Darnell v. Yamaha Motor Corporation, USA

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DOMINIQUE DARNELL, }

}

Plaintiff, }

}

v. } Case No.: 2:17-cv-00202-MHH

}

YAMAHA MOTOR }

CORPORATION, USA, et al., }

}

Defendants. }

MEMORANDUM OPINION

The plaintiff in this products liability case, Dominique Darnell, suffered

injuries when she fell off the back of a Yamaha WaveRunner personal watercraft.

Ms. Darnell contends that the WaveRunner was unmerchantable because it lacked

devices that would prevent a passenger from falling backwards or stop the engine in

the event of a fall. She seeks damages from defendants Yamaha Motor Corporation,

USA, Yamaha Motor Manufacturing Corporation of America, and Yamaha Motor

Co., Ltd., for breach of the implied warranty of merchantability under Alabama Code

§ 7-2-314. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Yamaha has

moved for summary judgment on Ms. Darnell’s claim. (Doc. 48). For the reasons

explained below, the Court will grant the motion. (Doc. 48).1

I. Summary Judgment Standard

“The court shall grant summary judgment 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). To demonstrate that there is a genuine dispute

as to a material fact that precludes summary judgment, a party opposing a motion

for summary judgment must cite “to particular parts of materials in the record,

including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A).

“The court need consider only the cited materials, but it may consider other materials

in the record.” FED. R. CIV. P. 56(c)(3).

When considering a summary judgment motion, a district court must view the

evidence in the record and draw reasonable inferences from the evidence in the light

most favorable to the non-moving party. Asalde v. First Class Parking Sys. LLC,

898 F.3d 1136, 1138 (11th Cir. 2018). Accordingly, he Court views the evidence in

the light most favorable to Ms. Darnell.

1 Yamaha also has moved to exclude Ms. Darnell’s expert witness. (Doc. 50). And Ms. Darnell

has moved for partial summary judgment as to all of Yamaha’s affirmative defenses. (Doc. 43).

Because the Court will grant Yamaha’s summary judgment motion, these motions are moot.

II. Background

The relevant facts concerning Ms. Darnell’s accident are not in dispute. On

July 4, 2016, Ms. Darnell was riding as a rear passenger on a Yamaha WaveRunner

jet ski at Logan Martin Lake in Alabama. (See Doc. 47-1, pp. 18-19, tpp. 65-72;

Doc. 47-8; Doc. 47-9, pp. 12-15, tpp. 42-54). The seat of the WaveRunner is

designed to carry up to three people: the driver and one or two back passengers.

(See Doc. 47-8). The WaveRunner does not have handles, straps, or a bar for back

passengers to grasp; it has handlebars only for the driver. (See Doc. 47-8).

Several warning labels are affixed to the WaveRunner. For example, the label

under the front handlebars states:

A WARNING

e Read the Owner’s Manual, the Riding Practice Tips, the Riding

Instructions card, and all labels before operating; and

e Wear a wetsuit to protect against injuries to orifices (rectum and

vagina) from strong streams of water from the jet nozzle, or from

impact with the water surface. ...

e Passengers should firmly hold on to the person in front of them and

place feet on the footrest floor. Otherwise, passengers could lose

balance and fall.

(Doc. 47-8, p. 6). The label on the rear of the WaveRunner provides:

A WARNING

• Strong streams of water from the jet nozzle can be dangerous, and can

result in serious injury when directed at the body orifices (rectum and

vagina).

• Wear a wetsuit to protect body.

• Do not board vehicle if operator is applying throttle.

(Doc. 47-8, p. 4). Ms. Darnell was not wearing a wetsuit on the day of her accident.

(Doc. 47-11, p. 15, tpp. 53-56).

At the time of the accident, Ms. Darnell was seated behind the driver, Thomas

Moland, holding on to the straps of his lifejacket. (Doc. 47-9, pp. 13–14, tpp. 48–

49). At some point, while the WaveRunner was travelling across the water, Ms.

