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Marlys Jensen v. Hy-Vee

May 13, 2011

MARLYS JENSEN, PLAINTIFF,
v.
HY-VEE, CORPORATION AND DOR-O-MATIC ILLINOIS LLC.,
DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER DENYING DEFENDANT DOR-O-MATIC'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant Dor-O-Matic (Illinois) LLC moves for summary judgment. Plaintiff, Marlys Jensen, resists Dor-O-Matic's motion for summary judgment*fn1 and moves for partial summary judgment on the affirmative defenses of contributory negligence, assumption of the risk, and failure to mitigate. DorO-Matic resists Jensen's motion for partial summary judgment.

BACKGROUND

The entrance to Hy-Vee contains an automatic door, which was manufactured by Dor-O-Matic. Normally, as a customer approaches the entrance, the right and left door panels automatically open toward the interior of the building. After the customer enters the building, the doors automatically return to their closed position. The automatic doors are also capable, however, of being "exits." This happens when an individual pushes on the door from the inside, which results in the door swinging out towards the parking lot. When this happens, a device mounted above each door leaf, called a breakaway switch, is supposed to shut the power off to the door.

On November 10, 2008, the right leaf of the automatic door had been pushed open from the inside, toward the parking lot. Instead of the power being shut off, however, the right leaf of the automatic door continued to automatically close and open opposite to what an entrance door would otherwise do. That is, when no one was near the door, the right leaf would remain open toward the parking lot; as a customer approached the door, it would automatically close.

While the automatic door was in this state, Jensen attempted to enter the Hy-Vee grocery store. As she entered, the right leaf closed and knocked Jensen to the ground. She suffered injuries to her wrist, ankle, and head. Jensen filed suit against Hy-Vee alleging a negligence claim and a premises liability claim. Jensen also brought sought against Dor-O-Matic alleging a negligence claim and a strict products liability claim. Hy-Vee and Dor-O-Matic both deny liability and raise the affirmative defense of contributory negligence. Dor-O-Matic also raises the affirmative defenses of assumption of the risk and failure to mitigate damages. Hy-Vee and Dor-O-Matic have also filed cross-claims against each other.

STANDARD OF REVIEW

Summary judgment is proper "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).*fn2 "A party asserting that a fact cannot be . . . disputed must support the assertion" either by "citing to particular parts of materials in the record," or by "showing that the materials cited do not establish the . . . presence of a genuine dispute[.]" Fed. R. Civ. P. 56(c)(1)(A)-(B). The movant can also establish the absence of a disputed material fact by showing "that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B). The burden is initially placed on the moving party to establish the absence of a genuine issue of material fact and that the party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ("[A] party seeking summary judgment always bears the initial responsibility of . . . demonstrat[ing] the absence of a genuine issue of material fact." (internal quotations omitted)).

Once the moving party has met its initial burden, the nonmoving party must establish "that a fact . . . is genuinely disputed" either "by citing to particular parts of materials in the record," or by "showing that the materials cited do not establish the absence . . . of a genuine dispute." Fed. R. Civ. P. 56(c)(1)(A)-(B). For purposes of summary judgment, the facts, and inferences drawn from those facts, are "viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

In determining whether a genuine issue for trial exists, the court applies the standard and burden associated with the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, (1986) ("The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict[.]").

South Dakota substantive law applies to Jensen's claims because this case is before the court on the basis of diversity. Hammonds v. Hartford Fire Ins. Co., 501 F.3d 991, 996 n.6 (8th Cir. 2007) ("We apply South Dakota substantive law because this diversity action was brought in the District of South Dakota, and the district court sitting in diversity applies the substantive law of the state in which it is located." (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938))).

ANALYSIS

I. Dor-O-Matic's Motion for Summary Judgment Dor-O-Matic argues that it is entitled to summary judgment with regard to Jensen's negligence and strict product liability claims. Jensen's negligence claim includes a defective design claim and a failure to warn claim. Jensen's strict product liability claim is also based on a defective design theory and a failure to warn theory.

A. Jensen's Negligent Defective Design Claim Dor-O-Matic argues that there is no expert testimony demonstrating that the automatic door was defectively designed. Jensen argues that expert testimony is not needed to establish a defective design. Jensen alternatively argues that if expert testimony is necessary, there is sufficient expert testimony to show a design defect with the door.

"To establish liability in negligence for defective product[,] . . . a plaintiff must show that the defendant failed to use the amount of care in designing . . . the product that a reasonably careful designer . . . would use in similar circumstances to avoid exposing others to a foreseeable risk of harm." Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397, 407 (S.D. 2007) (citing Restatement (Second) Torts § 395). "To determine whether the designer . . . used reasonable care, one must balance what the designer . . . knew or should have known about the likelihood and severity of potential harm from the product against the burden of taking safety measures to reduce or avoid the harm." Id. at 407 (citing Restatement (Second) Torts § 395).

"Whether a manufacturer knew or should have known of a particular risk involves technical issues . . . which lie beyond the comprehension of most jurors." Id. "Indeed, expert testimony is ordinarily required to establish a claim of negligence in a products liability action." Id. The court agrees with the reasoning in Burley and finds that Jensen's defective design claim requires expert testimony demonstrating that the door contained a design defect.

