Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cobbins v. J.E. Dunn Construction Co.

United States District Court, W.D. Missouri, Western Division

October 28, 2016

JESSIE COBBINS and ROBERT COBBINS, Plaintiffs,
v.
J.E. DUNN CONSTRUCTION CO., et al. Defendants.

         ORDER 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 JUDGMENT

          ORTRIE D. SMITH, SENIOR JUDGE.

         Pending 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).

         I. BACKGROUND

         This 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).

         Cimmaron Electric, J.E. Dunn, Skyline, and Bratton filed motions for summary judgment. Docs. #94, 96, 98, 100.[1] 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.

         II. STANDARD

         A 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).

         Because 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).

         III. DISCUSSION

         A. J.E. Dunn

         In 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, ¶¶ 11-12.

         During 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.

         J.E. 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.

         By 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.

         Plaintiffs 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.

         (1) Breach of Implied Warranty of Merchantability

         Section 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).

         The 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 claim.[2]

         (2) Breach of Implied Warranty of Fitness for a Particular Purpose

         An 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.