Darnell fell in the lake. (Doc. 47-9, p. 16, tp. 57). She testified: “I just know we

were heading back and the next thing I know I was in the water. I’m not sure -- I

fell directly off, and I’m not really sure how, like what exactly happened.” (Doc.

47-9, p. 16, tp. 57). Mr. Moland testified that he does not know how Ms. Darnell

fell; he simply “turned around and looked” and saw her in the water. (Doc. 47-1, p.

21, tp. 77).

After the fall, Ms. Darnell needed medical attention. An ambulance took her

to UAB Hospital. (Doc. 47-9, p. 19, tp. 70). She stayed at the hospital for seven

days to receive treatment for gastrointestinal injuries, went home for a week, and

then returned to the hospital for a 12-day stay for more treatment. (Doc. 47-9, pp.

19–20, tpp. 70–73). At her deposition, she testified that she needed physical therapy

and surgery for a hernia and a diastasis recti (separation of the abdominal muscles)

that had developed as a result of the trauma she suffered in the accident. (Doc. 47-7,

p. 19, tpp. 70–72).

Seeking compensation for her injuries, Ms. Darnell sued Yamaha for breach

of the implied warranty of merchantability under Alabama Code § 7-2-314. (Doc.

1, pp. 4–5). In her complaint, Ms. Darnell contends that Yamaha breached the

implied warranty of merchantability for the WaveRunner because “[t]he jet ski was

defective and not fit for the ordinary purposes for which the jet ski was to be used.”

(Doc. 1, p. 4, ¶ 22). She asserts that the WaveRunner “was designed and

manufactured to carry passengers but was not designed or manufactured with a fixed

handle, seat strap, backrest, raised seat back, ‘sissy bar,’ or other device to prevent

passengers from falling backward into the water. It also did not have an engine

cutoff, or ‘kill’ switch, for passengers seated in the rear of the jet ski to utilize in the

event they were unintentionally ejected from their seat.” (Doc. 1, pp. 4–5, ¶ 23).

Yamaha contends that the defendants are entitled to judgment as a matter of

law on Ms. Darnell’s implied warranty of merchantability claim because the

Alabama Extended Manufacturer’s Liability Doctrine – the AEMLD -- subsumes or

forecloses Ms. Darnell’s breach of warranty claim, and she lacks evidence to prove

causation. (Doc. 48, pp. 1–2).2

III. Analysis

A. Ms. Darnell’s Theory of Recovery: U.C.C. vs. AEMLD

When a consumer is injured while using a manufacturer’s product, the

consumer frequently will assert tort claims against the product manufacturer or

distributor to recover damages for her injuries. Under Alabama law, those tort

claims include design or manufacturing defect claims or failure to warn claims under

the AEMLD and common law claims for negligent or wanton design or manufacture.

Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d 101, 106 (Ala. 2003).3

Those tort claims likely were not appealing to Ms. Darnell because of the defenses

that a manufacturer may raise to those claims. For example, a manufacturer may

defend against an AEMLD claim by showing that it warned against the injury that

the plaintiff suffered, and the plaintiff failed to heed the warning. (Doc. 44).

Tort defenses are not available to a manufacturer when an injured consumer

brings a claim against the manufacturer under the Uniform Commercial Code or

2 Based on its theory that Ms. Darnell’s warranty claim is just an AEMLD claim masquerading as

a warranty claim, Yamaha also argues that Ms. Darnell lacks admissible expert witness testimony

to support a design defect claim, and she lacks evidence of an available, existing safer alternative

design.

3 To prevail under the AEMLD, a plaintiff must prove that the product that caused her injury was

unreasonably dangerous. Casrell v. Altec Indus., Inc., 335 So. 2d 128, 132 (Ala. 1976).

U.C.C. (Doc. 44). Under the U.C.C., merchants may be subject to liability for

selling goods that breach the implied warranty of merchantability, a guarantee that

the goods are “fit for the ordinary purposes for which such goods are used.” Ala.

