Groesbeck v. Bumbo International Trust

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 29, 2017
• Docket: 15-4150
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

November 29, 2017 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

LINSEY GROESBECK and NICHOLAS GROESBECK, individually and as next friends and guardians of A.G., a minor,

Plaintiffs - Appellants,

v. No. 15-4150 (D.C. No. 1:13-CV-00090-DB) BUMBO INTERNATIONAL TRUST (D. Utah) f/k/a JONIBACH MANAGEMENT TRUST, JONIBACH PTY, LTD. f/k/a BUMBO PTY LTD., and WAL-MART- STORES, INC.,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before KELLY and HOLMES, Circuit Judges. **

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** The Honorable Neil Gorsuch heard oral argument in this appeal, but has since been confirmed as an Associate Justice of the United States Supreme Court; he did not participate in the consideration or preparation of this order and judgment. The practice of this court permits the remaining two panel judges, if in agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997) (noting this court allows remaining panel judges to act as a quorum to resolve an appeal); Murray v. Nat’l Broad. Co., Inc., 35 F.3d 45, 47–48 (2d Cir. 1994) (remaining two judges of original three-judge panel may decide petition for rehearing without In this products-liability action, Linsey Groesbeck and Nicholas Groesbeck

(individually and as next friends and guardians of A.G., a minor) (collectively the

“Groesbecks”) allege that their child, A.G., suffered severe injuries when she fell

from the “BUMBO BABY SITTER” seat (“Bumbo Seat”), which Mr. Groesbeck

had placed on an elevated kitchen counter. As a result of those injuries, the

Groesbecks brought strict-liability and negligence claims against the manufacturer

of the Bumbo Seat, Bumbo International Trust f/k/a/ Jonibach Management Trust

and Bumbo Pty. Ltd. (collectively “Bumbo”), and the retailer of their particular

seat, Wal-Mart Stores, Inc. (“Wal-Mart”). Finding that the Groesbecks’ claims

failed as a matter of law, the district court entered summary judgment and a

subsequent award of costs against them. The Groesbecks appeal.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district

court’s judgment.

I

In 1997, Johan Buitendach, a South African toolmaker, and his son, Johan

Buitendag (collectively the “Buitendachs”) designed, developed, and carved the

Bumbo Seat—a Styrofoam seat that would allow caregivers to “feed, play, and

interact” with infants in a “propped up” (but unharnessed) position. Aplts.’ App.,

third judge), cert. denied, 513 U.S. 1082 (1995).

2 Vol. II, at 337 (Decl. of Johan Buitendag, dated Sept. 29, 2014). Following

limited design adjustments (and other slight modifications), the Buitendachs

began manufacturing and marketing the product under the umbrella of two family-

run companies: Bumbo International Trust and Jonibach (Pty) Ltd. In the early

years, the Buitendachs sold the Bumbo Seat only on a “very small scale” in South

Africa, but by 2003, expanded their sales to “over 30 countries,” including to the

United States. Id.

As the scope of sales expanded, Bumbo submitted the product for consumer

safety assessments by two independent agencies, Specialised Technology

Resources (UK) Ltd. (“STR”) and Bureau Veritas Consumer Products Services,

Inc. (“BVCPS”). In these safety assessments, the Bumbo Seat received

satisfactory ratings for its physical properties, material and construction qualities,

and performance characteristics. Similarly, the Bumbo Seat received passing

scores for the visibility, durability, and size of its warning markings, product

specifications, and other safety information.

A

In June 2004, Bumbo began to receive complaints of infants “fall[ing]” or

“maneuver[ing]” out of the Bumbo Seat. Aplts.’ App., Vol. III, at 521–22

(Bumbo’s Log of Customer Complaints). Over the next three years, Bumbo

documented over 200 similar complaints, with some reporting physical injuries.

Despite these injuries, Bumbo made no immediate design modifications to the

3 Bumbo Seat, reasoning instead that at least some of the blame rested with

“[p]arents” who failed to “read the [Bumbo Seat’s safety] instructions.” Aplts.’

App., Vol. IV, at 791 (Dep. of Donald Pillai, dated Mar. 11, 2009).

Bumbo changed course, however, in October 2007, after receiving a letter

from the U.S. Consumer Product Safety Commission (“CPSC”). In the letter,

CPSC described its receipt of “more than 28 reports of young children falling out

of . . . [Bumbo] seats that had been placed on elevated surfaces.” Id. at 849 (Dep.

of Antionette Wagenaar, dated Mar. 10, 2009). Following this communication,

Bumbo voluntarily recalled (albeit at CPSC’s insistence) the entire retail

inventory of Bumbo Seats, in order to improve the safety information and

instructions. As part of these efforts, Bumbo added warnings to the product

packaging that instructed consumers to “[n]ever use [the Bumbo Seat] on any

elevated surface,” Aplts.’ App., Vol. II, at 232, warned that “some babies will be

able to move out of the Bumbo™,” id. at 233, and advised parents to “never leave

[their] child unattended,” id. Similarly, Bumbo revised the instructional leaflet

included within the product packaging to emphasize that the product was intended

for use “on a safe, ground level surface,” and to reiterate the following warning:

WARNING Prevent falls, never use on any elevated surface. Do not use: • as a car or bath seat. • in water. • for prolonged periods. Use responsibly, some babies may get out of this seat.

4 Never leave your baby unattended.

Id. at 235; accord id. at 318. Finally, Bumbo placed these revised warnings on

the Bumbo Seat itself:

WARNING

NEVER USE ON A RAISED SURFACE NEVER USE AS A CAR SEAT OR BATH SEAT DESIGNED FOR FLOOR LEVEL USE ONLY NEVER LEAVE YOUR BABY UNATTENDED AS THE SEAT IS NOT DESIGNED TO BE TOTALLY RESTRICTIVE AND MAY NOT PREVENT RELEASE OF YOUR BABY IN THE EVENT OF VIGOROUS MOVEMENT

***

WARNING - Prevent Falls: Never use on any elevated surfaces

Id. at 236–27; accord Aplts.’ App., Vol. II, at 319. 1

The CPSC then issued a press release advising consumers that if they

placed the Bumbo Seat “on a table, countertop, chair, or other elevated surface,

young children [could] arch their backs, flip out of the Bumbo Seat, and fall onto

the floor, posing a risk of serious head injuries.” Id. Vol. IV, at 962 (Press

Release, dated Oct. 25, 2007). The CPSC consequently advised that “[c]onsumers

should use the Bumbo seat at ground level, but should never leave a child

1 Visual depictions of these five warnings appear in Appendix A to this Order and Judgment, reproduced from the record in the order in which we have described them.

5 unattended.” Id. In addition, the CPSC encouraged consumers to “contact

Bumbo to obtain new warning label stickers and instructions, free of charge.” Id.

However, the CPSC did not require the installation of safety restraints, and

Bumbo declined to make any design changes, opting instead to hire a public

relations company to educate the public “on the purpose and safe use of the

product.” Id. Vol. III, at 558 (DPK’s Public Relations Recommendation, dated

Nov. 2007).

Despite the improved (post-recall) warnings and the public relations

campaign, Bumbo continued to receive reports of injuries from the use of the

Bumbo Seat at ground level and on elevated surfaces.