Hy-Vee's expert witness, Jens Mogensen, testified that he thought the breakaway switch had not been triggered because the cam "went under" the breakaway switch rather than trigger it. Docket 44-2 at 6. Mogensen also testified that the manufacturer could have designed the automatic door so that it had a longer cam. Docket 44-2 at 7. A jury could reasonably infer from this testimony that the automatic door was designed with a cam that was too short to trigger the breakaway switch. Mogensen also testified that the purpose of the breakaway switch was to cut the power to the door when triggered, which would mean that there would be "no way that the door [could] come back and close on someone[.]" Docket 44-2 at 4. This evidence supports Jensen's position that the door was defectively designed with a cam that was too short to trigger the breakaway switch, which would have prevented the door from automatically closing on an entrant after the door had been pushed open from the inside. In considering Mogensen's testimony in the light most favorable to Jensen, the court finds that there is sufficient evidence for the jury to reasonably conclude that the automatic door contained a design defect.

Dor-O-Matic also argues that there is no expert testimony establishing that the alleged design defect caused Jensen's injuries. Jensen argues that expert testimony is not needed to establish causation with regard to the negligent defective design claim. Jensen alternatively argues that there is sufficient expert testimony that would allow the jury to infer causation.

A "plaintiff must prove, among other things, that because of the manufacturer's [negligence], the accident occurred." Burley, 737 N.W.2d at 408. Burley's discussion about expert testimony with regard to causation in a negligent defective design claim was based on a rather complicated theory of causation. Specifically, the issue was whether the defendant failed to test and inspect its product with regard to the dangerousness of a hook that could be bent by a user. See id. at 407 (explaining that "even if the bendability of the hook arguably created a defect or dangerous condition in the product, expert testimony is needed to explain to the jury how the design of the [product] . . . proximately caused [the plaintiff's] injuries"). The South Dakota Supreme Court's decision in Burley therefore recognizes that expert testimony is required when there is a complicated causation issue in a product liability case. See id. at 408.

Jensen's causation theory appears to be that the door automatically swung shut and hit Jensen as she entered because the breakaway switch that otherwise would have stopped the door from forcefully closing on an entrant was not triggered. According to Jensen, it is "patently obvious that the accident would not have happened" had the door been designed in such a manner so that it would not automatically close on an entrant after the door had been pushed open from the inside. Cf. id. at 407 (citations omitted). Thus, Jensen argues that expert testimony is not required because the negligent defective design claim is not as complicated as the issue in Burley.

As was the case in Burley, however, there is evidence that the door may have been altered after the door was manufactured. For example, Jensen's own expert testified that there is evidence that the breakaway switch had been subjected to "extensive wear and tear" by customers and employees who pushed the doors open from the inside. Docket 44-13 at 5. Another witness testified that the door suffered some "metal fatigue" that may have prohibited the door from functioning properly. Docket 44-5 at 6. The court therefore finds that expert testimony is required to help the jury determine whether a subsequent alteration to the door or the alleged design defect caused Jensen's injuries. See Burley, 737 N.W.2d at 408 ("Here, it is outside the common experience and capability of a jury to determine . . . whether the alteration of the product by Horacek or [the defendant's negligence] was a proximate or legal cause of [the plaintiff's] injuries.").

Hy-Vee's expert, Mogensen, testified that had the breakaway switch been triggered, the automatic door would not have forcefully closed on Jensen as she entered Hy-Vee. Docket 44-2 at 4 (explaining that if the breakaway switch is triggered, "there's no power to [the door,] there's no way that door can come back and close on someone if it's operating appropriately"). Mogensen also testified that the cam "went under" the breakaway switch and that the cam could have been made longer. Docket 44-2 at 6, 7. Thus, the jury could reasonably conclude, based on Mogensen's testimony, that the cam was too short to ensure the triggering of the breakaway switch, which caused the door to continue to operate automatically and close on Jensen as she tried to enter Hy-Vee. See Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 256 (S.D. 1976) ("No specific defect need be shown if the evidence, direct or circumstantial, permits the inference that the accident was caused by a defect." (emphasis added)) overruled on other grounds, First Premier Bank v. Kolcraft Enters., Inc., 686 N.W.2d 430 (S.D. 2004). Viewing the evidence in the light most favorable to Jensen, the court finds that there is sufficient evidence to support Jensen's claim that a design defect in the automatic door caused the automatic door to close and hit her as she tried to enter Hy-Vee.

Dor-O-Matic argues in a footnote that Mogensen is not a qualified expert because he is not an engineer or designer of automatic doors. Docket 43 at 11 n.9. Though not entirely clear, Dor-O-Matic appears to argue that Mogensen's testimony is not admissible because he is not a qualified to give an expert opinion on whether the door contained a dangerous defect. See generally Fed. R. Evid. 702 (requiring the witness be "qualified as an expert by knowledge, skill, experience, training, or education"). Under Rule 56(c)(2), "[a] party may object that the material cited to support or dispute ...


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