Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury.
Posted: June 6, 2016 Filed under: Illinois, Snow Tubing | Tags: Defective Product, Negligence, Negligent Product, Product liability, Snow Tubing, tubing hill Leave a commentIssues of why the plaintiff was standing up and not getting out of the way on a tubing hill was not discussed in the appellate decision.
Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638
State: Illinois, Appellate Court of Illinois, First District, Fifth Division
Plaintiff: Susan Buckel
Defendant: Tube Pro Inc.
Plaintiff Claims: Negligence (based on a product liability claim)
Defendant Defenses: No proof the allegedly defective product was theirs
Holding: For the Defendant
Year: 2016
The defendant is a snow tubing operation at a city park in Illinois. The plaintiff was tubing when something sticking out of the bottom of the tube slowed her down and stopped her. While stopped on the hill the plaintiff was struck by another tuber and was injured.
The defendant filed a motion for summary judgment saying the plaintiff could not prove her case because she could not identify what tube, let alone whose tube, (manufactured by whom), was the defective tube. The court granted the defendant’s motion, and the plaintiff appealed.
There was also exculpatory language on the back of the lift ticket the plaintiff purchased. It was raised by the defendant and discussed in one paragraph in the decision, but was not used by the court to reach its conclusion.
Analysis: making sense of the law based on these facts.
The court started its decision by looking at the testimony from the plaintiff used to describe the tube she was riding. Her testimony of the color of the tube did not match the receipts from the tubing hill that showed the tubes that were purchased from the defendant. The tubes purchased from the defendant was also purchased ten years prior to the accident so very few if any of them were still in operation with the tubing hill.
Defendant attached the deposition of plaintiff, who testified that the colors of the tubes at Villa Olivia on the date of her accident were “red, green, and blue.” Defendant also relied on the deposition of plaintiff to establish that the snow tube she used at the time of her accident was red. Plaintiff testified, “I believe it was red.”
Defendant also attached the deposition transcript of William Pawson, who testified that the snow tubes purchased by Villa Olivia from defendant were red and blue. William Pawson testified that he believed “those [were] the only two colors that we sold them.” Defendant also relied on William Pawson’s testimony that Villa Olivia purchased Tough Tube snow tubes that were “a mix of red, blue, maybe some green and plum, I would imagine, but red and blue for sure.” Defendant argued that the evidence showed that defendant was just one of the possible manufacturers which may have sold the red snow tube in question.
The defendants also introduced evidence showing that at the time tubes were purchased from the defendant, tubes were also purchased from another tube manufacturer.
The tubes sold by the defendant also had a plastic bottom, and the plaintiff testified her inner tube had a regular rubber bottom.
The court then looked at how a product liability claim based on negligence needed to be proven under Illinois’s law.
“A product liability claim [based] in negligence is concerned with both defendant’s fault and the condition of the product.” To succeed in a products liability claim based on negligence, a plaintiff must prove: (1) the existence of a duty; (2) a breach of that duty; (3), an injury that was proximately caused by that breach, and (4) damages. “‘A manufacturer has a nondelegable duty to produce a product that is reasonably safe for all intended uses.'” “A plaintiff must show that the manufacturer knew or should have known of the risk posed by the design at the time of the manufacture to establish that the manufacturer acted unreasonably based on the foreseeability of harm.” Moreover, in a products liability action asserting a claim based in negligence, “[t]he plaintiff must show that the manufacturer breached his duty to design something safer for the user because the quality of the product in question was insufficient.”
However, the most important issue is the plaintiff must identify the manufacturer of the defective product and establish a relationship between the injury and the product. The identification of the manufacturer must be more than speculation.
Most importantly, “the plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product.” While the plaintiff may prove these elements by direct or circumstantial evidence, “liability cannot be based on mere speculation, guess, or conjecture.”
Because the tube described by the plaintiff was different from what was sold by the manufacturer and because the plaintiff did not have the actual tube, the appellate court upheld the decision of the trial court.
She testified that a photograph of a snow tube used by her son showed a red-colored tube, but did not indicate the manufacturer’s name on it. Without the snow tube itself or any examination of it, plaintiff cannot establish or raise a genuine issue of material fact that defendant was the manufacturer. Without the snow tube itself or any photographs of it, or an examination of the snow tube to determine if the accident was a result of a preexisting defect, plaintiff cannot prove a prima facie products liability case against the defendant.
