Opinion
No. 3:19-cv-00028-RGE-CFB
2020-04-02
A.L. EX REL. Margaret LIMKEMANN and Travis Limkemann; Margaret Limkemann; and Travis Limkemann, Plaintiffs, v. JAKE'S FIREWORKS, INC., Defendant.
Brian P. Galligan, Reid Law Firm, Des Moines, IA, for Plaintiffs. Michael Darrell Currie, Grefe & Sidney PLC, Des Moines, IA, for Defendant.
Brian P. Galligan, Reid Law Firm, Des Moines, IA, for Plaintiffs.
Michael Darrell Currie, Grefe & Sidney PLC, Des Moines, IA, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Rebecca Goodgame Ebinger, United States District Judge
I. INTRODUCTION
In July 2017, party revelers shot off fireworks at a gathering in eastern Iowa. One of the fireworks malfunctioned and projected sideways into the crowd, hitting Plaintiff Margaret Limkemann and her infant daughter, Plaintiff A.L. Margaret Limkemann and her husband, Plaintiff Travis Limkemann, sue Defendant Jake's Fireworks, Inc., individually and on the behalf of A.L., for products liability, breach of implied warranty, and negligence. Jake's Fireworks moves for summary judgment. Jake's Fireworks, as a nonmanufacturer, is immune from Plaintiffs' strict liability and breach of implied warranty claims under Iowa law. Plaintiffs do not resist Jake's Fireworks's motion summary judgment as to their remaining claims. Accordingly, the Court grants Jake's Fireworks's motion for summary judgment.
II. BACKGROUND
A. Relevant Facts
The following facts are either uncontested or, if contested, viewed in the light most favorable to Plaintiffs. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Munz v. Michael , 28 F.3d 795, 796 (8th Cir. 1994).
In July 2017, Margaret Limkemann, Travis Limkemann, and their daughter, A.L., attended a party in eastern Iowa at the home of Richard Fowler. Def.'s Statement Material Facts ¶ 4, ECF No. 33-1; Pls.' Resp. Def.'s Statement Undisputed Facts & Statement Add'l Material Facts 1, ECF No. 38-1. A party guest ignited a Boomer brand firework called the "War Hog Motorcycle." ECF No. 33-1 ¶ 5; ECF No. 38-1 at 1. The Boomer War Hog Motorcycle malfunctioned and one of its explosive shells projected laterally. ECF No. 33-1 ¶ 6; ECF No. 38-1 at 1. The projectile struck Margaret Limkemann and A.L., injuring them both. ECF No. 33-1 ¶¶ 7, 8; ECF No. 38-1 at 1. Experts for both Plaintiffs and Jake's Fireworks agree the Boomer War Hog Motorcycle at issue contained a manufacturing defect that caused the sideways deployment of the projectile. ECF No. 38-1 at 4; Def.'s Resp. Pls.' Statement Add'l Material Facts ¶ 12, ECF No. 41.
Before the party, Fowler purchased fireworks in northern Missouri. ECF No. 33-1 ¶ 12; ECF No. 38-1 at 2. Fowler does not know the name of the store where he purchased the fireworks. ECF No. 33-1 ¶ 13; ECF No. 38-1 at 2. None of Fowler's fireworks were ignited during the party. ECF No. 33-1 ¶ 14; ECF No. 38-1 at 2. Some of Fowler's guests (other than the Limkemanns) provided the fireworks that were shot off that evening. ECF No. 33-1 ¶ 16; ECF No. 38-1 at 2. Fowler does not know where his guests purchased their fireworks. ECF No. 33-1 ¶ 17; ECF No. 38-1 at 2.
