J.D.O., a minor, by and through her mother and natural guardian, Amber C. Oldenburg, Plaintiff,
The Gymboree Corporation, Gymboree Retail Stores, Inc., Gymboree Operations, Inc., Defendants.
David M. Bolt and Christopher J. Hoffer, Bolt & Hoffer
Law Firm; Alan E. Fredregill, Heidman Law Firm LLP, for Plaintiff.
Miranda J. Welbourne and Scott D. Feringa, Sullivan Ward Asher & Patton P.C.; Gary J. Gordon, McCollum, Crowley, Moschet, Miller & Laak, for Defendants.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.
In this diversity case, Plaintiff seeks to recover for severe burn injuries sustained by J.D.O., a minor, when her dress, designed and sold by Defendants, caught fire from contact with a lit candle in her home. Plaintiff alleges that the dress was defective because of its specific ignition and flame spread characteristics, and because it lacked any warning about its high degree of flammability. Plaintiff sued Defendants on theories of strict liability, negligence, and breach of warranty. This matter is now before the Court on Defendants' motion for summary judgment [Doc. No. 23]. For the reasons set forth below, the Court grants in part and denies in part Defendants' motion.
On February 26, 2008 at approximately 4:00 p.m., then-three year old J.D.O. was at her apartment watching television with her younger sister. J.D.O.'s mother, Amber Oldenburg ("Ms. Oldenburg"), was working at the kitchen table with a votive candle burning. (Dep. of Amber Oldenburg at 8-9, Ex. A to Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. [Doc. No. 28-1].) Ms. Oldenburg left the kitchen to use the bathroom, where she was briefly before she heard screaming. (Id. at 40.) She ran into the hallway and saw J.D.O. running toward her; J.D.O.'s dress was in flames. (Id. at 40-41.) Ms. Oldenburg rolled J.D.O. on the floor to extinguish the fire. (Id. at 46.) She then took J.D.O. to the bathroom, put her in the bathtub, and let the shower run on J.D.O. (Id. at 46, 67.) Pieces of J.D.O.'s dress fell off in the bathtub. (Id. at 58, 67.)
Ms. Oldenburg called 911. (Oldenburg Dep. at 68.) When members of the police and fire department arrived, J.D.O. was standing naked in the hallway, silent. (Id. at 68-69.) They transported J.D.O. to Hennepin County Medical Center. (Id. at 72.) J.D.O. had second- and third-degree burns over 50% to 60% of her body-mostly to her chest, arms, and neck. Six months later, J.D.O. was discharged from the hospital and began one to two months of therapy at Shriners Hospital for Children in Cincinnati, Ohio. (Id. at 81.) J.D.O. continues to visit Shriners Hospital every few months for checkups. (Id. at 100.)
J.D.O.'s dress was designed and sold by Defendants. The brown animal print shell was 99% cotton, and the lining was 100% cotton. (Oldenburg Dep. at 91.) J.D.O.'s grandmother purchased it at a Gymboree in Maple Grove, Minnesota as a gift for J.D.O. (Id. at 88; Aff. of Cynthia Oxley ¶ 2, Ex. L to Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. [Doc. No. 28-5].) A tag sewn into the dress read, "Not Intended for Sleepwear." (Compl. ¶ 18 [Doc. No. 1].)
Defendants hired a Hong Kong company, Bureau Veritas, to conduct premanufacture fabric testing. These tests purportedly show that the shell fabric failed on "dimensional stability" and "tear strengths." (Bureau Veritas Results, Ex. O to Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. [Doc. No. 28-6].) The shell and lining met the governmental flammability standard for retail apparel under 16 C.F.R. § 1610 (Commercial Standard 191-53).
A. Standard of Review
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986); Enter. Bank v. Magna Bank , 92 F.3d 743, 747 (8th Cir. 1996). A dispute over a fact is "material" only if its resolution might affect the outcome of the lawsuit under the substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute over a fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id . All justifiable inferences are to be drawn in the nonmovant's favor and the evidence of the non-movant is to be believed. Id. at 255.
B. Strict Liability Claims
1. Design Defect
Because this is a diversity case, the Court applies the substantive law of Minnesota, the forum state. In re Levaquin Prods. Liab. Litig. , 700 F.3d 1161, 1165 (8th Cir. 2012). Minnesota courts analyze design defect claims under a "reasonable care" balancing test. Holm v. Sponco Mfg., Inc. , 324 N.W.2d 207, 213 (Minn. 1982). To prevail under the test, the plaintiff must show that: (1) the product was in a defective condition unreasonably dangerous for its intended use; (2) the defect existed when the product left defendants' control; and (3) the defect was the proximate cause of the plaintiff's injuries. Patton v. Newmar Corp. , 538 N.W.2d 116, 119 (Minn. 1995).
Plaintiff alleges that J.D.O.'s dress was defective because of its extreme ignition and flammability characteristics, as well as the lack of an appropriate warning. (Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. at 14-15 [Doc. No. 27].) Plaintiff attributes the ignition and flammability characteristics of the dress to the combination of its predominantly cotton fiber content, the open and flowing design, and the loose fit. (Id. at 14.)
