Opinion
Case No. 6:09-cv-746-Orl-35GJK.
September 28, 2009
ORDER.
THIS CAUSE. comes before the Court for consideration of Defendant's Motion to Dismiss Plaintiff's Complaint (Docket No. 4) for failure to state a claim, originally filed in state court on April 23, 2009, and then filed upon removal in this Court on May 1, 2009. The memorandum of law in support of the motion was filed separately in this Court on May 11, 2009. (Docket No. 7.)
I. Background.
This is a products liability action based on Plaintiff Turquoise Brown's ("Brown") assertions that a pair of defective Skechers roller skates she purchased in February 2004 from a company store operated by Defendant Skechers, U.S.A, Inc. ("Skechers") caused her to fall and severely fracture her left ankle in May 2005. (Docket No. 2 ¶¶ 4-6, 8.) Based on those allegations, Plaintiff filed a complaint containing four theories of liability: negligence (Count I), strict liability (Count II), breach of the implied warranty of merchantability (Count III), and breach of the implied warranty of fitness for a particular purpose (Count IV). Strict liability, negligence and breach of implied warranty are all available theories of recovery in product liability cases.Nicolodi v. Harley-Davidson Motor Co., Inc., 370 So. 2d 68, 72 (Fla. App. 1979). Moreover, "a given set of facts can support [these] alternative theories of recovery in a products liability case, in tort for negligence or strict liability, and in contract for breach of implied warranty." Id. Defendant challenges all four Counts of the Complaint in its motion to dismiss.
II. Motion to Dismiss Standard.
III. Analysis.
See Murphy v. Federal Deposit Ins. Corp 208 F.3d 959962Kirby v. Siegelman 195 F.3d 12851289See Bell Atlantic Corp. v. Twombly127 S. Ct. 19551964Id Id See Jackam v. Hospital Corp. of Am. Mideast, Ltd800 F.2d 1577 1579-80 Pulte Home Corp., Inc. v. Ply Gem Industries, Inc804 F. Supp. 14711486
In the Complaint, Plaintiff alleges both a manufacturing and a design defect in the skates and explains that "[t]he defective condition was the failure of the rollers on the skate to remain in place such that the rollers disengaged [and] rotated." Compl. ¶¶ 11, 15, 17. Defendant argues that this is a conclusory allegation unsupported by a factual basis, that it does not adequately address "what defective condition existed as to the subject roller skates," and that it does not constitute a theory "as to why the rollers disengaged and rotated." Mot. ¶ 3.
The Court finds Cunningham v. General Motors, 561 So.2d 656 (Fla. 1st DCA 1990), cited by both parties, to be applicable in determining whether Plaintiff has alleged sufficient facts to comply with the pleading standards under Rule 8(a) as to the defective condition element of a product liability action. The court in Cunningham. found that the plaintiff had sufficiently alleged a manufacturing defect by alleging that the component parts of an automobile's clutch pedal, the clutch cable and clutch clip, were defectively manufactured in that "when the clutch pedal was depressed to disengage the transmission, the clutch cable and clutch clip broke so that when the operator of the vehicle depressed the clutch, it would not disengage the transmission" as it was designed to do, causing the plaintiff's injuries. 561 So.2d at 657 n. 1, 659-60. Here, Plaintiff alleged that she did not alter the roller skates in any way from the condition in which she purchased them, had not misused them at any time and had not otherwise used the product in "any manner other than as it was intended to be used from the manufacturer." Compl. ¶ 7. Yet, despite that, "the left skate's back wheels twisted and rotated out of place," causing her to fall and get injured. Id. ¶¶ 6, 11.
Here, as in Cunningham., the Plaintiff pointed to the specific part of the product that broke during normal operation. InCunningha., it was alleged that the clutch cable and clutch clip of the automobile's clutch pedal broke and caused the plaintiff harm during normal operation. 561 So.2d at 660. Here, the Plaintiff alleged that it was the left skate's back wheels that broke, causing the Plaintiff harm during normal operation. Compl. ¶¶ 6, 7. In addition, the Plaintiff here alleged how the left skate's back wheels broke; specifically, it allegedly twisted and rotated out of place. Id. ¶ 6. As in Cunningham., any more detailed explanation as to how the back left wheels broke must necessarily be left to discovery to be requested from the Defendant. 561 So.2d at 660 (finding that the defendant was in a better position than the plaintiff to produce the technical evidence needed to determine the specifics of the clutch defect). At this stage in the proceedings, the Plaintiff must only set forth a "short and plain statement of the claim showing that [she] is entitled to relief" pursuant to Rule 8(a), and the Court finds Plaintiff to have done so with respect to her allegations concerning what constituted the defect in the roller skates.
Rice v. Walker., 359 So. 2d 891 (Fla. App. 3d 1978), cited by Defendant in support of its motion, and decided beforeCunningham., is inapposite to this matter. In that case, an individual operating a model gas-powered airplane with steel control wire was electrocuted when the airplane came into contact with an overhead electric power line. Rice, 359 So. 2d at 892. The personal representative of the deceased sued the retailers who sold the model airplane components to a friend of the airplane user, the deceased. Id. The plaintiff asserted that there was a manufacturing defect in the airplane components, not because the components inherently malfunctioned or broke in any way, as inCunningham. and in the instant matter, but because they did not "prevent or guard against electrocution of the user." Id. Without more, the court found those allegations insufficient to constitute a manufacturing defect in the product. In fact, the allegations in Cunningham. were specifically found to have met the standard suggested in Rice., in that they indicated the facts that constituted the defect, facts showing any components that were defective or dangerous to the user or that reasonably could or should have been made safe. Cunningham, 561 So. 2d at 660 (citingRice., 359 So. 2d at 892).
Similarly, another case cited by Defendant, Bailey v. Janssen Pharmaceutica, Inc., 2006 WL 3665417, *3 (S.D. Fla. Nov. 14, 2006), is equally inapposite. The court there granted the defendant's motion to dismiss for failure to state a products liability claim on the plaintiff's mere assertions that the product at issue was in a "defective and unreasonably dangerous condition." As noted above, Plaintiff has stated more than just a conclusory allegation that the skates were defective.
Defendant also challenges Plaintiff's claim for breach of the implied warranty of fitness for a particular purpose under Count IV of the Complaint because Plaintiff has failed to allege any particular purpose for the skates. In response, Plaintiff concedes to Defendant's challenge and withdraws her claim for breach of the implied warranty of fitness for a particular purpose. See. Docket No. 10 at 6.
For the foregoing reasons,
1. Defendant's Motion to Dismiss Plaintiff's Complaint (Docket No. 4) is GRANTED on stipulation of the parties as to Count IV (breach of the implied warranty of fitness for a particular purpose), but DENIED as to Count I (negligence), Count II (strict liability) and Count III (breach of the implied warranty of merchantability); and
2. Count IV of the Complaint is hereby STRICKEN.
DONE and ORDERED in Orlando.