Jake's Fireworks is a wholesaler, distributor, and retailer of consumer fireworks. ECF No. 33-1 ¶ 30; ECF No. 38-1 at 2. Jake's Fireworks imports the Boomer War Hog Motorcycle from a Chinese company, Changsha Qian Zi Fireworks Manufacture, Ltd. ECF No. 33-1 ¶ 26; ECF No. 38-1 at 2. Jake's Fireworks holds the trademark for Boomer brand fireworks. ECF No. 38-1 at 3; ECF No. 41 ¶ 1. The parties contest whether other firms also import the Boomer War Hog Motorcycle. See ECF No. 31-1 ¶ 31; ECF No. 38-1 at 5. Jake's Fireworks asserts the defaulted Third-Party Defendant, North Central Industries, also imports and retails the Boomer War Hog Motorcycle. ECF No. 33-1 ¶ 46. Jake's Fireworks points to a fireworks retail website advertising the Boomer War Hog Motorcycle as sold by North Central Industries. Def.'s App. Supp. Mot. Summ. J. at App. 69–72, ECF No. 33-2 (print-out of third-party website advertising the Boomer War Hog Motorcycle with the Boomer logo as sold by North Central Industries). Michael Baker, Jake's Fireworks's general counsel and corporate designee, stated he was unaware of any other company besides Jake's Fireworks that imports the Boomer War Hog Motorcycle with the Boomer logo. Baker Dep. 31:25–32:3, Pls.' App. Supp. Resist. Def.'s Mot. Summ. J. 8, ECF No. 38-2; ECF No. 38-1 at 3; ECF No. 41 ¶ 7. When asked if he was aware of whether North Central Industries used the Boomer trademark, Baker replied: "No, but it's not unlikely." Baker Dep. 30:18–21, ECF No. 38-2 at 8. Baker also stated he was unaware of Jake's Fireworks ever suing to enforce the Boomer trademark. Id. at 30:14–17.
Additional facts are discussed below as necessary.
B. Procedural Background
Plaintiffs bring four claims against Jake's Fireworks: products liability manufacturing defect (Count I); products liability design defect (Count II); breach of implied warranty of merchantability (Count III); and negligence (Count IV). Pet., ECF No. 1-2. Jake's Fireworks moves for summary judgment on all counts. ECF No. 33; Def.'s Br. Supp. Mot. Summ. J., ECF No. 36. Plaintiffs resist in part. ECF No. 38. This matter came before the Court for hearing on February 25, 2020. Text Order Setting Hr'g, ECF No. 39. Attorney Brian P. Galligan appeared on behalf of Plaintiffs. Mots. Hr'g Mins., ECF No. 45. Attorney Michael Darrell Currie appeared on behalf of Jake's Fireworks. Id.
On the morning of the hearing, Plaintiffs moved to amend their complaint. Pls.' Mot. Amend, ECF No. 44. The Court allowed argument on Plaintiffs' motion to amend at the hearing and ordered an expedited schedule for Jake's Fireworks to respond to Plaintiffs' motion. ECF No. 45; Text Order Setting Briefing Schedule, ECF No. 46. The Court subsequently denied Plaintiffs' motion to amend, finding Plaintiffs failed to show good cause to amend their complaint outside of the Court's briefing schedule and the amendment, in part, would be futile. Order Den. Pls.' Mot. Amend, ECF No. 52.
The Court now addresses Jake's Fireworks's motion for summary judgment. For the reasons set forth below, the Court grants Jake's Fireworks's motion.
III. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, the Court must grant a party's motion for summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists where the issue "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505. Where there is a genuine dispute of facts, those "facts must be viewed in the light most favorable to the nonmoving party." Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (quoting Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ).
To defeat a motion for summary judgment, the nonmoving party "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 248, 106 S.Ct. 2505 (omission in original) (quoting a prior version of Fed. R. Civ. P. 56(e) ). In analyzing whether a party is entitled to summary judgment, a court "may consider only the portion of the submitted materials that is admissible or useable at trial." Moore v. Indehar , 514 F.3d 756, 758 (8th Cir. 2008) (quoting Walker v. Wayne Cty. , 850 F.2d 433, 434 (8th Cir. 1988) ). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial" and the moving party is entitled to judgment as a matter of law. Torgerson v. City of Rochester , 643 F.3d 1031, 1042–43 (8th Cir. 2011) (en banc) (quoting Ricci , 557 U.S. at 586, 129 S.Ct. 2658 ).
