United States District Court, M.D. Tennessee, Nashville Division
CRAIG M. GREER and KAREN R. GREER, Surviving Parents and Next of Kin of JERRY MICHAEL HARDY GREER, Deceased, Plaintiffs,
MOTION WATER SPORTS, INC., RETAIL CONCEPTS INC., d/b/a Sun & Ski Sports, and KENT SPORTING GOODS COMPANY, INC., Defendants.
ORDER AND MEMORADUM OPINION
WILLIAM L. CAMPBELL JR. UNITED STATES DISTRICT JUDGE
before the Court is Retail Concepts, Inc., d/b/a Sun &
Ski Sport (“Defendant”), Motion to Dismiss and
Supporting Memorandum of Law. (Doc. Nos. 54, 55). Plaintiff
filed a response in opposition (Doc. No. 56), and Defendant
has replied. (Doc. No. 57). For the reasons discussed below,
Defendant's Motion to Dismiss is
FACTUAL AND PROCEDURAL BACKGROUND
allege on July 10, 2016, Plaintiff Jerry Greer drowned while
wearing a Liquid Force LF'N Z-Cardigan Comp Adult Life
Vest (“Vest”). (Doc. No. 48, ¶ 11). The
father of one of Jerry Greer's friends purchased the
Vest, after seeing it placed next to Coast Guard approved
life vests, from Defendant's retail store in Nashville,
Tennessee. (Id. at ¶¶ 11-14). According to
the Complaint, the father of Jerry Greer's friend
purchased the Vest because it was much more expensive than
the Coast Guard approved vests and believed it would keep his
daughter afloat in the water. (Id.). On the date of
the incident, Jerry Greer's friend brought the Vest on
the boat outing and gave the Vest to Jerry Greer to put on
around him. (Id. at ¶ 24). While tubing on the
lake, the tube turned over, and Jerry Greer fell into the
water and drowned. (Id. at ¶¶ 27-29).
Plaintiffs allege the Vest was insufficient to keep Jerry
Greer afloat and was the proximate cause of Jerry Greer's
death. (Id. at ¶34).
November 3, 2017, Plaintiffs filed their First Amended
Complaint against Defendants Motion Water Sports, Inc. and
Kent Sporting Goods Company, Inc. alleging strict liability,
negligent misrepresentation, and breach of implied warranty
of fitness for a particular purpose. (Doc. No. 48,
¶¶ 36-59). Plaintiffs allege negligence against
Defendant Retail Concepts, Inc. and recklessness against all
Defendants. (Id. at ¶¶ 60-75). Defendant
Retail Concepts, Inc. filed their Motion to Dismiss Amended
Complaint on December 4, 2017. (Doc. No. 54).
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(6), permits dismissal of a
complaint for failure to state a claim upon which relief can
be granted. For purposes of a motion to dismiss, a court must
take all of the factual allegations in the complaint as true.
Ashcroft v. Iqbal, 556 U.S. 662 (2009). To survive a
motion to dismiss, a complaint must contain sufficient
factual allegations, accepted as true, to state a claim for
relief that is plausible on its face. Id. A claim
has facial plausibility when the plaintiff pleads facts that
allow the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id.
Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.
Id. When there are well-pleaded factual allegations,
a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement of relief.
Id. at 1.
argues the Tennessee Products Liability Act of 1978
(“TPLA”) protects non-manufacturing sellers in
product liability actions. Specifically, Defendant argues it
qualifies as a “seller” under the TPLA, and the
TPLA prohibits product liability actions against a seller
unless an exception applies. (Doc. No. 54). Accordingly, the
Court begins with analysis of the language of the TPLA.
TPLA defines a “seller” as, “a retailer,
wholesaler, or distributor, and means any individual or
entity engaged in the business of selling a product, whether
such sale is for resale, or for use or consumption.”
Tenn. Code Ann. § 29-28-102(7). The TPLA “shields
non-manufacturer sellers of products from liability”
unless one of the five exceptions apply. Cone v.
Hankook Tire Co., Ltd., 2016 WL 7383731 at *3 (W.D.
Tenn. Dec. 20, 2016). A product liability action
“includes all actions brought for or on account of . .
