United States District Court, S.D. Texas, Houston Division
Perry Baird. Plaintiff,
Wernerco Services, Inc. and Lowe's Home Centers, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge
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.
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.
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.
Standard of Review
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).
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.).
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.
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.
Lowe's status as a non-manufacturing seller is not
dispositive. A seller may still be liable under § 82.003
if the plaintiff shows ...