Code § 7-2-314(1), (2)(c).

The Alabama Supreme Court has issued several decisions that explain the

distinction between the tort standard and the warranty standard for manufactured

goods. The Alabama Supreme Court first described the relationship between

AEMLD claims and U.C.C. breach-of-implied-warranty claims in Shell v. Union Oil

Co., 489 So. 2d 569 (Ala. 1986). That case was before the Alabama Supreme Court

on an appeal from a summary judgment order.

The evidence in Shell indicated that, while working in a Goodyear plant, Mr.

Shell was exposed to a naphtha product supplied to Goodyear by the defendants.

The naphtha product contained benzene, a carcinogen. Mr. Shell sued the

defendants for breach of the implied warranty of merchantability of the naphtha

product under Ala. Code § 7-2-314. Mr. Shell asserted that, “because the substance

supplied by Defendants caused cancer, it could not be ‘fit for the ordinary purposes

for which such goods are used’; that is, because this is a cancer-causing substance,

it is unreasonably dangerous, and, therefore, cannot be merchantable.” Shell, 489

So. 2d at 571.

The Alabama Supreme Court disagreed. The Alabama Supreme Court

explained that the U.C.C. governs a claim that a product breached the implied

warranty of “commercial fitness and suitability”—i.e., the warranty that the

“‘[product was] fit for the ordinary purposes for which such goods are used.’” Shell,

489 So. 2d at 571–72 (emphasis and alterations in original) (quoting Ala. Code § 7-

2-314). The Alabama Supreme Court recognized that the naptha product contained

an “inherently dangerous chemical compound,” 489 So. 2d at 570, and looked to the

warnings that accompanied the product to evaluate the product’s commercial fitness.

The evidence demonstrated that benzene was a monitored chemical, that the material

safety data sheets that accompanied naptha shipments from the defendant suppliers

advised those using the product to wear safety gear and take immediate steps to wash

the product away should it come into contact with skin, and that Goodyear conducted

sampling to ensure that the benzene levels in the naptha product did not exceed

permissible levels. 489 So. 2d at 570. Given the information accompanying the

product that described the steps necessary for safe use, the Alabama Supreme Court

held that the naptha product, “made to Goodyear’s specifications—performed the

job it was intended to do; and the manufacturers’ warnings and precautions,

accompanying the products, were in keeping with their knowledge of its inherent

dangers” so that “these undisputed facts do not give rise to a warranty of

merchantability, as contended by Shell.” 489 So. 2d at 572.

The Alabama Supreme Court noted that Mr. Shell effectively was

complaining that the naptha product “was unreasonably dangerous,” such that he

“must find [his] remedy outside the warranty remedies afforded by the U.C.C.”

Shell, 489 So. 2d at 572. The Alabama Supreme Court stated that under Alabama

law, there is a “clear distinction between causes of action arising under tort law and

those arising under the U.C.C. as adopted in Alabama.” Shell, 489 So. 2d at 571.

Summing up, the Alabama Supreme Court opined: “Whether this product was

unreasonably dangerous, therefore, is not a question properly addressed in an action

brought under the provisions of the U.C.C. That question could properly be raised

in an action brought under Alabama's Extended Manufacturer's Liability Doctrine

(A.E.M.L.D.), but not in this U.C.C. action for breach of warranty.”

The Alabama Supreme Court reiterated the distinction between an AEMLD

claim and a U.C.C. breach of implied warranty of merchantability claim in

Yarbrough v. Sears, Roebuck & Co., another case in which the Alabama Supreme

Court reviewed a summary judgment ruling. Yarbrough v. Sears, Roebuck & Co.,

628 So. 2d 478 (Ala. 1993). The evidence in that case demonstrated that Mr.

Yarbrough bought a kerosene heater. The heater was sold with instructions and

warnings for safe use. Those warnings included an instruction that the buyer should

not use gasoline to fuel the heater. The written instructions provided with the heater

stated:

Never use any fuel other than water-clear kerosene (ASTM No. 1–K

kerosene). Never use gasoline. Use of gasoline can lead to

uncontrollable flames resulting in destructive fire. Even kerosene

contaminated with small amounts of gasoline, or similarly volatile

materials, can be hazardous. Never use a can for kerosene that has

previously been used for gasoline, paint thinner, or solvents.