IV. DISCUSSION
A. Unresisted Claims
Plaintiffs do not resist summary judgment on their products liability design defect claim (Count II) and the failure-to-warn aspect of their negligence claim (Count IV). ECF No. 38 at 6 ("Plaintiffs do not resist Defendant's motion as it relates to failure to warn claims."); ECF No. 38-1 at 2 ("Plaintiffs state that they are not pursuing a design defect claim in this matter."). Consequently, the Court dismisses Count II and the failure-to-warn aspect of Count IV.
B. Manufacturing Defect (Count I) and Breach of Implied Warranty of Merchantability (Count III)
In Count I, Plaintiffs allege a manufacturing defect in the Boomer War Hog Motorcycle caused an aerial shell to deploy laterally through its cardboard holding tube and injure Margaret Limkemann and A.L. ECF No. 1-2 ¶¶ 29–31. Plaintiffs allege this manufacturing defect was a departure from the Boomer War Hog Motorcycle's intended design. Id. ¶ 29. In Count III, Plaintiffs allege Jake's Fireworks breached its implied warranty of merchantability by selling the Boomer War Hog Motorcycle in a condition not fit for its ordinary purposes. Id. ¶¶ 41–42.
Jake's Fireworks moves for summary judgment on Counts I and III, arguing Plaintiffs have failed to generate a dispute of material fact showing Jake's Fireworks sold or distributed the Boomer War Hog Motorcycle. ECF No. 36 at 7–11. Moreover, Jake's Fireworks argues that as a nonmanufacturer it is immune from Plaintiffs' claims under Iowa Code § 613.18(1)(a). Id. at 11–13. For the following reasons, the Court finds there is a genuine dispute of material fact as to whether Jake's Fireworks sold or distributed the Boomer War Hog Motorcycle. Nonetheless, the Court grants summary judgment in favor of Jake's Fireworks on Counts I and III. The Court finds, as a nonmanufacturer, Jake's Fireworks is immune from liability for Plaintiffs' manufacturing defect and breach of implied warranty of merchantability claims under Iowa Code § 613.18(1)(a).
1. Product identification
There is a genuine dispute of material fact as to whether Jake's Fireworks sold or distributed the Boomer War Hog Motorcycle that caused Plaintiffs' injuries. To prevail in a products liability suit, a plaintiff "must prove injury caused by a product sold or supplied by the defendant." Huck v. Wyeth , 850 N.W.2d 353, 369 (Iowa 2014). "[I]t is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold or was in some way responsible for the product." Mulcahy v. Eli Lilly & Co. , 386 N.W.2d 67, 72–73 (Iowa 1986) (quoting 51 A.L.R.3d 1344, 1349 (1973) ). The parties do not dispute the injury-causing firework was a Boomer War Hog Motorcycle. ECF No. 33-1 ¶¶ 5–8; ECF No. 38-1 at 1. Jake's Fireworks, however, contends Plaintiffs have produced no evidence showing Jake's Fireworks sold or supplied the Boomer War Hog Motorcycle that caused Plaintiffs' injuries. ECF No. 36 at 7. Jake's Fireworks cites the lack of evidence that Fowler or his party guests purchased the Boomer War Hog Motorcycle from Jake's Fireworks. Id. at 8–9. Further, Jake's Fireworks contends, based on advertisements on a third-party website, that North Central Industries also imports and retails the Boomer War Hog Motorcycle. Id. at 9.
In their resistance, Plaintiffs put forth specific evidence to demonstrate a dispute of material fact as to whether the Boomer War Hog Motorcycle was sold or distributed by Jake's Fireworks. ECF No. 38 at 2–3. First, Plaintiffs provide evidence Jake's Fireworks held the exclusive trademark to the Boomer brand of fireworks. See Pls.' Ex. 3 Supp. Resist. Def.'s Mot. Summ. J., ECF No. 38-4 (filings from the United States Patent and Trademark Office). Second, Jake's Fireworks's general counsel, Michael Baker, testified other importers would likely not import products with the Boomer logo. Baker Dep. 31:25–32:3, ECF No. 38-2 at 8. Baker also stated he was not aware of Jake's Fireworks ever enforcing its Boomer trademark against infringement. Id. at 30:14–17.
