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Defendant’s Motions for Summary Judgment on Sealed Container, Misrepresentation, and Maryland Consumer Protection Act Denied in Product Liability Case Involving Ladder Injury
Green v. Wing Enterprises, Inc.
In Green v. Wing Enterprises, Inc., Civ. No. RDB-14-1913 (Nov. 20, 2015), Plaintiffs advanced an “enhanced injury” product liability claim against Defendants, Wing Enterprises, Inc. (“Wing Enterprises”) and QVC, Inc. (“QVC”), arising from alleged injuries to Mr. Green due to his use of the “Little Giant” ladder (“Ladder”). Under Maryland law, a manufacturer may be liable under strict liability or negligence theories for an “enhanced injury”—an injury stemming from a manufacture or design defect where the defect did not cause the accident, but caused or enhanced the injury suffered. The underlying accident must be foreseeable to trigger “enhanced injury” liability. Plaintiff’s Complaint sounded in a violation of the Maryland Consumer Protection Act (“CPA”), MD. CODE ANN., COM. LAW § 13-301, et seq., and various state tort and contract law claims. In this opinion, the Court denied Defendant QVC’s Motions for Summary Judgment based on the sealed container defense, CPA, and misrepresentation.
By way of factual background, the action arose from Mr. Green’s fall and subsequent injury while using the Ladder, a product manufactured by Wing Enterprises. Mrs. Green saw the ladder advertised on QVC and allegedly decided to purchase it due to the “demonstrations and representations QVC made concerning the Ladder and its alleged quality and safety.” The Ladder arrived “new in the box” at the Plaintiffs’ residence and Plaintiffs contended that it was in the same condition when it arrived as when it left Wing Enterprises’ control. Mr. Green used the Ladder to close a second-story window during a storm. He suddenly fell from the ladder. As he fell, his thumb became lodged at the point in the Ladder where the flared outer rail met the straight inner rail, forcibly removing his thumb from his hand. After doctors determined that the thumb could not be reattached, they amputated one of his toes and repurposed it as a thumb. Plaintiffs admitted that, due to insufficient information, they did not assert that the Ladder caused Mr. Green’s fall.
Plaintiffs subsequently filed this action, arguing that the Ladder manufactured by Wing Enterprises and sold by QVC was defective and unreasonably dangerous. As an “enhanced injury” suit, Plaintiffs did not allege that Mr. Green’s fall caused the injuries in question. Rather, the Plaintiffs contended that Mr. Green suffered a secondary injury—the amputation of his thumb—due to the unreasonably dangerous nature of the Ladder. The Plaintiffs asserted that the open “V” between the Ladder’s central structure and the diagonal support arms constituted a design defect. The Plaintiffs asserted: strict liability against both Defendants (Count I); negligence against both Defendants (Count II); breach of warranty against both Defendants (Count III); misrepresentation against QVC (Count IV); violation of the CPA against QVC (Count V); and loss of consortium against both Defendants (Count VI).
QVC moved for summary judgment on the misrepresentation count against it on the basis of the sufficiency of evidence of the presence of the alleged false statement by QVC. Mrs. Green could not identify any specific statements allegedly made by QVC upon which she relied. Alternatively, even if the alleged statements were sufficiently specific, then they were “mere puffery” and no reasonable buyer would rely on them. Mrs. Green stated that she purchased the Ladder due to “all the different things that [QVC representatives] said it would do” and “they had their quality control people check it out and that they found it to be safe….” She also visited QVC’s website to read more information about the Ladder. QVC contended that Plaintiff’s inability to recall the precise wording of the allegedly false statements, nor the dates or times on which she watched the program, struck a fatal blow to Plaintiffs’ claim sounding in negligent misrepresentation. The Court concluded, however, that Maryland law did not require such specificity. Moreover, during the course of discovery, Plaintiffs identified the specific dates, times, and statements made by QVC representatives. For example, the two (2) QVC programs advertising the Ladder aired on April 5, 2009. QVC employees and Wing Enterprises representatives repeatedly stated that the Ladder was “a very safe, secure ladder,” noting the Ladder’s stability, security, and safety as a point on which the Ladder could be distinguished from its competitors. QVC also represented on its website that the Ladder was “built according to OSHA/ANSI standards of safety,” among others. Thus, those statements were capable of definition and not extravagant, empty boasts or “puffery.” Plaintiffs therefore raised a genuine dispute of material fact with respect to whether Mrs. Green relied on specific false statements regarding the Ladder’s safety when she made the decision to purchase the Ladder. Even if Mrs. Green could not recall the precise language used in the representations of safety and quality, she did recall watching the advertising programs and visiting QVC’s website and the Court did not consider the evidence presented to be speculative or circumstantial. Therefore, the Court denied QVC’s Motion for Partial Summary Judgment as to the misrepresentation count.