628 So. 2d at 481. A label on the side of the heater included the following warning:

Risk of explosion. Never use gasoline or other inflammable liquids in

this heater. Use only water-clear ... kerosene.

628 So. 2d at 481. Mr. Yarbrough put gas in the kerosene heater, and the heater

caught fire. 628 So. 2d at 480.

Mr. Yarbrough asserted tort claims against Sears under the AEMLD for the

sale of a defective, unreasonably dangerous product and for negligent and wanton

design and failure to warn, and he asserted a claim against Sears for breach of the

implied warranty of merchantability. His warranty claim was based on his

contention that the heater was unreasonably dangerous as designed “and therefore

could not be merchantable.” 628 So. 2d at 483.

On the evidence before it, the Alabama Supreme Court affirmed the trial court

order granting Sears’s motion for summary judgment. The Alabama Supreme Court

opined:

The heater at issue was designed to be fueled with only kerosene. When

it is used properly—that is, fueled with kerosene—it meets an ordinary

consumer’s expectation by heating the house.

628 So. 2d at 481. After evaluating Mr. Yarbrough’s tort claims, the Alabama

Supreme Court stated that under Alabama law, Mr. Yarbrough could not recast his

claim that the heater was unreasonably dangerous as a warranty claim.

“Such an argument ignores the clear distinction between causes of

action arising under tort law and those arising under the U.C.C. as

adopted in Alabama.” Shell v. Union Oil Co., 489 So. 2d 569, 571 (Ala.

1986). Whether the kerosene heater was unreasonably dangerous is not

a question properly addressed in a claim alleging breach of warranty

under the U.C.C., but it could be, and was, properly raised in a claim

under the AEMLD.

Yarbrough, 628 So. 2d at 483. Years later, discussing its decision in Yarbrough, the

Alabama Supreme Court highlighted the warnings that accompanied the heater and

noted that “[t]he Yarbroughs did not present any evidence indicating that the heater

was ‘[un]fit for the ordinary purposes for which such goods are used.’” Spain v.

Brown & Williamson Tobacco Corp., 872 So. 2d 101, 108 (Ala. 2003) (quoting

Shell, 489 So. 2d at 571).

In Spain, the Alabama Supreme Court, on a certified question from the United

States Court of Appeals for the Eleventh Circuit, examined the viability of a claim

for breach of the implied warranty of merchantability with respect to the sale of

cigarettes. After smoking for many years, Mrs. Spain developed lung cancer and

died. The defendants in Spain removed that Alabama wrongful death action to

federal court and then moved to dismiss the complaint pursuant to Rule 12 of the

Federal Rules of Civil Procedure. The district court dismissed with prejudice Mr.

Spain’s claims for design defect and failure to warn under the AEMLD, negligence,

wantonness, and breach of the implied warranty of merchantability. Spain v. Brown

& Williamson Tobacco Corp., 230 F.3d 1300, 1303-04 & n.2 (11th Cir. 2000).4 Mr.

Spain appealed, and the Eleventh Circuit certified several questions to the Alabama

Supreme Court.

In its opinion certifying the questions to the Alabama Supreme Court, relying

on Mr. Spain’s complaint, the Eleventh Circuit recounted that Mrs. Spain “started

smoking cigarettes in 1962, when she was ‘approximately 15 years of age and was

a multi-pack per day smoker.’ She became addicted to the nicotine in cigarettes early

on and was unaware at the time that she was becoming addicted.” 230 F.3d at 1303

(quoting Mr. Spain’s complaint). The Eleventh Circuit pointed out that “federally

mandated warnings” concerning the dangers of smoking cigarettes “did not appear

until well after” 1962. But, citing Cipollone v. Liggett Group, Inc., 505 U.S. 504

(1992), the Eleventh Circuit reasoned that “there is evidence that people in general

knew prior to 1962 that smoking is dangerous to health.” 230 F.3d at 1308-09. With

respect to Mr. Spain’s claim for breach of the implied warranty of merchantability,

the Eleventh Circuit stated:

As we read Spain’s complaint, his theory is that the cigarettes were unfit

for the ordinary purpose for which they are used because they caused

cancer, making them unreasonably dangerous and not merchantable.

