Glenn v. Overhead Door Corp.

935 So. 2d 1074, 2006 WL 120065
CourtCourt of Appeals of Mississippi
DecidedJanuary 17, 2006
Docket2004-CA-01248-COA
StatusPublished
Cited by5 cases

This text of 935 So. 2d 1074 (Glenn v. Overhead Door Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glenn v. Overhead Door Corp., 935 So. 2d 1074, 2006 WL 120065 (Mich. Ct. App. 2006).

Opinion

935 So.2d 1074 (2006)

Malcolm Gerald GLENN, Administrator of the Estate of Brittany Glenn, Deceased, and Malcolm Gerald Glenn, Appellant
v.
OVERHEAD DOOR CORPORATION and Peter J. Maloney, Inc., Appellees.

No. 2004-CA-01248-COA.

Court of Appeals of Mississippi.

January 17, 2006.
Rehearing Denied May 23, 2006.

*1077 John David Weddle, Tupelo, J. Mark Shelton, attorneys for appellant.

William C. Murphree, Tupelo, attorney for appellees.

Before KING, C.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. Jolie Glenn placed her three-year-old daughter, Brittany, in a car with the engine running while it was parked in her garage with the garage door closed. Brittany died of carbon monoxide poisoning. Malcolm Glenn, Brittany's father and Jolie's ex-husband, sued Overhead Door, the manufacturer of an electronic garage door opener, and Peter Maloney, the seller and installer of the garage door opener. The Lee County Circuit Court granted summary judgment in favor of Overhead Door and Maloney. Malcolm appeals, raising the following issues:

I. WHETHER A FACTUAL ISSUE EXISTS REGARDING THE MOTHER'S ABILITY TO AVOID DANGER
II. WHETHER THE AFFIDAVIT FROM DR. BADEN CREATES A GENUINE ISSUE OF MATERIAL FACT
III. WHETHER OVERHEAD DOOR'S FAILURE TO WARN OF CARBON MONOXIDE POISONING CREATES A QUESTION OF MATERIAL FACT
IV. WHETHER A CONSUMER EXPECTATIONS TEST OR RISK-UTILITY TEST APPLIES
V. WHETHER THE TESTIMONY OF DR. RICHARD FORBES CREATES A QUESTION OF MATERIAL FACT

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Overhead Door Corporation designs and manufactures electronic garage door openers. Their garage door opener was installed in the residence of Jolie Glenn, a resident of Tupelo, Mississippi. On September 22, 1998, Jolie Glenn entertained guests in that home. After her guests had departed, Jerry Montgomery, one of the guests, returned and said that he had left his cell phone at Jolie's house. Jolie testified that she felt uncomfortable with Montgomery's presence. In an effort to get Montgomery to leave without creating a confrontation, Jolie said that she had to leave. Jolie took her three-year-old *1078 daughter, Brittany, and went to the garage, where she had parked her car. Jolie placed Brittany in the child's car seat and started the car. Montgomery told Jolie that he would leave, told her to go back into the house, and told her that he would get Brittany from the car and bring her into the house.

¶ 4. Jolie went back into the house, sat down, and fell asleep. When she awoke, she realized that Brittany was not with her. Jolie went into the garage and saw that the car had stopped running and that the garage door was closed. Brittany was in the car and died as a result of carbon monoxide poisoning.

¶ 5. Malcolm Glenn, Jolie's ex-husband and Brittany's father, sued Overhead Door and Peter Maloney, the seller and installer of the garage door opener, under theories of strict liability and negligence alleging design defect and failure to warn. Malcolm asserted that Overhead Door was negligent in not designing a door opener that would cause the door's motor to engage and the door to rise if the level of carbon monoxide reached a potentially dangerous level. Malcom claims that garage door opener technology exists that would enable Overhead Door to incorporate a sensor into the motor of the product. Malcolm asserted that such a sensor would have detected a dangerous level of carbon monoxide and would have activated the motor to raise the door.

¶ 6. Overhead Door moved for summary judgment, arguing that Malcolm could not meet his burden of production on the issues of causation in fact, defective design, and failure to warn. The circuit court entered summary judgment in favor of Overhead Door and Maloney.

ANALYSIS

¶ 7. The trial court may grant summary judgment only if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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." M.R.C.P. 56(c). The movant and non-movant maintain the burdens of production paralleling the burdens of proof they would bear at trial. Collier v. Trustmark Nat'l Bank, 678 So.2d 693, 696 (Miss.1996). The party seeking summary judgment has the burden of persuading the trial judge that there are no genuine issues of material fact, and that based upon the facts, he or she is entitled to summary judgment. Id. Malcolm contends that there are genuine issues of fact as to whether Brittany would have died of carbon monoxide poisoning if the garage door had been raised; whether Overhead Door and Maloney breached a duty to warn of carbon monoxide poisoning; and whether the garage door was designed in a way as to render the door unreasonably dangerous.

I. WHETHER A FACTUAL ISSUE EXISTS REGARDING THE MOTHER'S ABILITY TO AVOID DANGER

¶ 8. Malcolm concedes that a manufacturer does not have a duty to create a childproof garage door. However, a manufacturer does have a duty to provide a product that is reasonably safe without defeating its utility. Sperry-New Holland, a Div. of Sperry Corp. v. Prestage, 617 So.2d 248, 256 (Miss.1993). In balancing the utility of the product against the risk it creates, an ordinary person's ability to avoid the danger by exercising care is also weighed. Id.

¶ 9. In Williams v. Briggs Co., 62 F.3d 703, 707 (5th Cir.1995), an eleven-month-old child died as a result of the burns she sustained when her mother left her unattended in a bath tub with extremely *1079 hot water. The Fifth Circuit applied a risk-utility analysis and noted: "Obviously, Williams' 11-month [old] daughter was incapable of exercising care for her own safety. But, it goes without saying that manufacturers cannot make an absolutely safe product, especially for 11-month old children." Id. The Fifth Circuit affirmed the district court's entry for judgment as a matter of law in favor of the defendant, because the mother could have avoided placing her child in extremely hot water. Id. Similarly, Jolie could have easily avoided exposing Brittany to dangerous levels of carbon monoxide by not leaving her in a car unattended for an extended period of time with the engine running and the garage door down. We find this assignment of error to be without merit.

II. WHETHER THE AFFIDAVIT FROM DR. BADEN CREATES A GENUINE ISSUE OF MATERIAL FACT

¶ 10. Overhead Door and Maloney attached to their motion for summary judgment a report that Dr. Steven Hayne, a forensic pathologist, prepared. Overhead Door and Maloney designated Dr. Hayne as an expert witness. In preparation for this report, Dr. Hayne took a model vehicle and conducted testing. He concluded that Brittany would have died of carbon monoxide poisoning even if the garage door had been opened. Stated differently, Dr. Hayne concluded that the absence of a carbon monoxide sensor neither caused nor contributed to Brittany's death.

¶ 11. To rebut Dr. Hayne's testimony, Malcolm submitted a report from Dr. Michael Baden, a forensic pathologist. Dr. Baden's affidavit stated (1) that Dr. Hayne's measurements are not conclusive, (2) that Dr. Hayne's report does not establish to a reasonable degree of medical certainty that Brittany would not have survived and (3):

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Cite This Page — Counsel Stack

Bluebook (online)
935 So. 2d 1074, 2006 WL 120065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glenn-v-overhead-door-corp-missctapp-2006.