B

In the spring of 2010, the Groesbecks purchased their post-recall Bumbo

Seat from a Wal-Mart in North Logan, Utah, and proceeded to use the product on

elevated and ground surfaces over the next two years. Despite their lengthy

period of using the seat, the Groesbecks claimed to be unaware of any safety

hazards, and believed that the Bumbo Seat could function safely and effectively

on elevated surfaces.

Things changed on June 24, 2012. Mr. Groesbeck was preparing breakfast

for A.G. and her two-year-old brother. With A.G. seated in the Bumbo Seat on

top of the kitchen island and A.G.’s brother positioned at the opposite end of the

kitchen counter, Mr. Groesbeck attempted to feed each child. As he reached for

6 the dishwasher, however, he heard a sound and turned to find that A.G. had fallen,

face down, on the tile floor. As a result of the fall, A.G. underwent emergency

neurosurgery, and the Groesbecks contend that her injuries have caused

permanent adverse effects.

C

During the same general period, the CPSC reported additional “incidents

and injuries involv[ing] both recalled Bumbo seats and Bumbo seats sold after the

recall with the additional on-product warnings.” Aplts.’ App., Vol. III, at 554

(Press Release, dated Nov. 22, 2011). As a result, the CPSC urged parents to “use

caution,” and reiterated to consumers that infants could “fall or escape from the

[Bumbo] seat by arching backward, leaning forward or sideways or rocking.” Id.

In direct communications with Bumbo, the CPSC then detailed its “preliminary

determination that the Bumbo [S]eats . . . present a Substantial Product Hazard

(SPH) . . . [and] a Substantial Risk of Injury (SRI) to children,” because “the seat

[failed to] safely contain infants.” Id. Vol. IV, at 1014 (Email, dated Oct. 11,

2011). Given that assessment, the CPSC demanded that Bumbo prepare “a design

modification to either address infant retention & tip over; and/or discourage ease

of placing on high surfaces; and/or address area of impact (e.g. an attached play

mat—discouraging convenience of counter placement, while also creating a soft

surface should infant fall out while on floor),” and stated that “the warnings on

the product and contained in the instructions must be substantially revised.” Id.

7 Following these demands, Bumbo voluntarily recalled the Bumbo Seats

sold throughout the United States. As part of the recall, Bumbo instructed

consumers to stop using the Bumbo Seat until they ordered and installed the free

repair kit: “a restraint belt with a warning label, installation instructions, safe use

instructions and a new warning sticker.” Id. Vol. V, at 1017. Bumbo also

released “Voluntary Recall Safety Information,” explaining that the safety

restraint would “help prevent children from getting out of or falling from the

seat,” but nonetheless emphasizing that, “[e]ven with the belt, the seat should be

used only as intended—on the floor with adult supervision.” Id. at 1031.

D

Following the 2012 recall, the Groesbecks filed suit against Bumbo and

Wal-Mart, asserting design-defect and failure-to-warn claims. The district court

entered summary judgment on each of the Groesbecks’ claims, and subsequently

awarded Bumbo and Wal-Mart $31,684.32 in costs. The Groesbecks’ timely

appeal followed.

II

“We review a grant of summary judgment de novo, drawing all reasonable

inferences and resolving all factual disputes in favor of the non-moving party.”2

2 Because we review summary-judgment determinations de novo, “we need not separately address [the Groesbecks’] argument that the district court erred” by misapplying the summary-judgment standard and “by viewing evidence in the light most favorable to [Bumbo and Wal-Mart].” Rivera v. City and Cty. of

8 Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015) (quoting

Yousuf v. Cohlmia, 741 F.3d 31, 37 (10th Cir. 2014)).

“A court shall grant summary judgment if ‘the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). A dispute is genuine

when “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party,” and a fact is material when it “might affect the outcome of the

suit under the governing [substantive] law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

III

The Groesbecks bring claims under two distinct theories of liability: strict

liability and negligence. We address each body of claims separately, and

ultimately conclude that the district court appropriately entered summary

judgment in favor of Bumbo and Wal-Mart on each of the Groesbecks’ claims.

We first address the Groesbecks’ position that the district court erred in

granting summary judgment on their strict-liability claims against Wal-Mart and

Bumbo for design defect and failure to warn. In entering summary judgment on

these claims, the district court found that Utah’s passive-retailer doctrine shielded

Denver, 365 F.3d 912, 920 (10th Cir. 2004); see also Park v. Gaitan, 680 F. App’x 724, 730 n.4 (10th Cir. 2017) (unpublished).

9 Wal-Mart from strict liability, and that the Groesbecks failed to raise a triable

issue on their claims against Bumbo. Challenging these conclusions on appeal,

the Groesbecks argue that the district court misapplied Utah’s passive-retailer

doctrine, and ignored the genuine and material evidence they raised to support

their strict-liability claims against Bumbo. We reject these arguments.

Turning to the Groesbecks’ strict-liability claims against Wal-Mart, the

district court found that Utah’s passive-retailer doctrine shielded Wal-Mart from a

strict-liability suit, because Wal-Mart “did not participate in the design,

manufacture, engineering, testing, or assembly of the Bumbo Seat.” Aplts.’ App.,

Vol. IX, 2057–59 (Dist. Ct. Order, dated Sept. 9, 2015). The Groesbecks quarrel

with this conclusion, arguing that “Wal-Mart’s knowledge of the [alleged] defects

in the Bumbo Seat preclude[] it from relying upon the passive[-]retailer doctrine.”

Aplts.’ Opening Br. at 46–48; accord Aplts.’ Reply Br. at 24–27. For the reasons

that follow, we agree with the district court that Utah’s passive-retailer doctrine

shields Wal-Mart from strict liability, and conclude that Wal-Mart’s knowledge

(if any) of the alleged defect properly plays no part in that analysis.

Under Utah’s Product Liability Act (“PLA”), Utah Code Ann. § 78B–6–701

to –707 (West 2008), a “manufacturer” or “initial seller” of an “unreasonably

dangerous [product]” can be held liable for the entire amount of any resulting

damages, id. § 78B–6–703(1); see also Ernest W. Hahn, Inc. v. Armco Steel Co.,

10 601 P.2d 152, 158 (Utah 1979), regardless of the degree of fault “attribut[ed] to

that individual tortfeasor as opposed to another tortfeasor,” Sanns v. Butterfield

Ford, 94 P.3d 301, 305 (Utah Ct. App. 2004) (quoting Nat’l Serv. Indus. v. B.W.

Norton Mfg. Co., 937 P.2d 551, 554 (Utah Ct. App. 1997)). In 1986, however, the

Utah Liability Reform Act (“ULRA”), Utah Code Ann. § 78B–5–820(1) (West

2008), “replaced the rule of joint-and-several tort liability with a rule of

comparative fault.” McQuivey v. Fulmer Helmets, Inc., 335 P.3d 361, 363 (Utah

Ct. App. 2014). The ULRA’s comparative-fault regime limited the “maximum

amount” of a defendant’s liability to the “percentage or proportion of fault

attribut[able] to that defendant.” Utah Code Ann. § 78B–5–820(1).

Consequently, under the ULRA, “a plaintiff in a products-liability case may

recover from each defendant only in proportion to that defendant’s fault

(including strict liability).” McQuivey, 335 P.3d at 363.

The ULRA therefore created inherent “[t]ension” with the PLA, in that

“together they require a finder of fact to apportion relative fault to a codefendant

whose liability does not depend on fault as commonly understood in tort law.” Id.

at 364. In response to this tension, Utah state courts “devised the passive-retailer

doctrine”—“an exception to strict liability” under the PLA for sellers “who do not

‘participate in the design, manufacture, engineering, testing, or assembly’ of a

product.” Id. (quoting Sanns, 94 P.3d at 307).