QVC sought partial summary judgment in its favor on the CPA claim on three (3) grounds: 1) the Greens failed to establish any specific untrue statements made at specific times by specific persons; 2) even if the Greens had made this showing, they lacked sufficient evidence of Mrs. Green’s reliance on any such statements; and 3) there is no evidence that QVC had knowledge of the alleged defect. Mrs. Green’s recollection of the general statements of safety and quality were not sufficient to satisfy the heightened pleading requirements of Rule 9(b), yet, discovery revealed specific statements regarding the safety of the Ladder (discussed above). Even under Rule 9(b), the particularity of this evidence was sufficient to establish the requisite “time, place, and contents” of the allegedly false statements. Further, Plaintiffs raised a genuine issue of material fact whether Mrs. Green relied on the statements in question after watching the QVC advertisements and visiting the QVC website. The fate of the claim therefore hinged on whether Plaintiffs also generated a genuine dispute of material fact regarding QVC’s knowledge of the false statements or reckless disregard for the truth of the statements.
QVC did not independently test the products it promotes, and instead relied on sellers to voluntarily submit documentation of the product’s safety and quality. QVC would not ask the seller about the accident history, but rather “would expect [the seller] to volunteer information about the accident history of the product.” By relying on the seller to volunteer any negative accident history rather than conducting an independent verification of the seller’s claims, QVC was “placing enormous trust in the good intentions of the seller.” A genuine dispute of material fact thus existed as to whether this trust was misplaced and QVC acted recklessly by conducting no independent inquiry into the product’s accident history. Additionally, at least four (4) individuals had contacted Wing Enterprises claiming injuries resulting from the entrapment of their fingers in the exposed “V” of the Ladder prior to Mrs. Green’s purchase. As such, QVC’s Motion for Partial Summary Judgment as to Plaintiff’s Consumer Protection Claim was denied.
Finally, QVC argued that the sealed container defense entitled QVC to summary judgment in its favor on all counts. Under Maryland law, the “sealed container” defense shields a seller from personal injury or property damage liability for a defective product if: (1) the product was acquired and then sold or leased by the seller in a sealed container or in an unaltered form; (2) the seller had no knowledge of the defect; (3) the seller in the performance of the duties he performed or while the product was in his possession could not have discovered the defect while exercising reasonable care; (4) the seller did not manufacture, produce, design, or designate the specifications for the product which conduct was the proximate and substantial cause of the claimant’s injury; and (5) the seller did not alter, modify, assemble, or mishandle the product while in the seller’s possession in a manner which was the proximate and substantial cause of the claimant’s injury. See MD. CODE ANN., CTS. & JUD. PROC. § 5-405(b). This defense is available, however, only to a seller who has not made “any express warranties, the breach of which were the proximate and substantial cause of the claimant’s injury.” MD. CODE ANN., CTS. & JUD. PROC. § 5-405(c)(6).
The Court determined that the sealed container defense was inapplicable because even if QVC established each element of the defense, it made certain express warranties that precluded its entitlement to this defense. Specifically, QVC represented, whether on its television programs or through its website, that the Ladder was a “perfect ladder,” “a very safe, secure ladder,” and “a fantastic ladder, but more than anything else, it’s a safe one.” QVC expressly claimed that the Ladder was “built according to OSHA/ANSI standards of safety.” These statements constituted express warranties in that they assured potential customers that the Ladder will be safe and is of a particular quality. Mr. Green suffered an injury when his thumb became entrapped in the alleged defect—the open “V” between the Ladder’s main structure and the diagonal support rails—thereby breaching the express warranties of safety and quality. A reasonable jury could conclude that QVC made express warranties, the breach of which was the proximate and substantial cause of Mr. Green’s injury. Accordingly, QVC’s Motion for Summary Judgment regarding the sealed container defense was denied.
In sum, the Defendant’s three (3) motions for summary judgment were denied. The opinion indicated that the Court would address evidentiary motions and the Defendant’s Motion for Partial Summary Judgment as to Plaintiffs’ strict liability claim at a later-in-time Daubert hearing.
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