The Alabama Supreme Court rejected a similar claim and stated that

4 Mr. Spain also asserted a conspiracy claim under Alabama law.

“[s]uch an argument ignores the clear distinction between causes of

action arising under tort law and those arising under the [Uniform

Commercial Code] as adopted in Alabama.” Shell v. Union Oil Co., 489

So. 2d 569, 571 (Ala. 1986) (no claim for breach of warranty regarding

product containing benzene, a carcinogen known to cause leukemia,

when product was in conformance with specifications; such a claim is

instead an AEMLD action). Unless the Alabama Supreme Court tells

us differently, we are convinced that the complaint does not state a

claim for breach of an implied warranty of merchantability.

230 F.3d at 1310-11.

The Alabama Supreme Court disagreed with the Eleventh Circuit’s analysis

of Mr. Spain’s warranty claim and discussed at length the line of Alabama decisions

concerning the distinction between product defect claims that plaintiffs frame as tort

claims and warranty claims concerning the commercial fitness of a product. The

Alabama Supreme Court began by noting that the factual allegations relating to Mr.

Spain’s breach of warranty claim were sparse:

The foregoing bare-bones facts are before us. Carolyn became a heavy

smoker after beginning to smoke in 1962 when she was approximately

15 years old. We know that she became addicted to the nicotine in

cigarettes. We know that she was unaware of her addiction at the outset.

She alleges in her complaint that she was unable to stop smoking. She

was diagnosed with lung cancer on August 15, 1998, and died within

one year.

872 So. 2d 105. Listing the various facts that had yet to be developed concerning

Mr. Spain’s claim, the Alabama Supreme Court observed:

Facts not before us are legion. Spain points out that the federal district

court dismissed his complaint before any discovery began. Presumably,

as common sense suggests, Carolyn at some point became aware that

she was addicted to cigarettes, but we do not know that for sure. We do

not know whether Carolyn experienced any physical consequences of

smoking before she was diagnosed with lung cancer in 1998 . . . We

know from matters generally regarded as public knowledge that the

surgeon general of the United States has mandated the inclusion of

warnings on packages of cigarettes since sometime in the 1960s. We

further know that the text of the warning has been adjusted over the

years. However, the parties have not furnished us with information

regarding the various formulations in the text and the dates of the

changes.

872 So. 2d at 105. The information not before the Alabama Supreme Court was

significant because, “[i]n each case alleging a breach of the implied warranty of

merchantability, the determination whether there was a breach requires a fact-

intensive analysis.” 872 So. 2d at 108.

Turning to the facts relating to the Shell case, the Alabama Supreme Court

explained that it affirmed summary judgment in favor of the distributors of the

carcinogenic substance in that case because the facts in that case demonstrated that

“the naphtha product was ‘fit for the ordinary purposes for which such goods are

used.’” 872 So. 2d at 108 (quoting Shell, 489 So. 2d at 571). The Alabama Supreme

Court highlighted the following analysis in the Shell decision:

To cover the initial bare bones question (Was there a duty owed?) with

flesh, we should reask the question: Did the sale of the subject product

give rise to an implied warranty of merchantability in the sense that

these two manufacturers promised the employee that he would not be

injured by his use of or contact with their product? The answer must be

made in the context of § 7–2–314: ‘[Whether this product was] fit for

the ordinary purposes for which such goods are used.’ In this instance,

the product—made to [the employer’s] specifications—performed the

job it was intended to do; and the manufacturers’ warnings and

precautions, accompanying the products, were in keeping with their

knowledge of its inherent dangers. Thus, any duty arising under this

section of the Code was not breached. Indeed, more precisely, these

undisputed facts do not give rise to a warranty of merchantability, as

contended by Shell.