“Under this doctrine, ‘a passive retailer is not subject to a strict liability

11 claim . . . where the manufacturer is a named party to the action.’” Id. (omission

in original) (quoting Yirak v. Dan’s Super Mkts. Inc., 188 P.3d 487, 489 (Utah Ct.

App. 2008)). In that scenario, Utah courts reason, “there remains no

[justification] to require [a passive retailer] to incur the time and expense of

defending” the action, Sanns, 94 P.3d at 307, because strict liability fault “lies

with the manufacturer, not with . . . the passive retailer,” Yirak, 188 P.3d at 489

(Utah Ct. App. 2008) (quoting Sanns, 94 P.3d at 307).

Utah courts have discussed and applied the passive-retailer doctrine on a

few occasions. In each decision, the Utah courts have stressed the doctrine’s

sweeping breadth and straightforward application. In Sanns, for example, a

commercial van unexpectedly “rolled several times, seriously injuring [the

plaintiff] and other passengers.” 94 P.3d at 303. As a result, the plaintiff brought

suit “to hold both [the retailer] and [the manufacturer] strictly liable for

manufacturing and design defects in the van.” Id. at 307. Nevertheless, because

the retailer had no part “in the design, manufacture, engineering, testing, or

assembly of the van,” the Utah Court of Appeals determined that the passive-

retailer doctrine shielded the retailer from strict liability. Id. at 307.

Similarly, in Yirak, the plaintiff discovered a piece of glass in her

prepackaged salad, and proceeded to bring strict-liability claims against the seller

and the manufacturer. See 188 P.3d at 488, 489 n.3. As in Sanns, however, the

undisputed evidence demonstrated that the retailer played no role in the

12 “manufacture [], design [], repackag[ing], label[ing], or inspect[ion] [of] the

prepackaged salads supplied by [the manufacturer],” id. at 489 (first and second

alterations in original) (quoting the record), and the Utah Court of Appeals

concluded that the passive-retailer doctrine shielded the retailer from strict

liability, id. at 490.

Finally, in McQuivey, after a protective helmet collapsed during an all-

terrain vehicle crash, the plaintiff brought suit against the foreign manufacturer

and the domestic distributor. See 335 P.3d at 362. The domestic distributor

argued for application of the passive-retailer doctrine, but the record evidence

reflected that the distributor exercised some involvement in the helmet design (by

receiving samples), participated in the manufacture and testing (by conducting on-

site visits of the assembly line and reviewing quality-control procedures), and

held “itself out to the public as the manufacturer.” Id. at 365. Accordingly, the

Utah Court of Appeals found the passive-retailer doctrine inapplicable. Id. at

366.

Sanns, Yirak, and McQuivey, individually and collectively, speak to one

clear premise: a passive retailer cannot be held strictly liable for a product defect

unless the record evidence discloses some basis to conclude that the retailer

participated in the design, manufacture, engineering, testing, or assembly of the

challenged product. Viewed through this lens, the passive-retailer doctrine

squarely defeats the Groesbecks’ strict-liability claim against Wal-Mart, because

13 the Groesbecks concede that Wal-Mart performed none of these functions. The

Groesbecks acknowledge instead Bumbo’s exclusive role in the design,

manufacture, engineering, testing, and assembly of the Bumbo Seat.

Nonetheless, the Groesbecks “quote” Sanns and Yirak for the proposition

that “knowledge of any design or manufacturing defect” defeats passive-retailer

protection, Aplts.’ Opening Br. at 46 (purporting to quote Sanns, 94 P.3d at

305–06), and then proceed to recount the evidence that reveals, in their view,

Wal-Mart’s “knowledge of the Bumbo Seat’s defects,” id. at 46. The passive-

retailer doctrine, however, includes no knowledge component, and the

Groesbecks’ Sanns-centric argument relies on a summary of the Utah trial court’s

decision, not the Sanns holding. Compare id. (“Under Utah law, a passive retailer

is a seller who ‘did not participate in the design, manufacture, engineering, testing

or assembly’ of the product and who had “no knowledge of any design or

manufacturing defect.” (purporting to quote Sanns, 94 P.3d at 305–06)), with

Sanns, 94 P.3d at 307 (reciting the trial court’s finding that the retailer “was

merely a passive retailer with no knowledge of any design or manufacturing

defects,” but concluding on appeal that the retailer qualified as a passive retailer

because it “did not participate in the design, manufacture, engineering, testing, or

assembly” of the challenged product (emphasis added)). Similarly, the Yirak

court mentioned knowledge in a parenthetical summary of Delaware’s statutory

approach to the passive-retailer doctrine, see 188 P.3d at 489 n.4 (quoting Del.

14 Cod. Ann. tit. 18, § 7001 (West 1999)), and then in summarizing the plaintiff’s

wide-ranging evidentiary deficiencies on summary judgment, see id. at 489, but

not in defining the contours of Utah’s passive-retailer exception.

Thus, the Groesbecks’ position that knowledge constitutes a required

element of the passive-retailer doctrine finds no convincing source in Utah law,

and “it is not our place to expand Utah state law beyond the bounds set by the

Utah [state courts].” Belnap v. Iasis Healthcare, 844 F.3d 1272, 1295 (10th Cir.

2017) (quoting Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1280 (10th Cir.

2000)). For all of these reasons, we conclude that the entry of summary judgment

was appropriate on the Groesbecks’ strict-liability claim against Wal-Mart.

We next address the Groesbecks’ argument that the district court erred in

granting summary judgment on their strict-liability claims against Bumbo for

design defect and failure to warn. Addressing each aspect of these claims, we

agree with the district court’s summary-judgment decision.

Under Utah law, “[p]roducts liability [claims] always require[] proof of a

defective product, which can include ‘manufacturing flaws, design defects, and

inadequate warnings regarding use.’” Gudmundson v. Del Ozone, 232 P.3d 1059,

1070 (Utah 2010) (quoting Bishop v. GenTec Inc., 48 P.3d 218, 225 (Utah 2002)).

In order to recover for a design defect under a strict-liability theory, the

15 Groesbecks must prove: “(1) that a defect or defective condition of the product

made it unreasonably dangerous, (2) that the defect was present at the time of the

product’s sale, and (3) that the defective condition [caused] the plaintiff’s

injuries.” Id. at 1072 (emphasis added) (quoting Schaerrer, 79 P.3d at 928); see

also Utah Code Ann. § 78B–6–703(1) (describing the same standard).

The PLA then defines the critical term “unreasonably dangerous” to mean:

that the product was dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer, or user of that product in that community considering the product’s characteristics, propensities, risks, dangers, and uses together with any actual knowledge, training, or experience possessed by that particular buyer, user, or consumer.

Utah Code Ann. § 78B–6–702. Simply stated, the statutory definition “imposes

‘an objective consumer expectations test’ supplemented by a ‘subjective test

based on the individual knowledge, training, and experience of the particular

buyer, user, consumer, or, possibly, victim.’” Henrie v. Northrop Grumman

Corp., 502 F.3d 1228, 1232 (10th Cir. 2007) (interpreting and applying Utah law)

(quoting Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1282 (10th Cir. 2003)). 3

Under the objective test, “[t]he issue, roughly speaking, [concerns] whether

an ordinary person would think the product is less dangerous than it is.” Brown,

328 F.3d at 1280. The subjective component, by contrast, considers “the

3 Henrie and Brown discuss Utah Stat. Ann. § 78–15–6, a statute that has since been renumbered as Utah Code Ann. § 78B–6–703 (the version of the PLA we discuss and apply here).

