filed a response in opposition to
Appellee’s summary judgment motion on June 30, 2016. The court held oral
arguments for the summary judgment motion on July 14, 2016, and on
September 23, 2016, the court entered summary judgment and dismissed
all of Appellant’s claims. On October 20, 2016, Appellant timely filed a
notice of appeal. The court ordered Appellant on October 21, 2016, to file a
Rule 1925(b) statement, which Appellant timely filed on November 7, 2016.
Appellant raises three issues for our review:
DID THE TRIAL COURT [ERR] IN GRANTING APPELLEES’
MOTION FOR SUMMARY JUDGMENT AS IT RELATES TO
APPELLANT’S STRICT LIABILITY CLAIM[?]
DID THE TRIAL COURT [ERR] IN GRANTING APPELLEES’
MOTION FOR SUMMARY JUDGMENT AS IT RELATES TO
APPELLANT’S NEGLIGENT DESIGN AND/OR
MAINTENANCE-PRODUCT LIABILITY CLAIM[?]
DID THE TRIAL COURT [ERR] IN GRANTING APPELLEES’
MOTION FOR SUMMARY JUDGMENT AS IT RELATES TO
APPELLANT’S BREACH OF IMPLIED WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE CLAIM[?]
(Appellant’s Brief at 7).
Our standard of review of an order granting summary judgment
requires us to determine whether the trial court abused its discretion or
committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,
347 (Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
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and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner
lacking reason. Similarly, the trial court abuses its
discretion if it does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)
(internal citations omitted). Our scope of review is plenary. Pappas v.
Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536
U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial
court’s grant of summary judgment:
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record
in the light most favorable to the non-moving party, and
all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material
fact and it is clear that the moving party is entitled to a
judgment as a matter of law will summary judgment be
entered. All doubts as to the existence of a genuine issue
of a material fact must be resolved against the moving
party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause
of action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no
genuine issue of any material fact as to a necessary
element of the cause of action or defense, which could be
established by additional discovery or expert report and
the moving party is entitled to judgment as a matter of
law, summary judgment is appropriate. Thus, a record
that supports summary judgment either (1) shows the
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material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action
or defense.
Upon appellate review, we are not bound by the trial
court’s conclusions of law, but may reach our own
conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
Preliminarily, we observe:
In this Commonwealth, the pleadings must define the
issues and thus every act or performance essential to that
end must be set forth in the complaint. The purpose
behind the rules of pleading is to enable parties to
ascertain, by utilizing their own professional discretion, the
claims and defenses asserted in the case. This purpose
would be thwarted if courts, rather than the parties, were
burdened with the responsibility of deciphering the causes
of action from a pleading of facts which obscurely support
the claim.
While it is not necessary that the complaint identify the
specific legal theory of the underlying claim, it must
apprise the defendant of the claim being asserted and
summarize the essential facts to support that claim. If a
plaintiff fails to properly plead a separate cause of action,
the cause he did not plead is waived.
Grossman v. Barke, 868 A.2d 561, 568 (Pa.Super. 2005), appeal denied,
585 Pa. 697, 889 A.2d 89 (2005) (internal citation omitted).
With regard to Appellant’s strict liability claim:
Strict liability allows a plaintiff to recover where a product
in a defective condition unreasonably dangerous to the
user or consumer causes harm to the plaintiff. There are
three different types of defective conditions that can give
rise to a strict liability claim: design defect, manufacturing
defect, and failure-to-warn defect. … A product is
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defective due to a failure-to-warn where the product was
distributed without sufficient warnings to notify the
ultimate user of the dangers inherent in the product.
…[A] plaintiff raising a failure-to-warn claim must establish
only two things: that the product was sold in a defective
condition unreasonably dangerous to the user, and that
the defect caused plaintiff’s injury. To establish that the
product was defective, the plaintiff must show that a
warning of a particular danger was either inadequate or
altogether lacking, and that this deficiency in warning
made the product unreasonably dangerous. For the
plaintiff in a failure-to-warn claim to establish the second
element, causation, the plaintiff must demonstrate that the
user of the product would have avoided the risk had he or
she been warned of it by the seller. If the plaintiff fails to
establish either of these two elements, the plaintiff is
barred from recovery as a matter of law.
Phillips v. A-Best Products Co., 542 Pa. 124, 131, 665 A.2d 1167, 1170-
71 (1995) (internal citations and quotation marks omitted).
Instantly, Appellant argues on appeal that Appellee failed to warn him
of the risks/dangers of the water cooler, to support Appellant’s “design
defect” claim. Importantly, Appellant did not allege a failure-to-warn defect
in his complaint. Instead, he alleged that the water cooler had a design
defect. Appellant first mentioned a failure-to-warn theory on June 30, 2016,
in his response to Appellee’s motion for summary judgment. Appellant’s
design defect claim and his failure-to-warn claim are distinct causes of
actions. See id. Therefore, Appellant waived any failure-to-warn claim
because he did not plead it in his complaint.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Aaron L.
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Gingrich, we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed September 23, 2016 at 2-6)
(finding: (1) Appellant chose to place water cooler directly on hardwood
floor without protecting surface underneath; risk that area surrounding
water cooler might get wet is well-known, inherent “risk” of using water
cooler; Appellant’s claim fails under consumer expectations theory because
risk water cooler might leak is knowable to ordinary consumer and is not
dangerous beyond reasonable consumer’s expectations; under risk-utility
test, Appellant’s claim requires expert testimony to identify existence of
defective condition in water cooler and how that defective condition caused
Appellant’s damages; Appellant acknowledges he cannot testify as to these
technical matters, yet he failed to procure expert witness; rather, Appellant
relies on statements of Mr. Neff, who allegedly said he fixed defect in valve,
which statements are inadmissible hearsay; functioning of water cooler,
advantages and disadvantages of different designs, and availability of
alternative designs are technical matters which also require expert
testimony; Appellant admits he does not have requisite knowledge
concerning relevant risk-utility factors; Appellant cannot maintain claim
under risk-utility test because he did not procure expert and cannot produce
evidence to satisfy necessary elements of his claim; (2) again, Appellant
acknowledges that he does not know inner workings of water coolers, so he
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requires expert testimony to demonstrate that Appellee negligently designed
and/or maintained water cooler; as Appellant cannot explain how Appellee
negligently designed or maintained water cooler, his claim cannot go to jury;
Appellant’s documents appended to his response to summary judgment
describing water cooler as “faulty” are unauthenticated hearsay; (3)
Appellant purchased water cooler for ordinary purpose, and he chose
particular water cooler because it was what Berube’s had in stock; Berube’s
did not recommend particular type of water cooler to Appellant; Appellant
did not inform Berube’s about any particular needs Appellant had when
purchasing water cooler). Accordingly, we affirm based on the trial court’s
opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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