Defendants argue that there is no design defect because the dress met the governmental flammability standard under 16 C.F.R. § 1610; no safer alternative design existed; and the risk of J.D.O.'s injuries is minimal. (Defs.' Mem. in Supp. of its Mot. for Summ. J. at 9-23 [Doc. No. 25].) Defendants also argue that Plaintiff cannot establish the proximate cause element, and regardless, Plaintiff is barred by her contributory negligence. (Id. at 23-25.)
a. Defective Product
The parties agree that J.D.O.'s dress-both the shell and lining-met the federal flammability standard under 16 C.F.R. § 1610, also known as Commercial Standard ("CS") 191-53. Defendants argue that the dress is not defective because it passed the federal testing regulations. (Defs.' Mem. in Supp. of its Mot. for Summ. J. at 15 [Doc. No. 25].)
The Minnesota Supreme Court rejected Defendants' very argument in Gryc v. Dayton-Hudson Corp. , 297 N.W.2d 727 (Minn. 1980), a case that considered whether cotton flannelette was unreasonably dangerous for use in children's sleepwear because of its highly flammable characteristics. In Gryc, a four year old girl, wearing loose-fitting 100% cotton flannelette pajamas, was watching television in the living room while food was cooking on an electric stove in the kitchen. 297 N.W.2d at 729. Her mother set a timer above the stove and went to the basement to do laundry. Id . Shortly after the timer sounded, the girl went to the kitchen, moved a chair to the stove, climbed onto it, reached above the stove, and turned off the timer. Id . Her pajama top touched a lit burner and instantly ignited, resulting in second- and third-degree burns and scars to 20% of her body. Id. at 729-30. At trial, the defendant argued that the cotton flannelette was not unreasonably dangerous, in part because it complied with the Flammable Fabrics Act. Id. at 730. The jury nonetheless found the defendant liable and awarded compensatory and punitive damages, which the Minnesota Supreme Court affirmed. Id. at 729. The Minnesota Supreme Court agreed with the trial court's findings because substantial evidence established that
the CS 191-53 test was not a valid indicator of the flammable characteristics of fabrics and did not take into account the uses to which a fabric would be put in determining its safety... It was shown that newspaper passed the CS 191-53 test with a 48-percent margin of safety... Furthermore, there was evidence that the test was adopted as a result of industry influence and, therefore, served to protect the textile industry rather than the public.
Id. at 733-34. It also noted the opinion of several courts that compliance with the CS 191-53 test did not preclude a finding that a product was unreasonably dangerous. Id. at 734. This Court finds similarities between the instant facts and those of Gryc, and, like other courts, declines to give conclusive weight to an industry standard. Accordingly, Defendants cannot avoid liability simply because J.D.O.'s dress met the federal flammability standard.
In addition, the Court respectfully disagrees with Defendants' position that there is no design defect because no safer alternative allegedly existed, and because the risk of burn injury to children when calculated against the hours of wear is minimal. First, there is a genuine issue of material fact as to whether a safer alternative design existed. Plaintiff submits expert testimony that
There are several less dangerous alternatives such as using one hundred percent nylon or polyester which are widely employed in untreated fire safe children's sleepwear. Such garments are readily found in children's wear retail stores. Another possibility also available in children's retailers is flame retarded cotton, or permanently flame retarded (PFR) rayon to manufacture a similar dress. These choices too are readily available in children's sleepwear garments, e.g from Carter's for Kids and suppliers similar to Gymboree. The safe choices are more difficult to ignite, can self extinguish or are slower burning, have considerably less heat output while also being much easier to extinguish any flaming which might occur.
(Expert Report of Gordon H. Damant at 23, Ex. E to Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. [Doc. No. 28-4].) If believed, such evidence might permit a jury to conclude that J.D.O.'s predominantly cotton, non-flame retardant dress was defective. Second, even if the risk of a child sustaining an injury such as J.D.O.'s is minimal, the parties appear to agree that such injuries nonetheless occur each year. The Court therefore finds Defendants' argument of de minimis injury to be insufficient for summary judgment.
Viewing the facts most favorably toward Plaintiff, as the Court must do on Defendants' motion for summary judgment, the record shows that a reasonable jury could find J.D.O.'s dress to be defective. For example, Plaintiff's expert, Steven Spivak, opines that J.D.O.'s dress had extreme ignition and flammability characteristics because of its predominantly cotton fiber content and its "open bottom, wide flowing skirt design, " which "allows for a known fire chimney effect' and acceleration of flame growth." (Final Report of Steven Spivak at 17, Ex. G to Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. [Doc. No. 28-4].) Mr. Spivak further states that
Cotton fabric in loose fitting garments such as this Gymboree dress [is] especially dangerous due to their inherent design, easy ignition and high fire growth plus high heat transfer. The published scientific literature ranks this type of fiber and fabric cotton, and dress design, coverage plus fit, among ...