16 particular person’s appreciation of the product’s danger,” id. at 1282, as evident

from the “actual knowledge, training, or experience possessed by that particular

buyer, user or consumer,” Utah Code Ann. § 78B–6–702; see also Brown, 328

F.3d at 1281–82. Importantly, subjective “information can only work against a

plaintiff’s claim that a product is unreasonably dangerous because it increases the

extent of the perceived danger beyond that contemplated by the ordinary and

prudent person.” Brown, 328 F.3d at 1282; see also Henrie, 502 F.3d at 1232.

Consequently, if a product does not meet the objective meaning of “unreasonably

dangerous,” courts need not reach “the subjective information of the ‘particular’

person.” Niemela v. Imperial Mfg., Inc., 263 P.3d 1191, 1196 (Utah Ct. App.

2011) (quoting Brown, 328 F.3d at 1282).

Considering these matters, the district court reasoned that the Bumbo Seat

failed to qualify as “unreasonably dangerous” because the combination of

“[c]ommon sense” and the numerous product warnings readily disclosed the risk

of children falling from the seat. Aplts.’ App., Vol. IX, at 2061–62. To bolster

this conclusion, the district court pointed to the “remarkably” low number of falls

(ninety-one out of 3.85 million Bumbo Seats sold), and concluded that “the

ordinary and prudent consumer understood the danger a Bumbo Seat pose[d] and

[did] not risk leaving a child unattended on an elevated surface.” Id.

In ascribing error to this disposition, the Groesbecks draw our attention to

17 three pieces of “material” evidence: 4 first, the conclusion of their liability expert,

Dr. John E. Meyer, on the “unreasonably dangerous and defective[] design[],”

given the product’s “clear propensity to cause serious injuries to children—even

while being used on the floor”; second, to the ongoing, post-recall injuries and the

related reports on the beneficial impact of a safety restraint system; and third, to

the fact that other district courts have denied summary judgment on design-defect

claims raising the “precise question” at issue here.5 Aplts.’ Opening Br. at 20–23.

None of this evidence raises a genuine dispute regarding the Groesbecks’ design-

defect claim.

4 In addition, the Groesbecks refer us, without discussion, to “other evidence” contained within widely scattered portions of the appellate record. Aplts.’ Opening Br. at 22 (citing Aplts.’ App., Vol. III, at 438–43, 453–58, 715–17; id. Vol. IV, at 742–43, 834–35, 854–55, 860–61, 865, 939–41; id. Vol. V, at 1091)). The “other evidence” includes (1) pieces of the Groesbecks’ summary judgment submissions to the district court, see Aplts.’ App., Vol. III, at 438–43, 453–58; (2) largely obscured Bumbo marketing materials, see id. at 715–17; (3) pages of deposition testimony, see id. Vol. IV, at 742–43, 834–35, 854–55, 860–61, 865, 939–41; and (4) a document entitled “Standard Consumer Safety Specification for Children’s Chairs and Stools.” Aside from identifying this “evidence,” the Groesbecks provide no substantive discussion of these materials; yet, “bald assertions in briefs,” as here, do not provide a sufficient basis to invoke appellate review, much less to demonstrate genuine disputes of material fact sufficient “to merit reversal of summary judgment.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). 5 The Groesbecks complain that the district court erred by considering the affirmative defense of product misuse in the context of summary judgment. However, neither Bumbo nor Wal-Mart appeared to move for summary judgment on a defense of misuse. And, more to the point, the district court’s decision does not reference or dispose of any such defense. As a result, we need not address this matter further.

18 Under the objective inquiry applicable here, we consider whether the

Bumbo Seat posed a greater risk of falling (whether from an elevated surface or

not) than “would be contemplated by the ordinary consumer . . . with the ordinary

knowledge common to the community as to [the Bumbo Seat’s] characteristics.”

Brown, 328 F.3d at 1280–81 (quoting R ESTATEMENT (S ECOND ) OF T ORTS § 402A,

cmt. i (Am. Law. Inst. 1965)). In other words, Utah law considers a product

objectively defective “only where the product is, at the time it leaves the seller’s

hands, in a condition not contemplated by the ultimate consumer, which will be

unreasonably dangerous to him.” Henrie, 502 F.3d at 1233 (quoting

R ESTATEMENT (S ECOND ) OF T ORTS § 402A, cmt. g).

Utah’s consumer-expectations test therefore differs markedly from the risk-

utility analysis that some jurisdictions employ, where the inquiry focuses on “the

actual risks and benefits of the design” and relies upon expert evidence regarding

product safety and feasible, alternative designs. Brown, 328 F.3d at 1281. This

critical legal distinction proves dispositive here. A straightforward (untrained)

inspection of the Bumbo Seat (at the relevant time of sale) reveals the following:

(1) the product consists of a single piece of molded foam with leg holes and

without any semblance of a restraint system; (2) the product bears numerous

warnings advising consumers never to use the product on elevated surfaces; and

(3) the warnings on the product and packaging specifically disclose (in numerous

locations) the risk of a fall or “release . . . in the event of vigorous movement.”

19 Aplts.’ App., Vol. II, at 236–37 (depicting images of the Bumbo Seat); see also

id. Vol. III, at 582 (explaining, based on a visual inspection and certain

specification documents, that the Bumbo Seat “possesses no restraints, but rather

depends on the geometric design of the device to restrain the occupant”); id. Vol.

IV, at 962 (describing the Bumbo Seat as a piece of molded foam with leg holes,

with warnings advising that “the seat is not designed to be totally restrictive and

may not prevent release . . . in the event of vigorous movement’”). Viewed in this

light, the Bumbo Seat’s physical appearance and its warnings should have

suggested a risk of falling to the ordinary and prudent consumer, especially when

the seat is used on raised surfaces. 6

6 Relying on similar observations, the district court reasoned that “[c]ommon sense” would have warned “the ordinary and prudent consumer” of the risk of release “without a restraint.” Aplts.’ App., Vol. IX, at 2061. The Groesbecks challenge this assertion by arguing that the district court improperly “hazard[ed] a guess at what ‘common sense’ may tell ‘the ordinary and prudent consumer,’” all while ignoring any common sense inference in their favor. Aplts.’ Opening Br. at 24–25. Relying on their expert and Bumbo’s marketing materials, the Groesbecks then suggest that “the Bumbo Seat’s allegedly ‘revolutionary’ design—and Bumbo’s marketing campaign—caused parents to either underestimate the dangers posed by the Bumbo Seat, or to fail to comprehend any danger at all.” Id. at 25 (quoting Aplts.’ App., Vol. V, at 505–06).

We find no fault in the district court’s analysis, however. Though they do not use the term “common sense” (or a derivative thereof), the court’s approach is consistent with the analysis evident in Brown, Henrie, and Niemela. In Brown, the plaintiff’s two-year-old son suffered injuries after a lawnmower backed over him, and the plaintiff brought suit on the theory that the lawnmower could have been equipped with a safety feature that prevented it from traveling in reverse with the mower blades engaged. See 328 F.3d at 1276–77. Based on our (continued...)