So Now What?
Simple but very lengthy decision because the court bent over backwards to prove why it could not rule for the plaintiff. Yet this decision is instructive because you have to have more than an injury to ask for money in a lawsuit or claim.
There must be a relationship with what caused you the injury, and the person you are claiming caused the injury and a relationship with you. Lacking one of those it does not matter if you signed a release or assumed the risk because you can’t prove negligence.
What do you think? Leave a comment.
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Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638
Posted: May 6, 2016 Filed under: Illinois, Snow Tubing | Tags: Defective Product, Negligence, Negligent Product, Product liability, Snow Tubing, tubing hill Leave a commentBuckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638
Susan Buckel, Plaintiff-Appellant, v. Tube Pro Inc., Defendant-Appellee.
No. 1-15-0427
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638
March 31, 2016, Decided
NOTICE: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).
PRIOR HISTORY: [**1] Appeal from the Circuit Court of Cook County. No. 13 L 116. The Honorable Kathy M. Flanagan, Judge, presiding.
DISPOSITION: Affirmed.
JUDGES: JUSTICE GORDON delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
OPINION BY: GORDON
OPINION
JUSTICE GORDON delivered the judgment of the court.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
ORDER
[*P1] Held: Where plaintiff did not and cannot produce the allegedly defective snow tube involved in her snow tubing accident or produce any photographs of the snow tube itself, and where the subject snow tube was never retrieved or examined for defects, plaintiff cannot establish a genuine issue of material fact that defendant was the manufacturer and thus the trial court did not err in granting summary judgment in favor of defendant.
[*P2] Plaintiff Susan Buckel brought this products liability action based on a negligence theory against defendant Tube Pro Inc., seeking damages for injuries she sustained during a snow tubing accident at the Villa Olivia ski facility in Bartlett, Illinois, on January 17, 2011. Plaintiff alleges that she was injured as a result of a defective snow tube manufactured by defendant. Defendant moved [**2] for summary judgment, claiming that plaintiff provided insufficient evidence to raise a genuine issue of material fact regarding the identity of the manufacturer of the snow tube in question. Defendant further argued that, without the claimed defective snow tube, plaintiff could not prove the necessary elements to establish a prima facie case of products liability against defendant. The trial court granted defendant’s motion, and plaintiff now appeals.
[*P3] For the reasons that follow, we affirm the trial court’s grant of summary judgment in favor of defendant.
[*P4] BACKGROUND
[*P5] I. Pleadings
[*P6] A. Complaint
[*P7] On January 4, 2013, plaintiff filed a complaint against defendants: (1) Daniel Corrado; Greater Chicago Distribution Corporation, individually and doing business as Villa Olivia; and Villa Olivia1; (2) Tube Pro; (3) “Unknown Snow Tube Manufacturer”; and (4) “Unknown Owners and Non-Record Claimants.”
1 On July 24, 2013, the trial court granted plaintiff’s motion to voluntary dismiss without prejudice, Daniel Corrado, Greater Chicago Distribution Corporation, individually and doing business as Villa Olivia. The record does not contain a copy of plaintiff’s motion, but includes the trial court’s order [**3] granting it.
[*P8] In her complaint, plaintiff made the following allegations:
[*P9] Plaintiff alleged that she was at Villa Olivia on January 17, 2011, and purchased a ticket to snow tube on the premises of Villa Olivia. Villa Olivia provided her with a snow tube to use, which was manufactured by defendant. As she descended down the hill using the snow tube provided by Villa Olivia, a sharp object stuck out of the tube, dug into the ground, and caused the snow tube to stop on the hill. While her snow tube was stopped on the hill, she was struck by another snow tube from behind and was injured. Plaintiff alleged her snow tube was defective.
[*P10] Only count II of plaintiff’s complaint, which is entitled “Negligence,” is directed at defendant. Plaintiff alleged that the snow tube she used at Villa Olivia was designed, manufactured, assembled, distributed, and sold by defendant. Plaintiff further alleged that defendant negligently designed, manufactured, distributed, and sold the snow tube equipment without appropriate safeguarding and an adequate warning label. Plaintiff also contended that defendant failed to adequately warn users of the dangers of the snow tube, to design and manufacture the snow tube [**4] safely, or to properly inform or instruct the purchaser of the snow tube’s use. Plaintiff alleged that defendant negligently tested and inspected or failed to test, inspect, and heed the test results of the subject snow tube involved in her accident. Plaintiff claimed that, as a result of defendant’s “careless and negligent acts and omissions,” she “was severely and permanently injured both internally and externally.”
