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First Circuit Affirms Summary Judgment In Products Liability Case Where Plaintiff Failed To Show "Heightened Risk" Of Danger

The First Circuit has affirmed the dismissal of products liability claims against a shoe manufacturer because plaintiff failed to show defendant's shoes presented a "heightened risk" of entrapment on escalators. The Court said various facts did not substantiate that shoes presented a greater risk than other shoes, including: a dozen complaints of shoe entrapments over a three year period, a Japanese report that "resin sandals" have "a tendency to become entrapped in escalators," an internal email from an employee in Japan stating that government officials had asked that the company sell "new products" because of an "escalator issue," and a hangtag that the defendant placed on its shoes after the accident about safe escalator riding practices.

Plaintiff purchased defendant's shoes for her 8 or 9 year old daughter in California in 2009. In 2010, plaintiff and her daughter were riding on an escalator in Boston when the shoes became entrapped in the side of the escalator. The daughter's foot was injured. Plaintiff filed a products liability suit in federal district court in Boston. The essence of her allegations were that the shoes were prone to becoming entrapped in escalators, defendant knew of this risk, and defendant failed to redesign the shoes or provide adequate warnings. Defendant moved for summary judgment at the close of discovery and the district court granted the motion. Plaintiff appealed.

The First Circuit said under Massachusetts law a manufacturer owes a duty to warn foreseeable users of the dangers inherent in the use of its products. The duty to warn arises only when there is "some reason to suppose a warning is needed." A warning is needed only when there is some dangerous aspect of the product against which the warning might reduce risk.

With respect to the dozen reports defendant received of other incidents, the company's documents did not indicate whether the incidents related to the dangers normally attendant to escalators as opposed to the company's shoes. Even if the events all related to defendant's shoes, plaintiff did not provide any information indicating how this quantum of complaints compared to products made by other shoe manufacturers. In short, the reports did not present evidence that defendant's shoes pose a heightened risk of escalator entrapment.

The district court had refused to consider the Japanese report because it was not authenticated and because plaintiff did not have an expert to explain the significance of its findings. Plaintiff did not challenge these rulings on appeal but still argued the report was significant because the subsequent internal email supposedly indicates that the report was significant to defendant. The First Circuit said products are redesigned for a variety of reasons and responding to a regulator's concerns is not sufficient to establish that the concerns are justified.

Finally, the Court addressed a "hangtag" that defendant had placed on its shoes after plaintiff's incident. The hangtag urged purchasers to adhere to safe escalator riding practices such as standing in the middle of the escalator. (The court noted that this evidence might be inadmissible as a subsequent remedial measure but the parties did not argue that). The hangtag says nothing about any peculiar or heightened risk associated with defendant's shoes.

The First Circuit affirmed the grant of summary judgment.

Geshke v Crocs, Inc., No. 12-2204, slip opinion (1st Cir. Jan. 17, 2014)

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