United States District Court, W.D. Missouri, Western Division
AND OPINION (1) GRANTING CIMMARON ELECTRIC, INC.'S MOTION
FOR SUMMARY JUDGMENT, (2) GRANTING J.E. DUNN CONSTRUCTION
COMPANY'S MOTION FOR SUMMARY JUDGMENT, (3) GRANTING IN
PART AND DENYING IN PART SKYLINE DESIGN, INC.'S MOTION
FOR SUMMARY JUDGMENT, (4) DISMISSING ROBERT COBBINS'S
LOSS OF CONSORTIUM CLAIM AGAINST SKYLINE DESIGN, INC., AND
(5) GRANTING THE BRATTON CORPORATION'S MOTION FOR SUMMARY
D. SMITH, SENIOR JUDGE.
are separate motions for summary judgment filed by Defendants
Cimmaron Electric, Inc. (Doc. #94), J.E. Dunn Construction
Company (Doc. #96), Skyline Design, Inc. (Doc. #98), and The
Bratton Corporation (Doc. #100).
matter stems from an incident that occurred in April 2013,
where a tempered glass door shattered and injured Jessie
Cobbins. Doc. #29. Jessie Cobbins and her husband, Robert
Cobbins, filed a lawsuit against J.E. Dunn Construction
Company (“J.E. Dunn”), Insulite Glass Company
(“Insulite”), The Bratton Corporation
(“Bratton”), and Cimmaron Electric Inc.
(“Cimmaron Electric”) in the Circuit Court of
Jackson County, Missouri. Doc. #1-2. The matter was removed
to this Court. Doc. #1. Plaintiffs later sought and obtained
leave to amend their Petition, adding Skyline Design, Inc.
(“Skyline”) as a defendant. Docs. #27-29. Jessie
Cobbins alleges claims of beach of implied warranty of
merchantability (Count I), breach of implied warranty of
fitness for a particular purpose (Count II), product
liability (Count III), and negligence (Count IV). Robert
Cobbins brings a claim of loss of consortium (Count V).
Electric, J.E. Dunn, Skyline, and Bratton filed motions for
summary judgment. Docs. #94, 96, 98, 100. Plaintiffs failed
to timely respond to the motions. On September 26, 2016, the
Court issued an order directing Plaintiffs to show cause as
to why Defendants' motions should not be granted. Doc.
#102. The Court also informed Plaintiffs that if they failed
to respond to Defendants' statements of fact, those facts
would be deemed admitted for purposes of summary judgment.
Id. Plaintiffs' response was due by October 14,
2016. Id. To date, Plaintiffs have not submitted
anything in response to the Court's Order. Accordingly,
the motions for summary judgment are ripe for consideration.
moving party is entitled to summary judgment on a claim only
if there is a showing that “there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Williams v. City
of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986).
“[W]hile the materiality determination rests on the
substantive law, it is the substantive law's
identification of which facts are critical and which facts
are irrelevant that governs.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Wierman v.
Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir.
2011) (quotation omitted). In applying this standard, the
Court must view the evidence in the light most favorable to
the non-moving party, giving that party the benefit of all
inferences that may be reasonably drawn from the evidence.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 588-89 (1986); Tyler v. Harper, 744
F.2d 653, 655 (8th Cir. 1984). However, a party opposing a
motion for summary judgment “may not rest upon the mere
allegations or denials of the…pleadings, but…by
affidavits or as otherwise provided in [Rule 56], must set
forth specific facts showing that there is a genuine issue
for trial.” Fed.R.Civ.P. 56(e).
Plaintiffs failed to controvert the facts set forth by
Defendants in support of Defendants' summary judgment
motions, the facts supported by the record are deemed
admitted for the purpose of summary judgment. L.R. 56.1. When
a party fails to address another party's assertion of
fact in a motion for summary judgment, the Court may
“grant summary judgment if the motion and supporting
materials - including the facts undisputed - show that the
movant is entitled to it.” Fed.R.Civ.P. 56(e).
2005, the General Services Administration (“GSA”)
hired J.E. Dunn to serve as general contractor for renovating
the Richard Bolling Federal Building (“Bolling
Building”). Doc. #97, at 2-3; Doc. #97-1, at 1. J.E.
Dunn entered into a subcontract with Bratton under which
Bratton was required to obtain and install, among other
things, tempered glass doors. Doc. #97, at 3; Doc. #97-2, at
1-2. During the renovations, J.E. Dunn provided construction
services, but did not manufacture, fabricate, ship, or
install the tempered glass doors. Doc. #97, at 3, 7-8; Doc.
#97-2, at 1-2. The renovations were completed in May 2006,
and were approved as substantially completed and accepted by
the GSA. Doc. #97, at 3; Doc. #97-3. In April 2013, Jessie
Cobbins was injured while opening a tempered glass door on
the fourteenth floor of the Bolling Building. Doc. #97, at 3;
Doc. #97-4. According to her, the door “spontaneously
shattered, ” and glass fell on her right hand and left
foot, resulting in permanent injuries. Doc. #29, ¶¶
discovery, J.E. Dunn served interrogatories on Plaintiffs.