[*P11] B. Answer
[*P12] On April 18, 2013, defendant filed its “Answer and Affirmative Defense” to plaintiff’s complaint. Defendant admitted that it manufactured snow tubes, including certain snow tubes used at Villa Olivia and that, on or before January 17, 2011, it engaged in the business of designing, manufacturing, assembling, distributing, and selling snow tubes. Defendant answered that it had no knowledge regarding the truth or falsity of plaintiff’s statement that the snow tube she used at Villa Olivia was designed, manufactured, assembled, distributed, or sold by defendant. Defendant denied it had negligently designed, manufactured, distributed, and sold snow tube equipment without appropriate safeguarding and an adequate warning label. Defendant also denied plaintiff’s allegation [**5] that it failed to adequately warn users of the dangers of the snow tube, to design and manufacture the snow tube safely, or to properly inform or instruct the purchaser of the snow tube’s use. Defendant also denied that it negligently tested and inspected or failed to test, inspect, and heed the test results of the subject snow tube involved in plaintiff’s accident.
[*P13] Defendant also asserted the affirmative defense of comparative negligence, claiming plaintiff was negligent in failing to observe and avoid the snow tube which allegedly struck her and was negligent in failing to move from the middle of the hill, when she knew, or in the exercise of ordinary care, should have known, that other snow tubes were descending down the hill. Defendant also claimed plaintiff was negligent in failing to properly inspect the subject snow tube prior to riding in it and was negligent in failing to keep a proper lookout. Defendant also alleged plaintiff was inattentive and unobservant to surrounding conditions and was the sole proximate cause of her alleged injuries and damages.
[*P14] C. Plaintiff’s Reply
[*P15] In response to defendant’s affirmative defense of comparative negligence, plaintiff denied she was negligent [**6] in failing to observe and avoid the snow tube which allegedly struck her or negligent in failing to move from the middle of the snow tube hill. Plaintiff also denied that she was negligent in failing to properly inspect the subject snow tube prior to riding it or that she was negligent in keeping a proper lookout. Plaintiff denied she was inattentive or unobservant to surrounding circumstances.
[*P16] D. Amended Complaint and Answer
[*P17] On July 8, 2013, plaintiff filed an amended complaint against defendant, naming as additional defendants “Village of Bartlett and the Bartlett Park District.”2 The allegations of count II, which were directed at defendant, remained substantially the same.
2 On October 28, 2013, plaintiff filed a motion to voluntarily dismiss, without prejudice, the Village of Bartlett, which the trial court granted on November 1, 2013. 735 ILCS 5/2-1009 (West 2010). Additionally, on November 1, 2013, the trial court granted defendant Bartlett Park District’s section 2-619(a)(5) motion to dismiss count V of plaintiff’s amended complaint, without prejudice. 735 ILCS 5/2-619(a)(5) (West 2010). Tube Pro is the only remaining defendant on appeal.
[*P18] On July 12, 2013, defendant filed its “Answer and Affirmative Defense to Plaintiff’s Amended Complaint,” [**7] which asserted the same affirmative defenses and denied the same allegations.
[*P19] On March 25, 2014, defendant filed a motion for leave to file an amended answer and affirmative defenses, which included the defense of comparative negligence pled in its prior answer plus additional affirmative defenses. Defendant raised the additional affirmative defense of joint and several liability and further contended that the exculpatory clause included on the snow tubing ticket plaintiff purchased from Villa Olivia barred plaintiff’s cause of action against defendant. Defendant also raised as an affirmative defense that the negligent act of the snow tube rider who struck plaintiff was an intervening or superseding cause of her accident, which barred recovery against defendant. The trial court granted the motion on March 25, 2014.
[*P20] On April 30, 2014, plaintiff filed a motion for leave to file answers to defendant’s amended affirmative defenses to plaintiff’s amended complaint.3
3 There is no order in the record indicating whether the trial court granted plaintiff’s motion for leave to file answers to defendant’s amended affirmative defenses to plaintiff’s amended complaint.
