Day on Torts
Where there were genuine issues of material fact in a products liability case filed against the manufacturer and seller of an ATV, summary judgment for defendants was reversed.
In Vaulton v. Polaris Industries, Inc., No. E2021-00489-COA-R3-CV, 2022 WL 628502 (Tenn. Ct. App. Mar. 4, 2022), plaintiffs filed this product liability suit after their 14-year-old son was injured, losing his finger, when he and a friend were using a Polaris ATV. The accident occurred when the son noticed that the hook attached to the winch was in the wrong position. While the son was holding the hook, he had his friend push the out button on the winch, but the winch went inward instead of outward, causing the severe injury.
Plaintiffs filed this case against the manufacturer and the retail seller of the ATV, asserting that “the accident was the sole and proximate result of the negligence, failure to warn, and the manufacture and sale of a defective and unreasonably dangerous product[.]” Defendants both filed motions for summary judgment, and in conjunction with these motions and responses thereto, several depositions were filed with the court. Plaintiffs’ injured son testified that he had never seen an owner’s manual for the ATV; that the ATV had never had a tie strap/tether on the winch; and that he could not have done anything differently on the day of the accident. Plaintiff father testified that, in his view, the winch should have had a rubber stopper on it as a safety device and that the winch should have had a tether. Plaintiffs also testified that the winch on this ATV had never been used before.
The employee of defendant seller who assembled ATVs for defendant seller testified that a kink in the winch cable could have caused the winch to come in instead of going out when the out button was pushed; that he had personally experienced reverse spooling due to kinking on a winch; that reverse spooling could not happen if the winch had never been used; that every ATV he had assembled while employed had come with a pre-installed tether strap as a safety feature; that rubber stoppers were not used on these types of steel cable winches; that rubber stoppers were used to reduce rattle rather than as safety devices; that there was a period of time between the assembly of the ATV and its sale to plaintiffs during which he did not know what happened to the vehicle; and that plaintiffs were provided an owner’s manual and DVD, as such were found in the ATV glovebox during a post-incident inspection. The salesperson who sold the ATV to plaintiffs testified that she was not certain whether there was a tether strap on the ATV; that safety stops were only included on certain add-on winches from the manufacturer; and that she could not remember whether she specifically went over certain safety information with plaintiffs.
Based on this evidence, the trial court granted summary judgment to defendants, but the Court of Appeals partially reversed.
On appeal, the Court looked at four issues. First, the Court considered whether the trial court “erred in determining there was no genuine issue of material fact as to whether the winch-hook came with a tether attached.” Defendant seller asserted that pursuant to Tenn. Code Ann. § 29-28-102(7), “Plaintiffs’ products liability claim against it cannot survive unless it alleges and proves one of five statutory exceptions under Tenn. Code Ann. § 29-28-106.” Here, plaintiffs were attempting to fall within the second exception which applies when “a Seller alters or modifies a product and the alteration or modification was a substantial factor in causing the harm for which the recovery of damages is sought.” While defendant seller argued that no modifications were made to the winch and that its assembly employee had never seen an ATV without a tether strap, plaintiffs presented testimony that there was never a tether strap on the winch, and defendant’s salesperson could not say whether the tether strap was attached when the ATV was sold to plaintiffs. Because inferences must be drawn in favor of the non-moving party when considering a motion for summary judgment, the testimony in this case created a genuine issue of material fact as to whether there was a tether strap attached to the winch when it arrived at the seller and/or when it was delivered to plaintiffs. Summary judgment on this issue was reversed.
The second issue was whether the trial court correctly granted summary judgment on the issue of whether plaintiffs were provided with an owner’s manual or safety instructions. While plaintiff father and son testified that they were not given an owner’s manual, defendant’s assembly employee stated that he specifically knew that an owner’s manual was provided. Moreover, an owner’s manual and safety DVD were found in the glovebox of the ATV during the post-accident inspection. The Court of Appeals stated that “Plaintiffs’ generic assertions that they did not receive the items do not create a genuine issue of material fact,” and that “Plaintiffs may not rest on the mere possibility that a jury would not credit undisputed evidence of the location of the safety materials.” Accordingly, summary judgment on this issue was affirmed.
Third, the Court considered whether “there was a genuine issue of material fact as to whether the [ATV’s] winch reverse-spooled.” Defendant manufacturer asserted that any evidence that the winch might have reverse-spooled was speculative, but the Court of Appeals disagreed. The Court noted that defendant seller’s employee testified as to this possible cause of the accident, and that plaintiffs testified that the winch had never been used before. The Court concluded that there was “evidence in the record to support that [the incident] could have been caused by the [ATV’s] winch being reverse-spooled,” and whether to believe plaintiffs that the winch had not been used prior to the incident was a question for the jury. The Court stated, “At the heart of this litigation is the evidence that when [the son] instructed his friend to press the “out” button, the cable went in. At a minimum, this discrepancy whereby pushing the “out” button caused the cable to go in suggests a problem with the [ATV’s] winch.” Summary judgment on this issue was thus reversed.
Finally, the Court addressed the trial court’s ruling that the manufacturer “had no duty to attach a rubber stoper to the otherwise defective or unreasonably dangerous winch.” Defendant relied on testimony stating that a rubber stopper is not a safety device, while plaintiffs pointed to testimony from plaintiff father and defendant’s salesperson that it is in fact a safety device. While the parties and trial court couched this issue in terms of whether a duty existed, the Court of Appeals found that the issue was actually whether a duty was breached. The Court explained:
This is a products liability case, at least in part, and [the manufacturer’s] duties with respect to not putting defective or unreasonably dangerous products on the market is established by statute. Whether a rubber stopper is a safety device; whether a rubber stopper would have prevented [the son’s] accident; and whether [the manufacturer] should have installed a rubber stopper on the [ATV’s] winch, all implicate factual matters in dispute. At the summary judgment stage, we do not weigh evidence, nor do we engage in credibility determinations regarding the deponents.
Because there was contradictory testimony and evidence, summary judgment on this issue was reversed.
The Court of Appeals was correct in partially reversing summary judgment in this products liability case. The issues involved questions of fact and determinations of credibility, neither of which are appropriately decided at the summary judgment stage.
This opinion was released 1.5 months after oral arguments in this case.