Docs. #77-78; Doc. #97, at 6; Doc. #97-9; Doc. #97-10. J.E.
Dunn asked Plaintiffs to provide the factual basis for their
claims that J.E. Dunn installed the door, fabricated the
door, manufactured the door, sold the door, was a merchant
with respect to the door, and was notified the door was not
fit for its intended purpose. Doc. #97, at 7; Doc. #97-9;
Doc. #97-10. J.E. Dunn's interrogatories also asked
Plaintiffs to identify any warning they believed J.E. Dunn
should have provided; any fabrication, manufacturing, or
installation defect they believe caused the door to be
defective; how they believe the door was defective; and the
steps they believe J.E. Dunn should have taken to further
stabilize, strengthen, or modify the door. Doc. #97, at 7;
Doc. #97-9; Doc. #97-10. Plaintiffs never answered these
interrogatories. Doc. #97, at 6.
Dunn also served requests for admissions on Plaintiffs. Docs.
#77-78; Doc. #97, at 6-10; Doc. #97-11; Doc. #97-12. But
Plaintiffs never answered those requests. Doc. #97, at 6.
Pursuant to the Federal Rules of Civil Procedure, “[a]
matter is admitted unless, within 30 days after being served,
the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to
the matter and signed by the party or its attorney.”
Fed.R.Civ.P. 36(a)(3). Because Plaintiffs failed to answer
these requests for admission, these matters are admitted.
failing to answer the requests for admission, Plaintiffs
admitted they had no factual basis for the allegations that
J.E. Dunn installed, fabricated, manufactured, or sold the
door. Doc. #97-11, at 1-2; Doc. #97-12, at 1-2. Plaintiffs
admitted they did not provide notice to J.E. Dunn of their
belief the door was not fit for its intended purpose. Doc.
#97-11, at 2; Doc. #97-12, at 2. Plaintiffs admitted they did
not know the specific warning J.E. Dunn was required to
provide. Doc. #97-11, at 3; Doc. #97-12, at 3. Plaintiffs
admitted they could not identify any fabrication,
manufacturing, or installation defect that caused the door to
be defective. Doc. #97-11, at 3; Doc. #97-12, at 3.
also admitted they could not identify the steps J.E. Dunn
should have taken to further stabilize, strengthen, or modify
the door. Doc. #97-11, at 3-4; Doc. #97-12, at 3-4.
Plaintiffs admitted they had no factual basis for their
allegations J.E. Dunn owed a duty to warn them or J.E. Dunn
breached its duty to warn. Doc. #97-11, at 4-5; Doc. #97-12,
at 4. Finally, Plaintiffs admitted they could not provide a
factual basis for their allegations that J.E. Dunn's
actions or inactions caused their injuries. Doc. #97-11, at
5; Doc. #97-12, at 5. J.E. Dunn moves for summary judgment,
arguing Plaintiffs cannot establish any submissible claim
against J.E. Dunn.
Breach of Implied Warranty of Merchantability
400.2-314 of the Missouri Revised Statutes creates an implied
warranty of merchantability, which includes a warranty that
goods sold “are fit for the ordinary purpose for which
such goods are used.” Mo. Rev. Stat. § 400.2-314;
see also Ragland Mills, Inc. v. Gen. Motors Corp.,
763 S.W.2d 357, 360 (Mo.Ct.App. 1989). To recover under the
provisions of section 400.2-314, a party must prove (1) a
merchant sold goods, (2) which were not
“merchantable” at the time of the sale, (3)
injury and damages to the buyer, (4) which were caused
proximately or in fact by the defective nature of the goods,
and (5) notice to the seller of the injury. Ragland
Mills, 763 S.W.2d at 360 (citation omitted); see
also Mo. Rev. Stat. § 400.2-314 (stating “a
warranty that the goods shall be merchantable is implied in a
contract for their sale if the seller is a merchant with
respect to goods of that kind.”). A merchant is defined
as “a person who deals in goods, ” and goods are
defined as “things which are movable at the time of
identification to the contract for sale.” Mo. Rev.
Stat. §§ 400.2-104(1), 400.2-105(1).
undisputed facts establish J.E. Dunn was not a merchant and
did not sell the door at issue. Without evidence J.E. Dunn
was a merchant, there can be no implied warranty of
merchantability. See Herbert v. Harl, 757 S.W.2d
585, 588 (Mo. banc 1988). Accordingly, summary judgment is
entered in J.E. Dunn's favor with regard to Jessie
Cobbins's breach of implied warranty of merchantability
Breach of Implied Warranty of Fitness for a Particular
implied warranty of fitness for a particular purpose is found
in Missouri statute:
Where the seller at the time of contracting has reason to
know any particular purpose for which the goods are required
and that the buyer is relying on the seller's skill or
judgment to select or furnish suitable goods there is unless
excluded or modified under section 400.2-316 ...