[*P21] While plaintiff admitted that [**8] she paid for a ticket to engage in snow tubing at Villa Olivia, she denied defendant’s allegation that, by purchasing the snow tubing ticket, she agreed to the terms and conditions of the exculpatory clause contained on the ticket. Plaintiff denied the allegation that the parties to the exculpatory clause intended that the terms and conditions of the exculpatory clause apply to defendant. Plaintiff further denied that defendant was a thirdparty beneficiary of the exculpatory clause and that the exculpatory clause included on the snow tubing ticket plaintiff purchased from Villa Olivia barred plaintiff’s cause against defendant.
[*P22] As to defendant’s additional affirmative defense of joint and several liability, plaintiff denied the allegation that the sole proximate cause of plaintiff’s accident was the negligent acts or omissions, or intentional, reckless, willful, and wanton acts or omissions, of other persons or entities not presently parties to the lawsuit, including, but not limited to, Bartlett Park District and the snow tube rider who struck her. Plaintiff further denied defendant’s allegation that, pursuant to section 2-1117 of the Illinois Code of Civil Procedure, any fault, which it specifically denied, was less than 25% of the [**9] total fault. 735 ILCS 5/2-1117 (West 2010).
[*P23] Plaintiff denied defendant’s affirmative defense that the negligent act or omission of the snow tube rider who struck her was an intervening or superseding cause of her accident, which barred recovery against defendant. Plaintiff also denied defendant’s allegation that the intervening or superseding negligent acts or omissions of the snow tube rider who struck her barred her recovery against defendant.
[*P24] On May 23, 2013, defendant filed answers to plaintiff’s interrogatories. Defendant named its president and co-founder, William Pawson, and its cofounder, Annie Pawson, as witnesses who would testify to the design, manufacture, and sale of snow tubes by defendant. Defendant also stated that William Pawson and Annie Pawson would testify that defendant manufactures snow tubes for sale and does not inspect or maintain products subsequent to sale to a customer.
[*P25] Plaintiff filed answers to defendant’s interrogatories.4 Plaintiff named certain of defendant’s employees as witnesses who would testify regarding their knowledge of the occurrence alleged in her complaint, including their observations and the policies of defendant. The witnesses included William Pawson, Annie [**10] Pawson, Victor Clark, Rick Root, Jennifer Huras, and Abby Pawson.5
4 Exhibit “A” to defendant’s motion for authorization regarding mental health records, subpoenas, and testimony contains plaintiff’s answers to defendant’s interrogatories, but it does not provide a date of filing.
5 The record does not contain a copy of the depositions of Victor Clark, Rick Root, Jennifer Huras, and Abby Pawson.
[*P26] On December 10, 2013, the trial court ordered party depositions to be completed by January 28, 2014. The depositions of William Pawson6 and Annie Pawson7 were discovery depositions.
6 Plaintiff attached an excerpt of William Pawson’s deposition in her response to defendant’s motion for summary judgment, and defendant attached the entire transcript of William Pawson’s deposition in its motion for summary judgment.
7 Plaintiff attached the entire transcript of Annie Pawson’s deposition as Exhibit “D” to her response to defendant’s motion for summary judgment.
[*P27] II. Motion for Summary Judgment
[*P28] A. Defendant’s Motion
[*P29] On September 15, 2014, defendant moved for summary judgment, claiming that plaintiff provided insufficient evidence to raise a genuine issue of material fact regarding the identity of the manufacturer [**11] of the snow tube in question. In its motion, defendant claimed that, because the snow tube was never inspected or retained after the accident, plaintiff could not prove the necessary elements to establish a prima facie case of product liability against defendant.
[*P30] In support of its motion for summary judgment, defendant relied on invoices indicating that Villa Olivia purchased snow tubes from two different companies: (1) defendant; and (2) Tough Tube Manufacturing Inc. (Tough Tube). An invoice showed that in September 2000, Villa Olivia purchased 100 snow tubes from Tough Tube. Another invoice showed that in December 2012, Villa Olivia purchased 14 refurbished snow tube covers from defendant. The invoices also showed that in 2008, Villa Olivia purchased 5 red snow tubes, 1 navy blue snow tube, and 10 refurbished snow tube covers from defendant. The invoices showed that in 2009, Villa Olivia purchased 10 royal blue snow tubes and 36 refurbished covers from defendant.
