finding allegations that store manager knew or should have known contaminated spinach had been found in other stores but failed to remove it from shelves adequately stated a claim for negligent failure to warn
How later courts described this case
- finding allegations that store manager knew or should have known contaminated spinach had been found in other stores but failed to remove it from shelves adequately stated a claim for negligent failure to warn
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
)
KYLE JUSTICE AND )
ANNALEAH JUSTICE, )
)
)
Plaintiffs, )
)
vs. ) Case No. 4:22-CV-00050-AGF
)
RURAL KING HOLDINGS, LLP )
AND BESTWAY (USA), INC., )
)
)
Defendants/Third Party Plaintiffs, )
)
vs. )
)
MARY FLAKE AND )
PATRICK FLAKE, )
)
)
Third Party Defendants. )
MEMORANDUM AND ORDER
This matter is before the Court upon Defendant Rural King Holdings, LLP’s
Motion to Dismiss. (Doc. No. 14). Decedent Ellieanna Marie Justice, the two-year old
daughter of Plaintiffs Kyle and Annaleah Justice, drowned in an above-ground pool in
her grandparents’ backyard. Defendant Bestway sold the pool to Rural King, who in turn
sold the pool to Decedent’s grandparents. Plaintiffs filed suit against Bestway and Rural
King. Rural King argues the claims against it should be dismissed based on Missouri’s
Innocent Seller statute, Rev. Stat. Mo. § 537.762. For the reasons set forth below, Rural
King’s motion will be denied.
I. Background
Taken as true for the purpose of this motion, Plaintiffs allege the following facts.
Decedent Ellieanna Justice drowned in an above-ground pool owned by her grandparents,
third party defendants Mary and Patrick Flake. Bestway designed and manufactured the
pool and sold it to Rural King. (Am. Compl., Doc. No. 5 at ¶¶ 13, 15). Rural King
constructed the same model of the pool on its premises. Id. at ¶ 17. Mary and Patrick
Flake purchased the pool and installed it at their home. Id. at ¶¶ 18-19. The pool is 51
inches tall and has a nylon strap around its circumference 14.25 inches above the ground.
Id. at ¶¶ 13-14. It was designed to be accessed via a ladder, which could be removed. Id.
at ¶ 20. Decedent’s family removed the ladder, but she nevertheless used the nylon strap
as a step to gain access to the pool and drowned. Id. at ¶¶ 22-25.
Plaintiffs allege four claims against Rural King related to Decedent’s death:
negligence (Count VI), breach of express warranty (Count VII), breach of implied
warranty (Count VIII), and strict liability (Count IX). Rural King argues the claims
against it must be dismissed pursuant to Missouri’s Innocent Seller statute, Rev. Stat. Mo.
§ 537.762. Plaintiffs respond that their claims against Rural King are not barred because
Rural King has failed to show Plaintiffs could obtain “total recovery” for their claim from
another defendant and the Innocent Seller statute does not apply in cases where
independent negligence claims are pleded.
II. Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Magee v. Trs. of Hamline Univ., Minn., 747 F.3d 532, 535 (8th Cir. 2014)
(citation omitted). The “court should construe the complaint liberally in the light most
favorable to the plaintiff.” Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008)
“[T]he complaint should be read as a whole, not parsed piece by piece to determine
whether each allegation, in isolation, is plausible.” Wilson v. Ark. Dep’t of Hum. Servs.,
850 F.3d 368, 371 (8th Cir. 2017) (citation omitted). Where the complaint contains
“well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
III. Discussion
This action was brought pursuant to this Court’s diversity of citizenship
jurisdiction. As such, Missouri law applies to substantive issues. Winthrop Res. Corp. v.
Stanley Works, 259 F.3d 901, 904 (8th Cir. 2001). Under Missouri law, a plaintiff may
bring a products liability claim against a defendant, situated anywhere in the chain of
commerce, if the defendant transferred the product, the product was used in a manner
reasonably anticipated, and either:
(a) [t]he product was then in a defective condition unreasonably dangerous
when put to a reasonably anticipated use, and the plaintiff was damaged as
a direct result of such defective condition as existed when the product was
sold; or
(b) [t]he product was then unreasonably dangerous when put to a
reasonably anticipated use without knowledge of its characteristics, and the
plaintiff was damaged as a direct result of the product being sold without an
adequate warning.
Mo. Rev. Stat. § 537.760.
However, “[a] defendant whose liability is based solely on his status as a seller in
the stream of commerce may be dismissed from a products liability claim.” Mo. Rev.
Stat. § 537.762. Dismissal is only appropriate if “the downstream seller can prove that
‘another defendant, including the manufacturer,’ is in the lawsuit from whom plaintiff
can obtain ‘total recovery.’” Gramex Corp. v. Green Supply, Inc., 89 S.W.3d 432, 445
(Mo. banc 2002) (quoting Mo. Rev. Stat. § 537.762).
The portions of the Innocent Seller statute that allow for interlocutory dismissal if
the seller can show another defendant is before the court and the plaintiff can obtain total
recovery against that defendant are substantive. See Gramex, 89 S.W.3d at 445. See also
Wichmann v. Proctor & Gamble Mfg. Co., No. 4:06CV1457 HEA, 2006 WL 3626904, at
*2 n.3 (E.D. Mo. Dec. 11, 2006) (finding the substantive provisions of § 537.762 are
applicable pursuant to the Erie doctrine); Thomas v. Brown & Williamson Tobacco
Corp., No. 06-0223-CV-W-SOW, 2006 WL 1194873, at *3 (W.D. Mo. Apr. 28, 2006).
