United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Defendants Great Northern
Holding, LLC and Harrisonville Equipment Company's Motion
for Summary Judgment (the “Motion”), (Doc.
173), filed September 6, 2017; Plaintiff's Response
to Defendants Great Northern Holding, LLC and Harrisonville
Equipment Company's Motion for Summary Judgment (the
“Response”), (Doc. 178), filed September 19,
2017; and Defendants Great Northern Holding, LLC and
Harrisonville Equipment Company's Reply in Support of
Their Motion for Summary Judgment (the
“Reply”), (Doc. 180), filed October 2, 2017. This
matter is also before the Court on Plaintiff's
Unopposed Motion to Exceed Exhibit Page Limits in His
Response, (Doc. 177), filed September 19, 2017. On
January 5, 2018, the parties consented to the undersigned to
preside over this case. (Doc. 210). Having considered the
briefs, the record of the case, and relevant law,
Plaintiff's motion to exceed page limits, (Doc. 177), and
Defendants Great Northern Holding, LLC and Harrisonville
Equipment Company's Motion for Summary Judgment,
(Doc. 173), are GRANTED, and Plaintiff's
strict liability and negligence claims against Defendants
Great Northern Holding and Harrisonville Equipment Company
November 19, 2013, Plaintiff was performing work on a
commercial roofing job for Defendant C. Ortiz Corporation
(“C. Ortiz”) at the White Sands Missile Range, a
federal enclave in New Mexico. (Doc. 85 at 4); (Doc. 178 at
2); (Doc. 48 at 8). The “tar lugger” being used
for the job overturned, spraying and burning Plaintiff with
hot tar. Id. The tar lugger was manufactured and
produced by Defendant Reeves Roofing Equipment Co., Inc.
(“Reeves”), and was purchased by C. Ortiz from a
third party approximately ten years before the incident.
(Doc. 173 at 3, ¶¶ 1-2); (Doc. 173-1 at 2). C.
Ortiz does not have a bill of sale or any inspection,
testing, maintenance, or repair records for the tar lugger.
(Doc. 173 at 3-4, ¶¶ 2-3). On October 15, 2012,
Defendant Great Northern Holding, LLC (d/b/a Great Northern
Building Products) (“Great Northern”) and Reeves
entered into an Asset Purchase Agreement in which Reeves sold
its assets to Great Northern. Id. at 4, ¶ 3. On
January 1, 2014, Great Northern assigned all of the assets it
acquired from Reeves to Defendant Harrisonville Equipment
Company (“HECO”). Id. at 4, ¶ 7.
Amended Complaint, Plaintiff brings the following claims
against Great Northern and HECO: (1) strict liability; (2)
negligence; and (3) reckless, willful, and wanton conduct.
(Doc. 85 at 5-6). Plaintiff contends Great Northern and HECO
are liable under these theories because: the tar lugger was
in an unreasonably dangerous condition as designed,
manufactured, marketed, assembled and/or placed into the
stream of commerce; Great Northern and HECO issued no
warnings or instructions to potential users regarding such
dangers, or any warnings issued were inadequate; and Great
Northern and HECO failed to train workers regarding the
dangers of the tar lugger, allowed laborers to be exposed to
the extreme danger of working with the tar lugger, and knew
or should have known that there was a substantial likelihood
that employees would suffer serious injury or death.
Northern and HECO contend they are entitled to summary
judgment on Plaintiff's strict liability claim because
they did not supply and had no connection to the tar lugger
at issue. (Doc. 173 at 5-6). Great Northern and HECO further
claim they are not liable as successors to Reeves because
they never produced or marketed Reeves tar luggers and they
did not assume Reeves' liabilities. Id. at 6-8.