[*P31] Defendant attached the deposition of plaintiff, who testified that the colors of the tubes at Villa Olivia on the date of her accident were “red, green, and blue.” Defendant also relied on the deposition of plaintiff to [**12] establish that the snow tube she used at the time of her accident was red. Plaintiff testified, “I believe it was red.”
[*P32] Defendant also attached the deposition transcript of William Pawson, who testified that the snow tubes purchased by Villa Olivia from defendant were red and blue. William Pawson testified that he believed “those [were] the only two colors that we sold them.” Defendant also relied on William Pawson’s testimony that Villa Olivia purchased Tough Tube snow tubes that were “a mix of red, blue, maybe some green and plum, I would imagine, but red and blue for sure.” Defendant argued that the evidence showed that defendant was just one of the possible manufacturers which may have sold the red snow tube in question.
[*P33] William Pawson also testified that defendant never experienced any reports that its snow tubes were defective. William Pawson testified that he was not sure “how” or “why” a protruding object could come out of plaintiff’s snow tube. He testified that: “There is just the inner tube. It’s the only accessory item inside the actual tube cover. And the valve is welded to the tube itself. So I don’t understand. I’m not sure how that could occur.”
[*P34] Defendant further relied [**13] on plaintiff’s deposition that the snow tube involved in her accident did not have a plastic bottom. Plaintiff testified that the type of material she observed on the bottom of her snow tube “[was] not plastic,” but a normal inner tube material, which she assumed was rubber. Defendant also referenced William Pawson’s testimony to show that the bottom of defendant’s snow tubes were plastic. He testified that one of defendant’s component parts for its snow tubes is a “plastic bottom.”
[*P35] Defendant cited plaintiff’s deposition to show that she could not say for certain who the manufacturer of the snow tube was. Plaintiff testified that “[she] did not look at the markings on the tube” she used at the time of her accident and, therefore, was uncertain as to its manufacturer. Plaintiff testified, while looking at photographs that showed different snow tubes in use at Villa Olivia “before her accident,” she could not say for certain that they showed the name of defendant. Plaintiff testified:
“I can’t tell you the exact letters; but I can tell you how when you blow it up that it looks like two words, okay. And I can kind of make out certain letters; but could I clearly say it was a T or a P or [**14] a B or what, no.”
Plaintiff also testified she did not take any photographs of the exact snow tube involved in her accident.
[*P36] In sum, defendant argued that it was entitled to summary judgment as a matter of law because the snow tube involved in plaintiff’s accident was no longer available and, therefore, plaintiff could not identify the manufacturer of the snow tube nor support a reasonable inference that defendant manufactured the snow tube she used at the time of her tubing accident. In addition, defendant argued plaintiff could not prove a prima facie case without the allegedly defective snow tube.
[*P37] B. Plaintiff’s Response
[*P38] On December 1, 2015, plaintiff filed a response to defendant’s motion for summary judgment. In her response, plaintiff argued both: (1) that defendant was the manufacturer of the plaintiff’s defective snow tube; and (2) that genuine issues of material fact existed as to whether defendant’s defective snow tube was the proximate cause of plaintiff’s injuries.
[*P39] Plaintiff alleged that her snow tube was defective. Attaching excerpts of her deposition transcript, plaintiff described the defect as follows:
“DEFENDANT’S ATTORNEY: When is the first occasion you had to look [**15] at the tube after the accident?”
PLAINTIFF: The minute I came to a stop.
DEFENDANT’S ATTORNEY: While you were on the hill?
PLAINTIFF: While I’m on the hill.
DEFENDANT’S ATTORNEY: What did you see?
PLAINTIFF: I wanted to know why I was stuck. So I lifted up the tube, and I could see a 5-inch slash and this hard spiky thing sticking out of the tube *** It was a solid, a sharp object.”
Plaintiff further described the defect as follows:
“DEFENDANT’S ATTORNEY: Before the operator came up to you and upon you, did you look at the tube?
PLAINTIFF: Yes.
DEFENDANT’S ATTORNEY: And this–whatever you observed on the bottom of the tube, was it the material of the bottom of the tube?
PLAINTIFF: It looked like the insides of the tube.