872 So. 2d at 107 (quoting Shell, 489 So. 2d at 571-72) (emphasis in Spain, not is

Shell). The Alabama Supreme Court cautioned: “Shell does not stand for the

proposition that a product ‘unfit for the ordinary purposes for which such goods are

used’ cannot be unmerchantable.” 872 So. 2d at 108.

Turning to Yarbrough, as noted, the Supreme Court stated that it affirmed

summary judgment on the warranty claim in that case because the Yarbroughs “did

not present any evidence indicating that the heater was ‘[un]fit for the ordinary

purposes for which such goods are used.’” Spain, 872 So. 2d at 108 (quoting Shell,

489 So. 2d at 571).

Then, the Alabama Supreme Court reviewed its decision in Ex parte General

Motors Corp., 769 So. 2d 903 (Ala. 1999). In that case, the plaintiff bought a car

that turned out to be a lemon. The plaintiff testified that shortly after he bought the

car, it began stalling and would stall an average of three times per week. The dealer

tried to repair the car, but the car continued to stall. Once, when the car stalled, the

power steering and brakes failed, and the plaintiff lost control of the car. The car

slid into a utility pole, and the plaintiff was injured in the accident. Spain, 872 So.

2d at 109; General Motors, 769 So. 2d at 905-06. The plaintiff asserted against the

dealer a claim for breach of the implied warranty of merchantability. The trial court

entered judgment for the dealer on that claim, and the Alabama Supreme Court

reversed, finding that disputed questions of fact precluded summary judgment.

Describing the aspects of its decision in General Motors that bore upon the

certified question in Spain, the Alabama Supreme Court wrote:

‘[t]o establish his claim of breach of the implied warranty of

merchantability, Tucker must “ ‘prove the existence of the implied

warranty, a breach of that warranty, and damages proximately

resulting from that breach.’” ‘[Tucker v. General Motors Corp.,] 769

So.2d [895,] 901 [(Ala.Civ.App.1998)] (quoting Barrington Corp. v.

Patrick Lumber Co., 447 So.2d 785, 787 (Ala.Civ.App.1984), quoting,

in turn, Storey v. Day Heating and Air Conditioning Co., 56 Ala.App.

81, 83, 319 So.2d 279, 280 (1975)). Because this case is before this

Court on appeal from a summary judgment in favor of GM and Bishop,

we are concerned only with whether Tucker presented substantial

evidence of each of these three factors so as to create a jury question.

As we have mentioned above, the only evidence in the record is

Tucker’s deposition and his affidavit. They contain uncontroverted

evidence that Tucker purchased the car in question from Bishop [the

automobile dealer]. It appears undisputed that Bishop is a ‘seller’ of

automobiles, as that term is defined in § 7–2–103, Ala. Code 1975.

Thus, § 7–2–314's requirement that the seller be a ‘merchant with

respect to goods of that kind’ is met, and the record shows that Tucker

has presented substantial evidence of the existence of the implied

warranty. The record also contains evidence tending to establish a

breach of the implied warranty of merchantability, because there was

undisputed evidence tending to show that the car stalled repeatedly

while Tucker was driving it and that Bishop failed to correct the

problem when he took the car to Bishop for repair.

. . .

[Under the AEMLD], in defining ‘defect,’ this Court incorporated into

AEMLD law some of the analysis applicable in cases arising, as does

this one, under the UCC doctrine of the implied warranty of

merchantability. Id. Specifically, this Court has combined the doctrine

of ‘fitness for the ordinary purpose intended’ of UCC law and the tort

concept of ‘unreasonably dangerous’ in defining ‘defect’ See Haven

Hills Farm, supra, for further discussion of AEMLD law.