Finally, Great Northern and HECO contend Plaintiff's
negligence claim against them fails because Great Northern
and HECO do not have a sufficient connection with Plaintiff
or the allegedly defective tar lugger to create a duty to
warn. (Doc. 173 at 5-9). Great Northern and HECO have not
contested Plaintiff's claim for reckless, willful, and
Response, Plaintiff states there are genuine issues of
material fact regarding whether Great Northern and HECO are
liable as successors to Reeves. (Doc. 178 at 1).
Specifically, Plaintiff contends that Great Northern and HECO
added the tar lugger product line to their roofing products,
they continued to market and advertise the Reeves tar lugger
and the parts necessary to repair it, and customers who
ordered a Reeves tar lugger from Great Northern and HECO
expected to receive a product from Reeves. Id. at
5-6. Therefore, Plaintiff argues Great Northern and HECO are
culpable under a successor liability theory.
their Reply, Great Northern and HECO state that they have
never placed Reeves tar luggers into the stream of commerce
and that their tar luggers are distinct products from Reeves
tar luggers. (Doc. 180 at 2-4). They further contend that
Plaintiff failed to specifically controvert Defendants'
material facts and that the testimony Plaintiff relies on for
his contentions was taken out of context. Id. at
4-5. Great Northern and HECO maintain they are not liable
under a successor-liability theory, did not have a duty to
warn, and ask the Court to dismiss Plaintiff's strict
liability and negligence claims against them. Id. at
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is material if it could have an
effect on the outcome of the suit. Smothers v. Solvay
Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). A
dispute over a material fact is genuine if the evidence
presented could allow a rational jury to find in favor of the
non-moving party. EEOC v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). In
considering a summary judgment motion, the court views the
facts in the light most favorable to the non-moving party and
draws all reasonable inferences in favor of that party.
Shero v. City of Grove, 510 F.3d 1196, 1200 (10th
Cir. 2007). The court cannot weigh the evidence and determine
the truth of the matter, but instead determines whether there
is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 243 (1986).
seeking summary judgment bears the initial burden of showing
that there is no genuine dispute as to a material fact.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998). When that party does not have the burden of
persuasion at trial, it can satisfy its burden at the summary
judgment stage by identifying a lack of evidence on an
essential element of the claim. Id. at 671. If the
movant satisfies its burden, the burden shifts to the
party opposing summary judgment cannot rest on the pleadings,
but must go beyond the pleadings and “designate
specific facts so as to make a showing sufficient to
establish the existence of an element essential to that
party's case in order to survive summary judgment.”
Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir.
2000). The non-movant must “set forth specific
facts” from which a rational trier of fact could find
in the non-movant's favor, identifying those facts in
affidavits, deposition transcripts, or incorporated exhibits.
Adler, 144 F.3d at 671 (internal quotation marks
omitted). The party cannot rest on ignorance of the facts, on
speculation, or on unsubstantiated conclusory allegations.
Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136
(10th Cir. 2003); Conaway v. Smith, 853 F.2d 789,
794 (10th Cir. 1988). “A fact is ‘disputed'
in a summary-judgment proceeding only if there is contrary
evidence or other sufficient reason to disbelieve it; a
simple denial, much less an assertion of ignorance, does not
suffice.” Grynberg v. Total S.A., 538 F.3d
1336, 1345 (10th Cir. 2008).
Strict Products and Successor Liability
New Mexico law, a strict products liability claim requires
the plaintiff to prove the following elements: (1) the
product was defective; (2) the product was defective when it
left the hands of the defendant and was substantially
unchanged when it reached the user or consumer; (3) because
of the defect, the product was unreasonably dangerous to the
user or consumer; (4) the consumer was injured or damaged;
and (5) the defective product was the proximate cause of the
injury or damage. Garner v. Raven Indus., Inc., 732
F.2d 112, 114 (10th Cir. 1984). For a strict products liability
claim, “a supplier in the business of putting a product
on the market is liable for harm caused by an unreasonable
risk of injury resulting from a condition of the product or
from a manner of its use.” UJI 13-1406 N.M.R.A.
“The purpose behind the strict ...