DEFENDANT’S ATTORNEY: Well, the tube you told me was kind of like, in your mind at least, a standard rubber inner tube, correct?
PLAINTIFF: Well, I kind of remember–it could have been–I don’t recall the exact material of the tube, the outside of the tube; but the frozen object looked like it was coming out of the tube.
DEFENDANT’S ATTORNEY: This frozen object, was it part of the material of the tube or some foreign object?
PLAINTIFF: I thought maybe it was a metal piece or something, [**16] and it wasn’t. It was the innards of the tube, and I couldn’t even move it with my glove. It was shaped as if it was, like, a knifish form coming out.
DEFENDANT’S ATTORNEY: And how long was this shape?
PLAINTIFF: I know that the slash in the tube was about that big (indicating), so 5 inches, and then this item was coming out of it.”
[*P40] Plaintiff also attached the deposition transcript of Villa Olivia employee, Michael Conrardy, who worked on the snow tube hill for multiple winter seasons. Conrardy testified that during the 2010-2011 winter season, he found one snow tube in their “tube shack” that had a crack in it. Conrardy testified:
“DEFENDANT’S ATTORNEY: Did you ever become aware of cracking, cracks in the bottom of any snow tubes?
CONRARDY: Yeah, that was one thing that I noticed when I was working. I was bringing out the tubes out of the tube shack in the morning and there was quite a decent crack in the bottom.”
Conrardy further described the snow tube as follows:
“PLAINTIFF’S ATTORNEY: In as much detail as you can, can you describe to me first where the slit was?
CONRARDY: It was like the side. I don’t remember if it was the side near to where the rope connected or not, but it was just [**17] on the general like circumference of it, you know, and it was like a rounded slit that went–it was about eight inches long, and it wasn’t protruding in. It was more protruding out.
PLAINTIFF’S ATTORNEY: Okay.
CONRARDY: So if someone went down the hill, as a safety issue, if it was protruding out and they caught an edge they could just flip ***.”
[*P41] Plaintiff highlighted Conrardy’s testimony where he stated that “It would have caught snow and that’s what I’m saying. It wouldn’t protrude into the tube where it could hurt the person, like their bottom. It would literally protrude down and out.” Conrardy further stated that the slit “was on the bottom plastic part like right at the edge.” Conrardy recalled the tube with the slit “was just one of the ordinary tubes.”
[*P42] Plaintiff also attached the deposition transcript of Edward Jorens, Villa Olivia superintendant of golf and skiing, who was involved in the initial procurement and purchase of snow tubes for the facility. Jorens testified that “once in a while there’s cracks” in the plastic bottoms of the snow tubes. Jorens also testified that cracks “bigger than 2 or 3 inches or so” on the bottom of the snow tubes would “[t]o a certain degree” affect [**18] the speed of the tube going down the hill. Jorens also testified that he discussed the cracking at the bottom of the tubes with defendant and that “Annie [Pawson] [was] usually the person I talked to from Tube Pro.”
[*P43] In her response, plaintiff attached the deposition of Annie Pawson, who testified that defendant receives yearly complaints “in general” from customers about the bottom of their snow tubes being cracked. Annie Pawson testified that she has personally seen a bottom of a defendant snow tube being cracked and described it “as a slit, like a little slit, a scoring, just a little slit.” Annie Pawson also testified, “I don’t recall specifically my customer mentioning cracks, per se. I just recall them requesting that we refurbish some of their old stock that they had purchased in the past.”
[*P44] Plaintiff further claimed in her response that it was highly unlikely that Tough Tubes were being used at Villa Olivia at the time of her accident. In support of this claim, plaintiff attached testimony by Jorens, who testified that “an average of four or five” snow tubes were stolen per year. Jorens further testified:
“DEFENDANT’S ATTORNEY: With regard to the 100 tubes purchased from Tough [**19] Tube in September 2000, by the time you retired in December of 2010, do you know how many of those tubes were still left at Villa Olivia?
JORENS: Not very many. I’m sure of that.
DEFENDANT’S ATTORNEY: Why do you say that?
JORENS: Well, in other words, every year we’d send them back to get refurbished. Probably anywhere from I’m guessing 10, 10 of the tubes.”
DEFENDANT’S ATTORNEY: Did you send tubes to be refurbished to any company other than Tube Pro?