We do not believe the fact that this Court borrowed some principles

from UCC law in developing a definition of ‘defect,’ as that term is

used in AEMLD cases, forces the conclusion that principles of AEMLD

law are always applicable in cases involving the implied warranty of

merchantability. In fact, this Court has continued to recognize the clear

distinction between AEMLD law and UCC law. See Yarbrough v.

Sears, Roebuck & Co., 628 So.2d 478 (Ala.1993), and Shell v. Union

Oil Co., 489 So.2d 569 (Ala.1986).

. . .

Given the uncontradicted evidence in this case, we conclude that

Tucker presented substantial evidence of a breach of the implied

warranty of merchantability and of damage and thereby created a

genuine issue of material fact.

872 So. 2d at 110-11 (quoting General Motors, 769 So. 2d at 912-13) (emphasis in

Spain).

Closing its discussion of Mr. Spain’s claim for breach of implied warranty of

merchantability, the Alabama Supreme Court stated unequivocally: “a claim

alleging breach of an implied warranty of merchantability is separate and distinct

from an AEMLD claim and is viable to redress an injury caused by an unreasonably

dangerous product.” Spain, 872 So. 2d at 111; see also Ex parte Integra LifeSciences

Corp., 271 So. 3d 814, 820 (Ala. 2018) (“A breach-of-warranty claim, however, is

‘separate and distinct from an AEMLD claim.’”) (quoting Spain, 872 So. 2d at 111).

Applying state court pleading standards, the Alabama Supreme Court held:

In paragraph 21 of his complaint, Spain alleged that the cigarettes

designed, manufactured, and sold by the manufacturers “were not fit

for the ordinary purposes for which they are used.” Thus, he alleged a

breach of the implied warranty of merchantability. Because this case is

before the Eleventh Circuit on a motion to dismiss, the record before us

does not contain any evidence indicating that the cigarettes smoked by

Carolyn were “fit for the ordinary purposes for which they are used.”

Therefore, this case is factually distinguishable from Shell and

Yarbrough.

Spain, 872 So. 2d at 108-09.

The Alabama Supreme Court was clear and direct in Spain; “a claim alleging

breach of an implied warranty of merchantability is separate and distinct from an

AEMLD claim and is viable to redress an injury caused by an unreasonably

dangerous product.” Spain, 872 So. 2d at 111. Therefore, the Court is not persuaded

by Yamaha’s argument that the AEMLD subsumes Ms. Darnell’s warranty claim.

If Ms. Darnell can identify disputed facts that would enable a jury to find an implied

warranty of merchantability, then Ms. Darnell may proceed with her warranty claim.

To decide whether Ms. Darnell is entitled to a trial, we turn to the evidence

concerning her warranty claim, mindful of the Alabama Supreme Court’s instruction

that a court’s review of a breach of warranty claim under Alabama law “requires a

fact-intensive analysis.” Spain, 872 So. 2d at 108.

B. Ms. Darnell’s Evidence

Factually, this case resembles the Shell case. The evidence shows that a

WaveRunner jet ski is intended to transport passengers across the surface of water

for recreation. The WaveRunner that Ms. Darnell rode on July 4, 2016 did just that.

Mr. Moland, who was driving the WaveRunner, testified that he had ridden on the

jet ski roughly three or four times before on the lake. (Doc. 47-1, p. 15, tp. 55).

There is no evidence that the WaveRunner stalled or malfunctioned in any way while

Ms. Darnell was riding on it. Compare General Motors. Mr. Saunders, the owner

of the WaveRunner, continued driving it on the lake with passengers after Ms.

Darnell’s accident until he sold the WaveRunner to Ms. Darnell’s lawyers. (Doc.

47-11, pp. 23-24, tpp. 88-90). This evidence demonstrates that the WaveRunner

operated as intended such that it was commercially “fit for the ordinary purposes for

which such goods are used.” See Ala. Code § 7-2-314(2)(c).