Accordingly, those portions apply in this matter.
Plaintiffs argue the Innocent Seller statute does not apply because their claims
against Rural King are not “based solely on [its] status as a seller.” Mo. Rev. Stat. §
547.762(1) (emphasis added). Dismissal is not proper unless a defendant can show “that
its potential liability is based entirely on its status as a seller.” Spears v. Bayer Corp., No.
03-1151-CV-W-GAF, 2004 WL 7081940, at *3 (W.D. Mo. Mar. 29, 2004) (emphasis
added). Claims are not barred by the Independent Seller statute where the plaintiff also
alleges independent negligence claims. See Ali v. Trans Lines, Inc., No. 4:21CV214
HEA, 2022 WL 1316357, at *4 (E.D. Mo. May 3, 2022).
In Count VI, Plaintiffs allege a claim for negligent failure to warn against Rural
King. A seller of a product may be held liable for negligent failure to warn if the seller
(1) knows or has reason to know that the product is or is likely to be dangerous for its
intended use; (2) has no reason to believe the buyer will realize its dangerous condition;
and (3) fails to exercise reasonable care to inform them of its dangerous condition. Sapp
v. Morrison Bros., 295 S.W.3d 470, 484 (Mo. Ct. App. 2009); see also Spuhl v. Shiley,
Inc., 795 S.W.2d 573, 577–78 (Mo. Ct. App. 1990). A seller “who neither knows nor has
reason to know that a product manufactured by another is defective” is not “liable for
injuries caused by his product.” Welkener v. Kirkwood Drug Store Co., 734 S.W.2d 233,
241 (Mo. Ct. App. 1987). However, a seller is liable if it is aware of a defect but fails to
correct it. Hutchen v. Wal-Mart Stores E. I, LP, 555 F. Supp. 2d 1013, 1019 (E.D. Mo.
2008) (finding allegations that store manager knew or should have known contaminated
spinach had been found in other stores but failed to remove it from shelves adequately
stated a claim for negligent failure to warn).
Plaintiffs allege Rural King knew the pool’s design was defective because it
constructed the same model of pool in its showroom and was therefore aware that the
pool had a nylon strap which could be used by a small child to access the pool. They
claim Rural King failed to warn them of the danger, resulting in Decedent’s death. Rural
King argues that the act of displaying its products is inherent to its status as a seller and
does not give rise to knowledge of the potentially dangerous use of the strap to access the
pool. Whether Rural King had knowledge of the danger is a question of fact not properly
decided on a motion to dismiss. Plaintiffs adequately allege that Rural King was aware
of a defect in the product and failed to correct it. As such, they have stated a claim
against Rural King for negligent failure to warn. Because their claims are not based
solely on Rural King’s status as a seller, dismissal pursuant to the Innocent Seller statute
would not be proper. See, e.g., McMahon v. Robert Bosch Tool Corp., No. 4:18-CV-583
CAS, 2018 WL 3036455, at *3 (E.D. Mo. June 19, 2018) (where plaintiff alleges
defendant is independently negligent, dismissal of all claims is improper); McDonald v.
Char-Broil, LLC, No. 16-CV-6124-FJG, 2016 WL 6871275, at *2 (W.D. Mo. Nov. 21,
2016) (denying motion to dismiss any claims against defendant pursuant to Innocent
Seller statute because plaintiff pled independent claim of negligence); Riffle v. Frontera
Produce Ltd., No. 13-CV-0791-FJG, 2014 WL 5810201, at *5 (W.D. Mo. Nov. 7, 2014)
(“Here, plaintiff has sufficiently pled a claim for negligence, making the Innocent Seller
statute inapplicable at this time.”).
Plaintiffs further argue their claims against Rural King should not be dismissed
because Rural King has not shown that there is another defendant from whom they can
obtain total recovery. “Where it is unclear . . . that a total recovery can be had against the
parties remaining in suit, it is error to apply the innocent seller statute.” Davis v.
Dunham’s Athleisure Corp., 362 F. Supp. 3d 651, 659 (E.D. Mo. 2019) (citation
omitted). The remaining parties’ ability to satisfy a verdict must be established through
specific evidence. Thompson v. R.J. Reynolds Tobacco Co., No. 4:20-CV-980 MTS,
2020 WL 5594072, at *3 (E.D. Mo. Sept. 18, 2020). In its response, Rural King “assures
the Court that Bestway, as one of the leading manufacturers of pools and inflatables in
the country, is sufficiently insured to compensate Plaintiffs for their claims.” (Doc. No.
27 at 2). Although Rural King states that it could present Bestway’s insurance policy
limit to the Court, it has presented no evidence that Bestway has the ability to satisfy a
verdict. However, because the Court concludes that dismissal is not proper as the claims
against Rural King are not based solely on its status as a seller, it need not determine
whether Bestway could satisfy a verdict.
Accordingly,
IT IS HEREBY ORDERED that Defendant Rural King’s Motion to Dismiss is
DENIED. (Doc. No. 14).
a ee
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of July, 2022.