20 With those observations in mind, the question becomes whether the

Groesbecks’ recounted evidence on appeal raises a triable issue on whether the

ordinary consumer would have expected that an unrestrained infant might fall

from the Bumbo Seat if it was left on an elevated surface. Addressing each piece

of evidence, we conclude that their evidence falls short.

The Groesbecks’ expert, Dr. Meyer, defined the Bumbo Seat as an

“unreasonably dangerous” product. 7 Id. Vol. III, 494 (Decl. of Dr. John E. Meyer,

dated June 23, 2014). Dr. Meyer’s conclusion, however, hinged on his view of

the beneficial impact of an alternative safety system, not on his opinion of the

6 (...continued) perspective of the product (and the lack of any sufficiently compelling counter- arguments or evidence), however, we determined that “[a]n ordinary and prudent user of the mower would have appreciated the danger arising from the operation of the mower blades while the tractor was moving in reverse.” Id. at 1283. Similarly, in Henrie, the plaintiff injured his arm and shoulder while using a “glass fixture” to paint military airplane parts. 502 F.3d at 1229. Based on our review of the evidence, however, we concluded that the glass fixture did not meet Utah’s standard for “unreasonably dangerous,” because the “community of users . . . contemplated” the relevant hazard. Id. at 1238. Finally, in Niemela, the plaintiff alleged that a mailbox’s design defect caused her serious and permanent hand injuries. See 263 P.3d at 1194. In considering the objective inquiry, however, the Utah Court of Appeals concluded, “[i]n [its] judgment,” that the mailbox flaws provided insufficient evidence to meet the consumer-expectations test. Id. at 1197 (emphasis added). These decisions endorse a common-sense approach, and we follow them here. 7 In addition, Dr. Meyer opined that Bumbo’s design violated industry standards. Dr. Meyer, however, offers his industry-standards opinion only as added support for his position on a safer alternative design; consequently, this aspect of his opinion likewise fails to address the objective expectations of the ordinary consumer regarding the product as actually marketed and purchased here.

21 ordinary consumer’s expectations of the product as marketed and purchased here.

Indeed, in his nineteen-page report, Dr. Meyer details, at great length, a safer and

economical alternative design, but makes no reference to the consumer-

expectations analysis. Nor does he offer an opinion on the central question here:

whether the Bumbo Seat posed a danger beyond what “would be contemplated by

the ordinary and prudent buyer, consumer or user of [the Bumbo Seat] in th[e]

community.” Henrie, 502 F.3d at 1233 (quoting Utah Code Ann. § 78–15–16(2)

(the PLA prior to renumbering)). Dr. Meyer’s opinion therefore creates no

genuine dispute of material fact on the Groesbecks’ design-defect claim. See

Henrie, 502 F.3d at 1230, 1233 (finding expert evidence of a safer alternative

design insufficient to satisfy the consumer-expectations test under Utah law);

Brown, 328 F.3d at 1279, 1282–83 (finding that an expert report on a safer

alternative design failed to satisfy the objective test under Utah law).

The Groesbecks fare no better with their evidence of ongoing injuries and

reports on the benefit of a safety restraint. Specifically, the Groesbecks draw our

attention, in particular, to the following: (1) a November 19, 2001 safety

assessment by TŪV Product Service (“TŪV”); (2) the continual injuries post-2007

recall (and warnings revisions); and (3) various correspondence and reports

relative to the 2012 product recall. However, at bottom, this evidence lends them

no succor.

In the safety assessment, TŪV concluded that the Bumbo Seat showed

22 “[c]ritical anomal[ies] for . . . safety,” Aplts.’ App., Vol. III, at 510 (Technical

Report No. 70021218, dated Nov. 19, 2001), because the product rested at a low

angle and lacked a safety restraint system, among other issues immaterial to this

appeal, see id. at 511–12. Although dressed in different terms, the TŪV

assessment ultimately offers nothing more than Dr. Meyer’s. TŪV simply

identifies a safer alternative design, but provides no information from which one

might divine the objective expectations of the ordinary (non-expert) consumer.

See Niemela, 263 P.3d at 1197 (rejecting the notion that the existence of an

“easier to use” or “safer” alternative addresses whether the product was

unreasonably dangerous).

Similarly, the Groesbecks point to the ongoing incidents after the 2007

recall. But they offer no connection between the mere occurrence of additional

injuries and the objective expectations of the ordinary consumer. Beyond that,

we agree with the district court that the number of incidents concerning the

Bumbo Seat, .0049%, 8 does not militate in favor of finding a genuine dispute of

8 The Groesbecks urge us to credit the “higher number” of incidents known to Bumbo (318), rather than the CPSC’s reported figure (ninety-one). The “higher number,” however, captures a wide swath of issues, and not just the circumstance that forms the foundation for the Groesbecks’ claim—i.e., falls from elevated surfaces. See Aplts.’ App., Vol. III, at 554 (identifying forty-five falls from elevated surfaces that occurred after the October 25, 2007 recall); id. Vol. IV, at 962 (identifying twenty-eight reports of falls from elevated surfaces prior to the October 25, 2007 recall); id. at 971–1011 (listing all known incidents relative to the Bumbo Seat). Consequently, we see no reason to adopt the higher figure, (continued...)

23 material fact on the expectations of the ordinary consumer. See id. at 1197

(finding the mere occurrence of injuries insufficient, without more, “to establish

that a product is unreasonably dangerous”).

Finally, we reject the Groesbecks’ effort to create a genuine dispute of

material fact through reliance on correspondence and reports relative to the 2012

product recall. The consumer-expectations test at issue here “considers a

defective condition to be present ‘only where the product is, at the time it leaves

the seller’s hands, in a condition not contemplated by the ultimate consumer,

which will be unreasonably dangerous to him.’” Henrie, 502 F.3d at 1233

(emphasis added) (quoting R ESTATEMENT (S ECOND ) T ORTS § 402A, cmt. g). The

circumstances surrounding a recall that occurred over two years later hardly

serves to significantly inform this at-the-time-of-sale inquiry, and the Groesbecks

have provided no authority to support their reliance on such temporally distant

information. 9

For all of these reasons, we conclude that the district court’s entry of

8 (...continued) and even if we did, our conclusion would remain the same. 9 Nor are we persuaded by the fact that “four [district] courts” from outside this circuit denied summary judgment with respect to purportedly analogous circumstances; those decisions applied different state laws to distinct factual records. Aplts.’ Opening Br. at 22 (referring to district court decisions from the Southern District of Texas, the Western District of Missouri, the Southern District of Florida, and the District of Arizona). Setting aside this critical distinction, federal district court decisions—whether within or without our circuit—are not binding on us.

24 summary judgment on the Groesbecks’ strict-liability claim against Bumbo for

design defect was appropriate, and turn to the Groesbecks’ claim against Bumbo

for failure to warn.

Under Utah law, “a manufacturer may be held strictly liable for any

physical harm caused by its failure to provide adequate warnings regarding the

use of its product.” House v. Armour of Am., Inc., 929 P.2d 340, 343 (Utah

1996). As with a claim for design defect, in order to recover on an inadequate-

warnings claim under a strict-liability theory, the Groesbecks must prove: (1) that

a defect or defective condition of the product made it unreasonably dangerous, (2)

that the defect presented itself at the time of the product’s sale, and (3) that the

defective condition caused the plaintiff’s injuries. See Gudmundson, 232 P.3d at

1072; see also Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 79 P.3d 922, 928

(Utah 2003) (same).