Plaintiffs also point to an email exchange between North Central Industries and Plaintiffs' counsel in which North Central Industries denied carrying the Boomer brand. Pls.' Ex. 2 Supp. Resist. Def.'s Mot. Summ. J., ECF No. 38-3. Plaintiffs rely on this out-of-court statement for the truth of the matter asserted—that is, that North Central Industries did not carry the product at issue. See Fed. R. Evid. 801. Plaintiffs do not argue any of the exceptions to the rule against hearsay apply. Although this evidence could be elicited at trial through a representative from North Central Industries, this email exchange is inadmissible at trial and the Court does not consider it in deciding this motion. See Fed. R. Evid. 801 ; Moore , 514 F.3d at 758.
Jake's Fireworks admits it owns the trademark for the Boomer War Hog Motorcycle. ECF No. 41 ¶ 1. However, Jake's Fireworks asserts its ownership of the trademark is not "conclusive evidence" it supplied the injury-causing Boomer War Hog Motorcycle. ECF No. 43 at 4. Jake's Fireworks argues, in light of the "untrustworthiness of the Chinese manufacturers," another importer could have imported the firework. Id. Jake's Fireworks is correct that Plaintiffs do not proffer conclusive evidence showing it supplied the Boomer War Hog Motorcycle at issue—but that is not the summary judgment standard. Plaintiffs must "set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Plaintiffs have done so.
The issue of whether Jake's Fireworks sold or distributed the injury-causing Boomer War Hog Motorcycle could reasonably be decided in favor of either party. See id. at 250, 106 S.Ct. 2505. Jake's Fireworks's ownership of the Boomer trademark and Baker's statements could lead a rational fact finder to find Jake's Fireworks supplied the injury-causing firework. See Huck , 850 N.W.2d at 369. But, Jake's Fireworks's opposing arguments and the evidence related to North Central Industries could also lead a rational fact finder to find there is insufficient evidence to link the injury-causing Boomer War Hog Motorcycle to Jake's Fireworks. Thus, there is a genuine dispute of material fact on this threshold issue.
2. Iowa Code § 613.18(1)(a)
Despite the genuine dispute of material fact regarding Jake's Fireworks's connection to the injury-causing firework, Plaintiffs' manufacturing defect and breach of implied warranty claims fail as a matter of law. Jake's Fireworks is immune from such claims under Iowa Code § 613.18(1)(a), which provides:
A person who is not the assembler, designer, or manufacturer, and who wholesales, retails, distributes, or otherwise sells a product is: ... Immune from any suit based upon strict liability in tort or breach of implied warranty of merchantability which arises solely from an alleged defect in the original design or manufacture of the product.
Section 613.18(1)(a) imposes a limitation on strict liability and implied warranty claims against nonmanufacturers. Bingham v. Marshall & Huschart Mach. Co., Inc. , 485 N.W.2d 78, 79 (Iowa 1992). Section 613.18(1)(a) "provides for immunity from suit when the potential claim arises solely from defects in the original design or manufacture of the product." Id. at 80. " Section 613.18 represents a judgment by the Iowa legislature that strict liability [and breach of implied warranty of merchantability] for design or manufacturing defects should extend only to those who have some responsibility for the design or manufacture of a product." Housley v. Orteck Int'l, Inc. , 488 F. Supp. 2d 819, 831–32 (S.D. Iowa 2007) (alteration in original) (quoting Stoffel v. Thermogas Co. , 998 F. Supp. 1021, 1033 (N.D. Iowa 1997) ).
Jake's Fireworks argues, as a nonmanufacturer, it is immune from suit for Plaintiffs' manufacturing defect and breach of implied warranty claims. ECF No. 36 at 11–12. Plaintiffs respond Jake's Fireworks, as the trademark holder of the Boomer War Hog Motorcycle, is its apparent manufacturer and therefore is not protected from suit under § 613.18(1)(a). ECF No. 38 at 3–6. Jake's Fireworks replies Plaintiffs fail to plead this theory of liability in their complaint and should not be allowed to amend their complaint through their resistance brief. ECF No. 43 at 2–3. Further, Jake's Fireworks argues the apparent manufacturer theory is not viable under Iowa law. Id. at 5–6.
