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Rivera v. Adams Homes, LLC

United States District Court, S.D. Mississippi, Southern Division

July 8, 2014




BEFORE THE COURT are the Motions for Summary Judgment filed by Defendant Keller Smith Supply, Inc. [122], and Defendant Adams Homes, LLC [124], on January 10, 2014. Plaintiffs filed their Responses in Opposition [133] [134] to each respective Motion on February 14, 2010, and Defendants each filed a Rebuttal [138] [139] on February 28, 2014. Having considered the parties' submissions, the record, and relevant legal authorities, the Court is of the opinion that Defendants are entitled to judgment as a matter of law as to each of Plaintiffs' claims asserted against them.


Plaintiffs owned a home which was constructed in 2009 by Defendant Adams Homes, LLC. Building Inspection Doc. [124-1]. Adams Homes hired Defendant Keller Smith Supply, Inc., to install windows throughout the home. Dep. of Kenneth Rivera 157:3-9 [133-6]. Plaintiff Kenneth Rivera alleges that on January 3, 2010, he intended to clean the outside of the window and sash located above a gas burning fireplace. Id. at 158:1-25 [132-6]. The location of the window required Mr. Rivera to use a ladder to climb atop a ledge above the fireplace so that he could reach the window to remove the sash. Id. at 88:2-6, 107:6-22 [122-2]. The window was at least six feet above the ledge upon which Mr. Rivera was standing. See id. at 106:8-19. Mr. Rivera alleges that as he attempted to remove the sash from the window frame, he opened the sash, lifted it above his head, and attempted to pull the window out. Id. at 108:7-109:2 [122-2]. As he was doing so, Mr. Rivera claims that the sash simply fell on his head, causing him to fall from the ledge down to the floor approximately ten feet below. Id. at 109:3-8, 113:19-114:1 [122-2]. Mr. Rivera alleges he sustained injuries as a result of the fall. Compl. 9-10 [1-2].

Mr. Rivera contacted Adams Homes to report the incident and request a replacement sash. Dep. of Kenneth Rivera 155:3-22 [133-6]. On January 12, 2010, Ricky Manning, an employee of Keller Smith, came to Plaintiffs' home to install a replacement sash. Dep. of Ricky Manning 75:16-20 [122-7]. Mr. Manning had previously installed the original window and sash which Mr. Rivera claims caused his fall. Id. at 72:24-73:17 [122-7]. Mr. Rivera was present and observed Mr. Manning as he replaced the sash. Dep. of Kenneth Rivera 155:12-19 [133-6]. According to Mr. Rivera, Mr. Manning appeared to have trouble getting the replacement sash in place, had to use a hammer, and needed to borrow a screwdriver. Id. at 155:20-156:5 [133-6]. Mr. Manning was able to get the replacement sash installed. As he departed Plaintiffs' home, Mr. Manning left with the sash which had fallen. Id. at 154:19-23, 158:1-3 [133-6].[1]

On November 13, 2012, Plaintiffs filed this lawsuit against Defendants seeking damages for the injuries Mr. Rivera claims he suffered as a result of the incident. Compl. 1 [1-2]. Plaintiffs assert that the original window and sash were negligently installed, which caused the sash to fall from the window and onto Mr. Rivera's head. Id. at 2-3. The Complaint advances claims for negligent installation, negligence per se, negligent inspection, negligent failure to warn, strict liability, breach of express and implied warranties, and res ipsa loquitor. Id. at 3-9.

Keller Smith argues that Plaintiffs' res ipsa loquitor claim fails because the window was under Plaintiffs' exclusive control prior to the incident. Mem. Br. in Supp. of Mot. for Summ. J. 3 [123]. Keller Smith contends that Plaintiffs have not identified any statute or ordinance which Keller Smith has violated to support Plaintiffs' negligence per se claim, and that Plaintiffs have not established any evidence supporting the negligent installation claim. Id. at 4-6. Keller Smith posits that it cannot be held strictly liable because it took no part in the design, manufacture, or packaging of the sash at issue, and that Plaintiffs have not offered any evidence to support their breach of express and implied warranty claims. Id.

In addition to arguing that it is entitled to judgment as a matter of law as to the negligence-based claims for the same reasons advanced by Keller Smith, Adams Homes further maintains that it is entitled to summary judgment as to the strict liability claim because the windows are not considered a "product" under Mississippi law. Mem. Br. in Supp. of Mot. for Summ. J. 2-6 [125]. Adams Homes contends that Plaintiffs' breach of express warranty claim fails because Plaintiffs have not provided evidence of any express warranty or of a defect in either the window or workmanship related to the window. Reply in Supp. Mot. for Summ. J. 7-9 [138]. Adams Homes also reasons that the implied warranties upon which Plaintiffs rely are not applicable to the sale of a home. Id. at 9-10.

Plaintiffs oppose Defendants' Motions contending that questions of fact exist as to the cause of Mr. Rivera's fall. Mem. in Opp'n to Mot. for Summ. J. 11-13 [133], 10-13 [134]. Plaintiffs argue there is sufficient circumstantial evidence to support their negligence-based claims. Id. at 13-19 [133], 13-19 [134]. Plaintiffs insist that Defendants have breached the implied warranties of workmanship, fitness for a particular purpose, and merchantability. Id. at 21-22 [133], 22 [134]. According to Plaintiffs, Adams Homes is not a licensed homebuilder in the State of Mississippi and thus was negligent per se. In addition, Adams Homes breached an express warranty that it provided in a halt-change order. Id. at 20-22 [133]. Plaintiffs further maintain that Keller Smith is strictly liable because it sold a defective window and sash. Id. at 20-23 [134].


A. Legal Standard

Summary judgment is appropriate "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 rebut a properly supported motion for summary judgment, the opposing party must show, with "significant probative evidence, " that there exists a genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). "If the evidence is merely colorable, or is not significantly probative, ' summary judgment is appropriate." Cutting Underwater Technologies USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In considering a motion for summary judgment, the Court "may not make credibility determinations or weigh the evidence" and "must resolve all ambiguities and draw all permissible inferences in favor of the non-moving party." Total E&P USA Inc. v. Kerr-McGee Oil and Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted).

"There is no material fact issue unless the evidence is such that a reasonable jury could return a verdict for the nonmoving party." RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010). "A fact is material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law[, and an] issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Hamilton, 232 F.3d at 477 (citing Anderson, 477 U.S. at 248). "[M]ere conclusory allegations are not competent summary judgment evidence, and such allegations are insufficient, therefore, to defeat a motion for summary judgment." Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). "The court has no duty to search the record for material fact issues." RSR Corp., 612 F.3d at 858. "Rather, the party opposing summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim." Id.

The Court's jurisdiction in this case is premised upon diversity of citizenship pursuant to 28 U.S.C. ยง 1332. In a diversity action, a federal court applies state substantive law. Krieser v. Hobbs, 166 F.3d 736, 739 (5th Cir. 1999). The parties agree that Mississippi substantive law governs here.

B. Analysis

1. Plaintiffs' Res Ipsa Loquitur Claim Against Defendants

Under Mississippi law, three elements must be satisfied before the doctrine of ...

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