Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Baird v. Wernerco Services, Inc.

United States District Court, S.D. Texas, Houston Division

August 6, 2019

Perry Baird. Plaintiff,
v.
Wernerco Services, Inc. and Lowe's Home Centers, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller Senior United States District Judge

         Pending before the court is a motion for summary judgment filed by defendant Lowe's Home Centers, LLC (“Lowe's”). Dkt. 15. Plaintiff Perry Baird responded. Dkt. 18. Having reviewed the motion, the evidentiary record, and the applicable law, the court is of the opinion that the motion for summary judgment (Dkt. 15) should be GRANTED.

         I. Background

         According to Baird's live complaint, Baird visited a Lowe's Home Improvement Center (owned and operated by Lowe's Home Center, LLC) in Kingwood, Texas and purchased a six-foot step ladder manufactured by Wernerco Services, Inc. Dkt. 1, Ex. A ¶ 7. In March 2016, Baird used the ladder while cleaning or refinishing some kitchen cabinets in his home. Id. Baird claims he fell from the ladder and suffered substantial injuries after the ladder failed by coming apart at the locking arms. Id.

         On March 19, 2019, Baird filed his original petition in state court, asserting products-liability claims and claims for breach of warranty and negligence against Wernerco Services, Inc. and Lowe's (collectively “Defendants”). Dkt. 1., Ex. A. Defendants removed the case to federal court. Dkt. 1. Lowe's now moves for summary judgment on the ground that it is a non-manufacturing seller of the Werner six-foot step ladder and is therefore not subject to liability under Texas Civil Practice & Remedies Code § 82.003. Dkt. 15 at 3-7.

         II. Standard of Review

         A court shall grant summary judgment when a “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 genuinely in dispute only if a reasonable jury could return a verdict for the non-moving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If the party meets its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e). The court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008). The court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence; disregard all evidence favorable to the moving party that the jury is not required to believe; and give credence to the evidence favoring the non-moving party as well as to the evidence supporting the moving party that is uncontradicted and unimpeached. Moore v. Willis Ind. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000). Because the court sits in diversity jurisdiction over this action, Texas substantive law applies. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817 (1938).

         III. Analysis

         Section 82.003 provides that for products-liability claims, “a seller that did not manufacture a product is not liable for harm caused to the claimant by that product unless the claimant proves” one of seven exceptions. Tex. Civ. Prac. & Rem. Code. § 82.003(a). “In essence, § 82.003 denies, under the umbrella of products liability, recovery from a product seller who merely distributes a defective product.” Alonso v. Maytag Corp., 356 F.Supp.2d 757, 761 (S.D. Tex. 2005) (Hittner, J.). The plaintiffs' pleadings “need not specifically cite to any of the seven exceptions” so long as the plaintiffs “fairly state a claim that falls within any one or more of the exceptions.” Casas v. The Tire Corral, Inc., No. M-04-123, 2005 WL 6773889, at *1 (S.D.Tex. Mar. 31, 2005) (Crane, J.).

         A. Non-Manufacturing Seller

         For all of Baird's claims related to the defective ladder, Lowe's asserts that it is entitled to summary judgment under § 82.003. Dkt. 15. Baird contends in his response that Lowe's has failed to establish that it is a “seller” under § 82.003. Dkt 18 at 3. Section 82.001 defines a seller as “a person who is engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof.” Tex. Civ. Prac. & Rem. § 82.001(3). Section 82.003 expressly states that a seller that did not manufacture a product is not liable for harm unless an exception applies. Tex. Civ. Prac. & Rem. Code. § 82.003(a). Here, there is sufficient evidence that establishes Lowe's as a seller. First, Baird's petition expressly acknowledges that Lowe's sold Baird the allegedly defective ladder and identifies only Wernerco as the manufacturer. Dkt. 1, Ex. A at 3. Second, Lowe's provided evidence of the receipt documenting the sale of the ladder. Dkt. 16, Ex. I; Dkt. 20, Ex. B.

         Furthermore, Baird has failed to rebut Lowe's evidence. A non-movant cannot avoid summary judgment simply by presenting “conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.” TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Here, Baird merely presents conclusory allegations that Lowe's is not a seller. Dkt.18, ¶ 10. These allegations cannot overcome Lowe's proffered evidence to the contrary.

         B. Exceptions

         However, Lowe's status as a non-manufacturing seller is not dispositive. A seller may still be liable under § 82.003 if the plaintiff shows ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.