Federal Rule of Civil Procedure 8(a) requires complaints to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Although the pleading requirements under Rule 8(a) are relatively permissive, the essential function of notice pleading is to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ " WireCo Worldgroup, Inc. v. Liberty Mut. Fire Ins. Co. , 897 F.3d 987, 992–93 (8th Cir. 2018) (omission in original) (emphasis omitted) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). However, "[t]he federal rules, and the decisions construing them, evince a belief that when a party has a valid claim, he should recover on it regardless of his counsel's failure to perceive the true basis of the claim at the pleading stage, provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining a defense upon the merits." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1219 (3d ed. 2002 & Supp. 2019) ; accord Oglala Sioux Tribe v. Andrus , 603 F.2d 707, 714 (8th Cir. 1979).
As part of their manufacturing defect claim, Plaintiffs allege, "Jake's Fireworks designed, manufactured , assembled, sold, and/or distributed the Boomer Warhog Cake that is the subject of this lawsuit." ECF No. 1-2 ¶ 27 (emphasis added). Plaintiffs did not plead their claim under an apparent manufacturer theory. In their breach of implied warranty claim, Plaintiffs describe Jake's Fireworks as a "merchant of fireworks products." Id. ¶ 40. The Court finds Plaintiffs do not provide Jake's Fireworks with adequate notice of the grounds for their manufacturing defect and breach of implied warranty claims. Plaintiffs cannot expand their claims in their resistance based on facts and a theory of liability they fail to plead in their complaint. See Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs. , 558 F.3d 731, 735 (8th Cir. 2009) ("[Plaintiff] attempts to expand his claims in his brief, arguing that he was terminated for speaking in the summer session class in May 2003. Having not raised this fact in his Complaint, he cannot rely on it now."). Jake's Fireworks is not required to "intuit additional theories of liability that were not apparent from [Plaintiffs'] complaint." WireCo Worldgroup, Inc. , 897 F.3d at 993. Plaintiffs are precluded from alleging additional grounds for their manufacturing defect claim at this stage.
Even assuming Plaintiffs had provided Jake's Fireworks adequate notice of the grounds for their claims, Plaintiffs' apparent manufacturer theory fails as a matter of law. As detailed in the Court's order denying Plaintiffs' motion to amend, the apparent manufacturer doctrine is not cognizable under Iowa law. ECF No. 52 at 8–11. As a nonmanufacturer, Jake's Fireworks is immune from liability for Plaintiffs' manufacturing defect and breach of implied warranty claims. The Court grants summary judgment in favor of Jake's Fireworks on Counts I and III.
C. Negligence (Count IV)
In the remaining portion of Count IV, Plaintiffs allege Jake's Fireworks engaged in negligent testing by failing "to perform proper testing of the cardboard holding tubes and Boomer Warhog Cake container" and failing "to conduct proper hazard and failure analysis." ECF No. 1-2 ¶ 45(b)–(c). Plaintiffs also allege Jake's Fireworks engaged in "[o]ther unspecified acts of negligence." Id. at ¶ 45(d). Jake's Fireworks contends Plaintiffs fail to generate a dispute of material fact as to these claims and argues the claims should be dismissed as a matter of law. ECF No. 36 at 21–23. Plaintiffs respond indirectly to Jake's Fireworks's arguments, asserting Jake's Fireworks's "negligence in this case arises from its permitting negligent and careless conduct of the Chinese manufacturer, Changsha Qian, in its manufacture and assembly of the [Boomer War Hog Motorcycle] firework product." ECF No. 38 at 7. Plaintiffs cite the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, alleging Jake's Fireworks is liable for allowing the negligent conduct of a third party: their Chinese manufacturer. Id. Plaintiffs contend Jake's Fireworks was aware of its Chinese manufacturer's "less than primitive manufacturing process," yet failed to determine if the manufacturer had proper quality control measures in place. Id. at 8. Plaintiffs also put forth a negligence per se theory of liability, arguing there is a dispute of material fact that Jake's Fireworks violated federal law by selling the defective Boomer War Hog Motorcycle. ECF No. 38 at 10–12. Jake's Fireworks responds the Court should not consider Plaintiffs arguments because Plaintiffs seek to impermissibly amend their complaint by putting forth new theories of liability. ECF No. 43 at 2–3, 6.