Yamaha did not warrant that the WaveRunner was accident-proof or that a

passenger never would fall from the watercraft. To the contrary, Yamaha advised

passengers that they could fall from the WaveRunner and warned riders to wear

wetsuits to prevent injuries like the ones Ms. Darnell suffered. As noted, the label

under the front handlebars states:

A WARNING

19

e Read the Owner’s Manual, the Riding Practice Tips, the Riding

Instructions card, and all labels before operating; and

e Wear a wetsuit to protect against injuries to orifices (rectum and

vagina) from strong streams of water from the jet nozzle, or from

impact with the water surface. ...

e Passengers should firmly hold on to the person in front of them and

place feet on the footrest floor. Otherwise, passengers could lose

balance and fall.

(Doc. 47-8, p. 6). The label on the rear of the WaveRunner provides:

A WARNING

e Strong streams of water from the jet nozzle can be dangerous, and can

result in serious injury when directed at the body orifices (rectum and

vagina).

e Wear a wetsuit to protect body.

(Doc. 47-8, p. 4).

Given this undisputed evidence, under Alabama law, Yamaha did not provide

an implied warranty that Ms. Darnell would not fall from the WaveRunner and be

injured. To paraphrase Shell and Spain:

Did the sale of the subject product give rise to an implied warranty of

merchantability in the sense that [Yamaha] promised the [WaveRunner

passenger] that he would not be injured by his use of or contact with

[its] product? The answer must be made in the context of § 7—2-314:

‘(Whether this product was] fit for the ordinary purposes for which such

goods are used.’ In this instance, the product... performed the job it

was intended to do; and the manufacturers’ warnings and precautions,

accompanying the products, were in keeping with their knowledge of

20

its inherent dangers. Thus, any duty arising under this section of the

Code was not breached. Indeed, more precisely, these undisputed facts

do not give rise to a warranty of merchantability, as contended by [Ms.

Darnell].

Spain, 872 So. 2d at 107 (quoting Shell, 489 So. 2d at 571-72) (emphasis in Spain).

Ms. Darnell argues that “[t]he purpose of a 2- or 3-person PWC is to safely

ride a passenger around on the water for entertainment” and that the PWC was not

fit for this purpose “because it is designed to permit passengers to foreseeably fall

off directly backwards, with legs spread, into the high-pressure from the jet nozzle.”

(Doc. 56, pp. 20–21) (emphasis added). But Shell, Yarbrough, and Spain indicate

that the scope of a warranty may be discerned from the available warnings. The

naphtha product in Shell was not unmerchantable because it caused cancer, and the

kerosene heater in Yarbrough was not unmerchantable because it posed a fire risk

when fueled with gasoline. The defendants in those cases warned against those very

risks and provided products that served the purpose for which they were designed,

with instructions that mitigated against the attendant risks associated with the

products. Unlike the car in General Motors, the products in Shell and Yarbrough

functioned as designed. So did the WaveRunner in this case. The risk of falling off

the personal watercraft in this case has no bearing on its merchantability, given the

warnings and instructions that accompanied the product. Because Yamaha did not

warrant that passengers would not fall from the WaveRunner or would not be injured

if they wore only a swimsuit while riding, Ms. Darnell’s warranty claim fails as a

matter of Alabama law.

To the extent that Ms. Darnell contends that Yamaha should have designed

the WaveRunner jet ski differently to include, for example, a backrest or an engine

cutoff, (Doc. 1), her product defect theory sounds in tort, not warranty, and she did

not assert a tort claim in her complaint. Therefore, the Court will not consider

evidence or arguments concerning alternative jet ski designs at this stage of the

litigation.

IV. Conclusion

For the foregoing reasons, by separate order, the Court will grant Yamaha’s

motion for summary judgment as to Ms. Darnell’s claim for breach of the implied

warranty of merchantability.

DONE and ORDERED this August 4, 2020.

Wi Hladld

Nadler 0 Liason _

UNITED STATES DISTRICT JUDGE

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