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Ramos v. Foam America, Inc.

United States District Court, D. New Mexico

April 5, 2018

REFUGIO RAMOS, Plaintiff,
v.
FOAM AMERICA, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THE HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE

         THIS 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 are DISMISSED.

         I. Background[1]

         On 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.

         In his 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. Id.

         Great 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 wanton conduct.

         In his 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.

         In 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 5-9.

         II. Legal Standard

         Summary 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).

         A party 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 non-movant. Id.

         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).

         III. Analysis

         A. Strict Products and Successor Liability

         Under 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).[2] 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 ...


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