As discussed above, the Court has dismissed the failure-to-warn claim in Count IV because Plaintiffs do not resist Jake's Firework's motion for summary judgment on this aspect of their negligence claim.
Plaintiffs did not provide Jake's Fireworks with notice of the theories of negligence liability they now posit in their resistance. See Fed. R. Civ. P. 8(a). Plaintiffs' claim that Jake's Fireworks engaged in "unspecified acts of negligence" is insufficient to allow Jake's Fireworks to intuit the third-party liability or negligence per se arguments in Plaintiffs' resistance. ECF No. 1-2 ¶ 45(d); see WireCo Worldgroup, Inc. , 897 F.3d at 993. The Court does not consider the new theories of liability argued in Plaintiffs' resistance. Further, as explained in the Court's order denying Plaintiffs' motion to amend, Plaintiffs' theory of third-party liability is not a cognizable theory for products liability cases in Iowa. See ECF No. 52 at 11–13.
Thus, the Court considers the remaining aspects of Plaintiffs' negligence claim as pleaded in Count IV. Plaintiffs do not address Jake's Fireworks's arguments about their negligent testing claim. While Plaintiffs provided specific evidence regarding product identification, Plaintiffs set forth no similar specific evidence demonstrating a genuine dispute of fact on their negligent testing claim. See Anderson , 477 U.S. at 256, 106 S.Ct. 2505. Further, at the hearing on Jake's Fireworks's motion for summary judgment, counsel for Jake's Fireworks stated Plaintiffs do not resist the failure-to-warn and the failure-to-test aspects of their negligence claim. Plaintiffs' counsel did not object. Thus, the Court finds Plaintiffs do not resist summary judgment on their negligence claim as it is pleaded in their complaint. Accordingly, Jake's Fireworks is entitled to summary judgment on Count IV. See Satcher , 558 F.3d at 735 (affirming summary judgment against plaintiff on an issue plaintiff did not oppose and noting "[i]t was not the District Court's responsibility to sift through the record to see if, perhaps, there was an issue of fact").
D. Loss of Consortium
Plaintiffs do not plead a loss of consortium claim as a separate count in their complaint. In the factual allegations of their complaint, Plaintiffs allege Travis Limkemann will suffer loss of companionship and consortium of his spouse and his daughter because of their injuries. ECF No. 1-2 ¶¶ 18, 22. Plaintiffs also allege A.L. and Margaret Limkemann will lose the companionship and consortium of each other from their respective injuries. Id. ¶¶ 19, 22. When a defendant is not liable to a plaintiff as a matter of law on the underlying claim, a related loss of consortium claim cannot survive. See Johnson v. Moody , 903 F.3d 766, 774 (8th Cir. 2018). To the extent Plaintiffs allege a loss of consortium claim, the Court grants summary judgment on that claim in favor of Jake's Fireworks.
V. CONCLUSION
There is a genuine dispute of material fact as to whether Jake's Fireworks supplied the product that caused Plaintiffs' injuries. Nonetheless, Jake's Fireworks, as a nonmanufacturer, is immune from liability under Iowa Code § 618.13(1)(a) for Plaintiffs' manufacturing defect claim (Count I) and breach of implied warranty claim (Count III). Plaintiffs do not resist summary judgment on their design defect claim (Count II). As for their negligence claim (Count IV), Plaintiffs do not resist summary judgment on the claim as pleaded in their complaint. The Court does not consider the new theories of negligence liability asserted in Plaintiffs' resistance because Plaintiffs did not provide Jake's Fireworks adequate notice of these theories.
IT IS ORDERED that Defendant Jake's Fireworks, Inc.'s Motion for Summary Judgment, ECF No. 33, is GRANTED . The parties are responsible for their own costs.