Under this standard, an adequate warning “must completely disclose all [of]

the risks involved, as well as the extent of those risks.” House v. Armour of Am.,

Inc., 886 P.2d 542, 551 (Utah Ct. App. 1994), aff’d, House, 929 P.2d 340. The

“warning must (1) be designed so it can reasonably be expected to catch the

attention of the consumer; (2) be comprehensible and give a fair indication of the

specific risks involved with the product; and (3) be of an intensity justified by the

magnitude of the risk.” Id. (quoting Pavlides v. Galveston Yacht Basin, Inc., 727

25 F.2d 330, 338 (5th Cir. 1984)). As in the design-defect context, a warning’s

overall adequacy “must be judged in light of the ordinary knowledge common to

members of the [relevant] community” at the time of sale. Id.; see also Utah

Code Ann. § 78B–6–703(1) (explaining that the claimed defect—inadequate

warnings—must exist at the time of sale); Dimick v. OHC Liquidation Trust, 157

P.3d 347, 350 (Utah Ct. App. 2007) (same).

Applying these principles, the district court found Bumbo’s warnings

adequate as a matter of law, given the “intuitively clear” risk of using the product

on a raised surface. Aplts.’ App., Vol. IX, at 2064–65. In doing so, the district

court noted the “two warnings on the box; one on the leaflet; and two on the

product itself,” and stressed that “the warning on the front of the Bumbo Seat

unambiguously state[d] ‘Prevent Falls: Never use on any elevated surface.’” Id.

at 2064.

Challenging this decision on appeal, the Groesbecks focus their attention on

the evidence that: (1) consumers often disposed of the Bumbo box after the time

of sale, and that the box’s “overabundance of information” may have, in any

event, diminished the ostensible importance of the product warning; (2)

typographical issues often obscured the on-product warnings after the time of

sale; (3) the on-product warnings failed to adequately convey the ease with which

a child could maneuver out of the seat, and the propensity of such maneuvering to

cause severe injury; and (4) the warnings should have been, in the opinion of the

26 Groesbecks’ expert, more conspicuous given the product’s seemingly benign and

innocuous appearance. Aplts.’ Opening Br. at 36–42. Despite their insistence to

the contrary, none of this evidence raises a genuine dispute of material fact on the

Groesbecks’ warnings-based claim.

The Bumbo Seat at the time of sale advised consumers in five separate

locations (and in emphasized print distinct from the surrounding material) against

engaging in the precise conduct that engendered A.G.’s injuries—that is, using

the Bumbo Seat on an elevated surface. The two warnings on the box stressed

that the Bumbo Seat should never be used on elevated surfaces, and explained that

“some babies will be able to move out of the Bumbo,” Aplts.’ App., Vol. II, at

232–34; the instructional leaflet reiterated this instruction and added that

consumers should “[u]se [the product] responsibly, [because] some babies may

get out of this seat,” id. at 235; and the on-product warnings reinforced these

directions by stating that the Bumbo Seat “MAY NOT PREVENT RELEASE OF

YOUR BABY IN THE EVENT OF VIGOROUS MOVEMENT” and that, to avoid

falls, consumers should “[n]ever use on any elevated surfaces,” id. at 236–37.

To the ordinary consumer, the numerosity, clarity, and prominence of these

warning would easily have communicated the dangers of placing the Bumbo Seat

on an elevated surface. Indeed, Bumbo used typographical features (size, color,

and capitalization) to underscore the importance of the warnings and to squarely

address the relevant risk of falls—among other means, warning of the hazard in

27 capitalized, bolded, and red-print font on the product itself. See infra App. A.

Furthermore, it positioned the numerous warnings in a manner justified by the

magnitude of the risk. Although the Groesbecks would undoubtedly quarrel with

these conclusions, their unsubstantiated challenges to the adequacy of the

warnings fail to raise a genuine dispute of material fact.

We also are not persuaded by the Groesbecks’ contentions regarding

disposal of warnings and alleged typographical deficiencies. See Aplts.’ App.,

Vol. III, 632 (Decl. of Michael Wogalter, Ph.D., dated Dec. 3, 2014) (explaining

the “well known [concept] that people commonly discard packaging after removal

of the product – as Mrs. Groesbecks did here”), id. Vol. IV, 787 (deposition

testimony of Bumbo’s marketing executive, Mr. Pillai, in which he acknowledges

that consumers discard the Bumbo box and leaflet, leaving only the product

itself). In this regard, we underscore that the adequacy inquiry focuses on the

nature of the warnings at the time of sale. Specifically, Utah law requires that the

defect be present at the time of sale, see Utah Stat. Ann. § 78B–6–703(1) (“[A]

product may not be considered to have a defect or to be in a defective condition,

unless at the time the product was sold by the manufacturer or other initial seller,

there was a defect or defective condition in the product which made the product

unreasonably dangerous to the user or consumer.” (emphasis added)). By

contrast, without reference to controlling or persuasive authority, the Groesbecks

would have us assess adequacy through the prism of after-sale consumer conduct

28 (the immediate disposal of the packaging materials, etc.) and typographical issues

that emerge after sale (fading ink and the like). This we cannot do.

More specifically, we cannot discern a sound legal basis for discounting the

significance of written warnings simply because consumers ultimately ignore

them. Similarly, we cannot conclude that typographical issues (most of which

arose after the time of sale) create a genuine dispute of material fact regarding the

adequacy of the Bumbo’s overall warnings.

Considering the warnings in the form provided at the time of sale, we

conclude that the district court’s entry of summary judgment was appropriate on

the Groesbecks’ strict-liability claim against Bumbo for failure to warn.

We next address the Groesbecks’ position that the district court erred in

granting summary judgment on their negligence claims against Bumbo (premised

on the same theories underpinning their strict-liability claims) and against Wal-

Mart (for breach of the alleged post-sale duty to warn).10 In entering summary

judgment in Wal-Mart’s favor, the district court applied a purported post-sale

duty to warn under Utah law, but found no violation of that duty as a matter of

10 The Groesbecks’ briefing leaves some ambiguity on the precise contours of their negligence claims against Wal-Mart. Nevertheless, their claim for breach of the continuing duty to warn appears to present their only potentially viable negligence claim, and the only theory they substantively and specifically press on appeal.

29 law. Turning to the Groesbecks’ negligence claim against Bumbo, the district

court reasoned that their general negligence claim failed for the same reasons as

their substantively identical strict-liability claim. Challenging these conclusions,

the Groesbecks argue that the district court misapplied Wal-Mart’s post-sale duty

to warn, and disregarded the material evidence that supported their negligence

claims against Bumbo. We reject these arguments.

Turning first to Wal-Mart’s alleged post-sale duty to warn, the district court

concluded that the Groesbecks failed to raise a genuine factual dispute on the

breach of this alleged duty, because the Groesbecks failed to demonstrate that

Wal-Mart could identify the purchasers of the Bumbo Seat or devise a means of

effectively communicating the post-sale danger. For the reasons explicated

below, we uphold the district court’s ruling.

We note at the outset that we are not aware of any Utah appellate case that

has applied a post-sale duty to warn in the context of a product seller, and perhaps

more importantly, the Groesbecks have not identified one. The district court

relied in its analysis on a case from the District of Utah, Herrod v. Metal Powder

Products, 886 F. Supp. 2d 1271 (D. Utah 2012), which did indicate that such a

duty attaches under certain circumstances to manufacturers or sellers of products.