. death . . . caused by or resulting from the manufacture,
construction, design, formula, preparation, assembly,
testing, service, warning, instruction, marketing, packaging
or labeling of any product.” Tenn. Code Ann. §
29-28-102(6). Actions brought under the theory of product
liability, “includes but is not limited to, all actions
based on . . . negligence . . . or under any substantive
legal theory in tort or contract whatsoever.”
Id. Plaintiffs allege Defendant is liable for
negligence and recklessness. (Doc. No. 48, ¶¶
on the facts alleged in the First Amended Complaint,
Defendant qualifies as a “seller” under the TPLA,
and Plaintiff has not pleaded facts to satisfy any exception
under Section 29-28-106. (Doc. Nos. 48, 56). Instead, Plaintiffs
argues their claims against Defendant do not qualify as a
product liability action under the TPLA because Defendant
engaged in negligent merchandising, not marketing.
(Doc. No. 56 at 1-2) (emphasis added). Plaintiffs assert
Defendant's negligent conduct in “the misleading
manner in which it displayed competition vests with actual
life vests” constitutes merchandising, and the TPLA
does not apply. (Id. at 4, Doc. No. 48, ¶ 65).
Plaintiffs' argue Defendant's merchandising, or
conduct in the manner the Vests were displayed, was
negligent, and the TPLA does not encompass Plaintiffs'
claims under Tenn. Code Ann. § 29-28-102 (6). (Doc. No.
56 at 2).
support their argument, Plaintiffs look to the Magistrate
Judge's recommendation in Graves ex rel v. Qualitest
Pharms., 2013 WL 3198165 at *5 (W.D. Tenn. Jun. 21,
2013), in which a plaintiff sued individual pharmacists for
damages from the purchase of a recalled oral
contraceptive. The Magistrate Judge concluded Tenn. Code
Ann. § 29-28-106 did not apply because the
plaintiff's claim against the pharmacists was for simple
common law negligence instead of a product liability claim.
Graves, 2013 WL 3198165 at *7. The Magistrate Judge
noted the plaintiff's claim against the pharmacists was
not in regard to the defective product, but rather the
allegation that the pharmacists' conduct was negligent in
failing to contact the plaintiff. Id. Therefore, the
TPLA did not bar the negligence claim against the
as Defendant correctly observes, the district court adopted
the Magistrate Judge's ruling in Graves, but did
not adopt the Magistrate Judge's reasoning. (Doc. No. 57
at 4). The district court examined Tenn. Code Ann. §
29-28-106, and considered whether the statute shields
pharmacists from liability. Id. at *2. The court
noticed the pre-October 2011 version of the statute could
apply, depending on the date of plaintiff's conception,
and inquired into which statute the court should
apply. Because neither the plaintiff nor
pharmacists provided the district court with any evidence as
to whether the prior or current statute applied, the court
could not conclude that the pharmacists were not liable under
Section 29-28-106. Id. at *4. Defendant argues the
district court in Graves concluded retailers under
the current statute are not liable for their negligent
conduct, therefore they cannot be liable for their alleged
negligent conduct in displaying the Vests next to Coast Guard
approved life vests. (Doc. No. 57 at 4)
also rely on Jackson v. Ford Motor Co., 2016 WL
270485 (W.D. Tenn. Jan. 21, 2016), in which the district
court dismissed two defendants under Tenn. Code Ann. §
29-28-106.Plaintiffs assert the district court's
analysis in Jackson supports their position that the
TPLA is not the exclusive remedy against a retailer for
negligent conduct. (Doc. No. 56 at 7-8). In Jackson,
a car dealership sold a car to the plaintiff and later
performed maintenance and inspection services on the car.
Jackson, 2016 WL 270485 at *1. The car was involved
in an accident, and the plaintiff sued Gold Circle and Steve
Marsh Ford, Inc. (“SMF”).Id. The district
court found the first nine counts fell under the scope of
Tenn. Code Ann. § 29-28-102(6), and plaintiff could not
maintain these claims against Gold Circle and SMF because
they were non-manufacturer sellers. Id. at *2. As
for count ten, plaintiff alleged “Gold Circle and SMF
were negligent in failing to ‘properly diagnose and
repair the defects in [the deceased]'s 2012 Ford
Focus' and ‘failing to warn [the deceased] that the
defects existed and had not been repaired'”
Id. at *3 (citing plaintiff's complaint).
However, Gold Circle and SMF did not service the system that
caused the accident, and the district ...