The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
This products liability case is before the Court on the defendant's motion for summary judgment. [Doc. 26].
The facts are largely undisputed in this products liability action. The plaintiff was assisting Ms. Davis, the owner of the stepladder which is the subject of this action, with hanging Christmas lights on her home. On November 17, 2003, the plaintiff was utilizing this stepladder in a fairly level area, and was standing on the second or third rung, with his body within the vertical confines of the ladder. The plaintiff contends that the ladder suddenly gave way, causing him to fall. At the time, Ms. Davis was standing behind the ladder and a Ms. Simerly was holding onto the ladder.
The subject ladder was purchased by Ms. Davis' husband, now deceased. Ms. Davis was not with him when the ladder was purchased, but does not think that her husband owned the ladder prior to 1995 or 1996. The defendant has submitted uncontroverted proof that the ladder was manufactured in 1984.
Summary judgment is appropriate when "there is no genuine issue of material fact." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of proving that no material facts exist, and the court must draw all inferences in a light most favorable to the non-moving party. A court may grant summary judgment when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Once the moving party has proved that no material facts exist, the non-moving party must do more than raise a metaphysical or conjectural doubt about issues requiring resolution at trial. Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992) (citations omitted).
In accordance with long standing summary judgment principles, this Court must construe the evidence in this record most favorably for the non-moving parties. E.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88(1986); Scott v. Clay County, 205 F.3d 867, 871 (6th Cir.2000). As explained by the Sixth Circuit in Scott, "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). See also Eastman Kodak v. Image Technical Services, 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Adams v. Metiva, 31 F.3d 375, 378-79 (6th Cir.1994). (emphasis added) Id. at 871.
The defendant's motion for summary judgment raises three bases for judgment in favor of the defendant as a matter of law on the plaintiff's tort claims, that is:
1. KLI, Inc. was not the designer, manufacturer, assembler, seller or distributor of the subject ladder.
2. The plaintiff's cause of action is barred by the applicable statute of repose for product liability actions.
3. Plaintiff's expert's testimony does not support a claim of defect and proximate cause.
Additionally, the defendant seeks judgment as a matter of law on the plaintiff's breach of warranty claims, to which the plaintiff has failed to respond. For the failure to respond, which presumably concedes this argument, and for further reason that breach of warranty claim is barred by the statute of limitations the plaintiff's breach of warranty claim will be dismissed. Layman v. Keller Ladders, Inc., 455 S.W. 2d 594, 596 (Tenn. 1970).
The first basis of the defendant's motion for summary judgment as to the plaintiff's tort claims is that it was not the "designer, manufacturer, assembler, seller or distributor of the accident ladder," but that the ladder was manufactured and distributed by Keller Industries, Inc., which company was liquidated in bankruptcy proceedings. Plaintiff simply rebuts this argument with a statement that the defendant has admitted that it was the manufacturer of the accident ladder. In reply, the defendant points to a portion of paragraph 4 of its amended answer to the amended complaint which states:
KLI denies that it manufactured or sold the ladder alluded to in the Amended Complaint and represented to be the ladder involved in Mr. Carter's fall. KLI avers the ladder alluded to in the Complaint was manufactured by Keller Industries, Inc.
Despite this seeming denial, KLI ignores the language of the first sentence of the same paragraph, which could be construed to mean that KLI manufactured the subject ladder. While such might simply be the result of a typographical error, the court must rely ...