See id. at 1277. However, in doing so, Herrod did not rely on Utah appellate

authority directly supporting that proposition. Instead, it looked to another

30 federal case out of the District of Utah, Dowdy v. Coleman Co., No.

1:11CV45DAK, 2011 WL 6151432 (D. Utah 2011) (unpublished).

Dowdy concluded that “the original seller” of the product at issue was

subject to such a post-sale duty to warn, but it did so only by equating such sellers

to a class of business entities that are clearly subject to such a duty under Utah

law—that is, successor entities that acquire the assets of a predecessor business

that produced or distributed an allegedly defective product. Id. at *3 (“[T]he

reasons for imposing a post-sale duty to warn in the successor context are the

same as the reasons for imposing a continuing duty to warn on the original

seller.”); see Tabor v. Metal Ware Corp., 168 P.3d 814, 818 (Utah 2007)

(imposing “an independent post-sale duty on successor corporations to warn

customers of defects in products manufactured and sold by the predecessor

corporation”) (emphasis added); see also R ESTATEMENT (T HIRD ) OF T ORTS :

P RODUCTS L IABILITY § 13 (Am. Law Inst. 1998) [hereinafter RESTATEMENT O F

T ORTS (T HIRD )] (providing in certain circumstances that a “successor corporation

or other business entity that acquires assets of a predecessor corporation or other

business entity” may be “subject to liability for harm to persons or property

caused by the successor’s failure to warn of a risk created by a product sold or

distributed by the predecessor”).

“[W]hen an appeal presents an unsettled question of state law, we must

ordinarily ‘attempt to predict how [the] highest court would interpret [the

31 issue].’” Belnap, 844 F.3d at 1295 (quoting Cornhusker Cas. Co. v. Skaj, 786

F.3d 842, 852 (10th Cir. 2015)). However, “[a]s a federal court, we are generally

reticent to expand state law without clear guidance from its highest court.”

Taylor v. Phelan, 9 F.3d 882, 887 (10th Cir. 1993); accord Schrock v. Wyeth, Inc.,

727 F.3d 1273, 1284 (10th Cir. 2013). This reticence causes us to decline to

definitively opine in the first instance on whether a post-sale duty to warn applies

under Utah law in the context of sellers like Wal-Mart: more specifically, we do

not reach this question because we need not do so to resolve this case; even

assuming arguendo such a duty does apply, the Groesbecks cannot prevail on

their claim predicated on it. See, e.g., PDK Laboratories v. U.S. DEA, 362 F.3d

786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the

judgment) (noting that “if it is not necessary to decide more, it is necessary not to

decide more”); accord Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd.,

616 F.3d 1086, 1094 (10th Cir. 2010).

As the guidepost for the post-sale “duty to warn standard” in the successor

context, the Utah Supreme Court looked to the R ESTATEMENT O F T ORTS (T HIRD ).

See Tabor, 168 P.3d at 818. We feel comfortable predicting that Utah’s highest

court would do so again, were it to define the relevant standard for such a duty in

the context of a seller like Wal-Mart. See Herrod, 886 F. Supp. 2d at 1277

(applying the R ESTATEMENT O F T ORTS (T HIRD ) standard for a post-sale duty to

warn in the seller context); Dowdy, 2011 WL 6151432, at *3 (same). Thus, we

32 focus on section 10 of the R ESTATEMENT O F T ORTS (T HIRD ), which provides:

(a) One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller’s failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller's position would provide such a warning.

(b) A reasonable person in the seller’s position would provide a warning after the time of sale if:

(1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and

(2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and

(3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and

(4) the risk of harm is sufficiently great to justify the burden of providing a warning.

Id. § 10. The Herrod decision based its ruling on the section 10 standard, see 886

F. Supp. 2d at 1277; so, in turn, did the district court here.

That court determined that the Groesbecks failed to raise genuine disputes

of material fact concerning the second and third elements. More specifically, the

court noted that the Groesbecks “refer only to deposition testimony that Wal-Mart

33 could identify consumers who bought the Bumbo Seat online” but that this

evidence was “irrelevant” because the Groesbecks purchased their seat in a brick-

and-mortar Wal-Mart store. Aplts.’ App., Vol. IX, at 2066 (emphasis added).

Furthermore, the court found that the Groesbecks had offered “no evidence” that

indicated such in-store posting “by Wal-Mart would sufficiently communicate the

warning to Plaintiffs or any other similarly situated purchasers,” nor had they

presented authority to validate the effectiveness and legal sufficiency of such

notice. Id.

Generally speaking, the district court’s analysis with regard to the

Groesbecks’ post-sale duty to warn claim is persuasive. On appeal, however, the

Groesbecks insist that they “did, in fact, present evidence with respect to warning

consumers who purchased Bumbo Seats in Wal-Mart stores, and not just with

respect to online purchasers.” Aplts.’ Opening Br. at 49. Insofar as the

Groesbecks advance this argument to establish that the district court was wrong in

finding that they cannot satisfy the second element of section 10, the record

fatally undercuts their position. The Groesbecks did not argue before the district

court that Wal-Mart could identify—and, thus, communicate with—consumers

that previously had bought Bumbo Seats in its brick-and-mortar stores, much less

present evidence to this effect. Their sole argument regarding the identification

of prior Bumbo Seat purchasers in the district court was that “Wal-Mart could

identify and communicate with customers who bought recalled products on line.”

34 See Aplts.’ App., Vol. VI, at 1240. Furthermore, even at this late stage of the

proceedings, the Groesbecks are apparently unable to identify any record evidence

to support their view that Wal-Mart could identify those consumers who

previously purchased Bumbo seats at brick-and-mortar Wal-Mart locations;

notably, the citations in the Groesbecks’ opening appellate brief relate to the

online identification and communication argument that they previously made to

the district court, and nothing more.

The Groesbecks do re-urge their argument that “Wal-Mart communicates

product recalls to purchasers by posting the recall notices in the stores from which

the product was purchased,” and they reason that a “reasonable jury could infer

from this evidence that Wal-Mart could have utilized the same method . . . to

provide continuing warnings to those who purchased Bumbo Seats in Wal-Mart

stores.” Aplts.’ Opening Br. at 49–50. However, even assuming that the

Groesbecks have accurately described Wal-Mart’s recall-notice practices, they fail

to meaningfully engage with the district court’s reasoning—viz., they fail to

explain why any such postings would be an effective communication device for

product-defect warnings, and their argument is devoid of supportive legal

authority. Accordingly, the Groesbecks fare no better here than they did in the

district court.

In sum, we conclude that the district court’s entry of summary judgment

35 was appropriate on the Groesbecks’ negligence claim against Wal-Mart for

violation of the purported post-sale duty to warn. 11

We next address the Groesbecks’ argument that the district court erred in

granting summary judgment on their negligence claims against Bumbo for design

defect and failure to warn. Challenging the district court’s decision, the

Groesbecks raise essentially the same arguments and theories they asserted with

regard to their strict-liability claims. We again reject these arguments, largely for

the reasons set forth supra.

Under Utah law, a negligence claim for design defect requires a duty of

reasonable care owed to the plaintiff by the defendant, a breach of that duty which

caused the claimed injuries, and resultant damages. See Niemela, 263 P.3d at

1198; Slisze v. Stanley-Bostitch, 979 P.2d 317, 320 (Utah 1999) (concluding that a

plaintiff can “simultaneously bring a negligence and a strict liability claim,” and

applying the well-known negligence standard); Barson ex rel. Barson v. E.R.

11 Because we discern no basis to sustain the Groesbecks’ ordinary negligence claim against Wal-Mart, we likewise agree with the district court’s entry of summary judgment on the Groesbecks’ gross negligence claim. See Pearce v. Utah Athletic Found., 179 P.3d 760, 767–68 (Utah 2008), abrogated on other grounds by Penunuri v. Sundance Partners, Ltd., --- P.3d ----, 2017 WL 3697701 (Utah 2017) (explaining that gross negligence requires substantially more proof than ordinary negligence).

36 Squibb & Sons, Inc., 682 P.2d 832, 835 (Utah 1984) (applying the traditional

negligence analysis in a products-liability case). In assessing the existence of a

duty of care, Utah courts consider: “(1) the extent that the manufacturer could

foresee that its actions would cause harm; (2) the likelihood of injury; (3) the

magnitude of the burden [borne from] guarding against [the harm]; and (4) the

consequences of placing the burden on the defendant.” Slisze, 979 P.2d at 320

(citing AMS Salt Indus. v. Magnesium Corp. of Am., 942 P.2d 315, 321 (Utah

1997)); see also Niemela, 263 P.3d at 1198 (citing and applying the framework of

Slisze and AMS Salt Indus., and explaining a manufacturer’s duty to eliminate any

unreasonable risk of foreseeable injury).

Our disposition of the Groesbecks’ strict-liability claim for design defect

sounds the death knell of the Groesbecks’ parallel negligence claim. Although

the Utah Supreme Court recognized in Slisze that a product-liability plaintiff

could simultaneously pursue negligence and strict-liability claims, the Slisze court

emphasized that Utah law imposes “no duty to make a safe [product] safer,” and

does not “requir[e] manufacturers to discontinue manufacturing less safe but

[still] non-defective products.” 979 P.2d at 320 (first alteration in original)

(quoting Ruff v. Cnty. of King, 887 P.2d 886, 891 (Wash. 1995)). Even more

importantly, the Slisze court stressed that negligent design claims should be

evaluated under the statutory standard for a strict-liability claim. See Henrie, 502

F.3d at 1236–37 (describing the overlapping inquiry under Utah law “between an

37 unreasonably safe design and a negligent design,” and affirming the entry of

summary judgment on negligence claims, because “there is no duty to make a safe

product safer and because the [challenged product] was not defective under” the

unreasonably dangerous analysis). Thus, a negligent design must also be an

unreasonably dangerous design. See id.

The Groesbecks support their negligent-design claim exclusively on the

(now-rejected) evidence used to support their strict-liability claims. Specifically,

they press the theory that Bumbo acted negligently by manufacturing a product

that created a foreseeable risk of injury. The Groesbecks’ theory, however,

amounts to little more than an argument that Bumbo negligently designed the

Bumbo Seat given the availability of a safer alternative design, despite the Bumbo

Seat’s failure to meet the statutory standard for an “unreasonably dangerous”

product. In other words, the Groesbecks urge us, contrary to Slisze, to impose a

duty to make the Bumbo Seat safer. Slisze—as we have previously

recognized—directly forecloses such reasoning. See Henrie, 502 F.3d at 1237

(noting that “because there is no duty [under Slisze] to make a safe product safer

and because the fixture was not defective under the consumer expectation test in §

78–15–6, the district court correctly granted summary judgment” on the plaintiff’s

negligence claim); Brown, 328 F.3d at 1283 (applying Slisze to a negligent-design

claim that mirrored the plaintiff’s strict-liability claim, and affirming the district

court’s entry of summary judgment).

38 As a result, we conclude that the district court’s entry of summary

judgment was appropriate on the Groesbecks’ negligence claim against Bumbo for

design defect, and turn to the Groesbecks’ negligence claim against Bumbo for

failure to warn.

As with their negligent-design claim, the Groesbecks premise their

negligent failure-to-warn claim on the same evidence as their strict-liability claim.

Our conclusion under the strict-liability rubric therefore applies equally to the

substantively identical negligence and gross-negligence claims. Stated succinctly,

we conclude that the Groesbecks fail to raise a triable factual issue on their

negligence and gross-negligence claim against Bumbo for failure to warn, because

the warnings were adequate as a matter of law. For that reason, we conclude that

the district court’s entry of summary judgment was appropriate on the

Groesbecks’ negligence claim against Bumbo for failure to warn.

IV

Finally, we address our appellate jurisdiction over the Groesbecks’s

challenges to the district court’s award of costs.

In the aftermath of the district court’s summary-judgment decision, Bumbo

and Wal-Mart sought an award of costs under Federal Rule of Civil Procedure

54(d). On October 6, 2015, the Groesbecks filed their Notice of Appeal from the

39 district court’s summary-judgment decision, together with a separate opposition to

the application for costs. The district court awarded $31,684.32 in costs, and the

clerk of court entered a corresponding judgment on December 22, 2015. The

Groesbecks, however, never filed a new or amended notice of appeal, nor do they

address our jurisdiction in their appellate briefing. Rather, in their appellate

briefing, the Groesbecks tacitly assume that we have jurisdiction over the costs

award, and then challenge the award on its merits. We lack jurisdiction, however,

over this aspect of the Groesbecks’ appeal.

Federal Rule of Appellate Procedure 3(c)(1)(B) requires a notice of appeal

to “designate the judgment, order, or part thereof being appealed,” Fed. R. App.

P. 3(c)(1)(B), and those designations circumscribe the scope of our appellate

review, see Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431, 444 (10th Cir.

1990). Nevertheless, “our jurisdiction will not be defeated if other papers [like, a

docketing statement or opening appellate brief] filed within the [thirty-day] time

period for filing the notice of appeal provide the ‘functional equivalent’ of what

Rule 3 requires.” Denver & Rio Grande W. R.R. Co. v. Union Pac. R.R. Co., 119

F.3d 847, 849 (10th Cir. 1997) (quoting Torres v. Oakland Scavenger Co., 487

U.S. 312, 317 (1988)).

The underlying proceedings here plainly reveal that we lack appellate

jurisdiction over the district court’s award of costs. Simply stated, the

40 Groesbecks filed no new or amended notice of appeal following the district

court’s judgment of costs, and their opening brief (filed March 1, 2016) cannot be

treated as the functional equivalent of a notice of appeal, because it came more

than thirty days after the district court’s judgment for costs (entered December 22,

2015). Accordingly, we lack jurisdiction to consider the costs award on appeal.

See Fed. R. App. P. 4(a)(4)(B)(ii); see also Art Janpol Volkswagen, Inc. v. Fiat

Motors of N. Am., Inc., 767 F.2d 690, 697 (10th Cir. 1985) (explaining that a

“separate notice of appeal is . . . required to obtain review” of an attorneys’ fees

determination that follows a judgment on the merits).

V

Based on the foregoing, we AFFIRM the district court’s judgment.

ENTERED FOR THE COURT

Jerome A. Holmes Circuit Judge

41 Appendix A See Aplts.’ App., Vol. II, at 316–19 (Bumbo’s Mot. for Summ. J., filed Sept. 30, 2014).