JORENS: No.”
[*P45] Plaintiff also relied on Jorens’s testimony to show that more defendant snow tubes were being used at Villa Olivia at the time of her accident than Tough Tube snow tubes. Jorens testified that, from 2000 to when he retired in 2010, Villa Olivia continued to purchase snow tubes from defendant. Jorens did not believe Villa Olivia purchased snow tubes from any other company from 2000 to 2010. Plaintiff also attached invoices showing that, from 2002 to 2009, Villa Olivia purchased 60 refurbished snow tube covers from defendant. The invoices also show that Villa Olivia purchased “5 red snow tubes,” “1 double rider snow tube,” “10 royal blue snow tubes,” and 27 inner tubes from defendant in the same period. Plaintiff also relied on [**20] Annie Pawson’s testimony and a “Customer Sales Ordering Info Sheet” to show that, in November 2002, defendant purchased 30 defendant snow tubes with Pepsi logos on them. Pawson testified as follows:
“PLAINTIFF’S ATTORNEY: Okay. And then the number of tubes, 30 and it has Pepsi. Do you know what the word next to Pepsi–is that tubes?
ANNIE PAWSON: Tubes, yes sir.
PLAINTIFF’S ATTORNEY: Is that a purchase by Villa Olivia, 30 new Pepsi tubes?
ANNIE PAWSON: Yes, it is.”
[*P46] Plaintiff also argued in her reply that “she was not an expert on materials or plastics” and therefore, her testimony about how her tube did not have a plastic bottom was immaterial in determining the identity of the manufacturer. Plaintiff relies on Conrardy’s testimony to show that he, too, was uncertain as to what the material of the tube bottoms were. Plaintiff points out that Conrardy testified that he believed the bottom of the tube was made of rubber, but then said it could be made of plastic after defendant counsel “raised the possibility of the bottom being plastic.” Conrardy testified:
“DEFENDANT’S ATTORNEY: And is it possible that the bottom may have been plastic as opposed to rubber, if you know?
CONRARDY: Actually, [**21] yeah, that’s a good point. I could see it being plastic because it just seemed more hard and thicker than the inside, so that actually makes sense because the inside was more cushiony than the bottom.”
[*P47] Plaintiff also attached an excerpt of William Pawson’s deposition transcript where he described Tough Tube and defendant as both having plastic bottoms. Pawson testified that they both had the “same sewing design premise whereby you have a sewn canvas top that’s pleated into the plastic bottom with the seatbelt based trim.”
[*P48] Finally, in her response, plaintiff claimed that she could still prove a prima facie case without the defective snow tube because the defect at issue was known to defendant.
[*P49] C. Trial Court’s Ruling
[*P50] On January 21, 2015, the trial court granted defendant’s motion for summary judgment. In its five-page memorandum opinion, the trial court held that defendant was entitled to summary judgment because “[p]laintiff [could not] establish, or even raise a question of fact that, defendant was the manufacturer of the subject snow tube.” The trial court noted that the “subject snow tube [was] no longer in existence” and, therefore, plaintiff could not “meaningfully identify the specific [**22] snow tube” that “she rode on the day of the accident.” The trial court stated that: “[n]either the Plaintiff nor any other evidence in the record can identify anything about the subject snow tube which distinguishes it from others in such a way that a reasonable inference can be made that defendant was the manufacturer of it.” The trial court found:
“[T]he evidence does not show that the specific defective condition complained of-that the tube bottom contained a 4 to 5 inch hard and sharp protrusion poking through a 5 inch slash which caused the tube to completely stop while going down the hill was known to be a common defect in a Tube Pro snow tube.”
The trial court reasoned: “The circumstantial evidence here may raise a possibility that defendant was the manufacturer of the snow tube, but it does not justify an inference of a probability that it was the manufacturer.” (Emphasis in original.) Based upon the foregoing, the trial court found that defendant was entitled to summary judgment.
[*P51] On February 12, 2015, plaintiff filed a notice of appeal, and this appeal followed.
[*P52] ANALYSIS
[*P53] In this direct appeal, plaintiff appeals the trial court’s grant of summary judgment in favor of defendant. Plaintiff argues [**23] that the evidence demonstrates a genuine issue of material fact about whether defendant was the manufacturer of the snow tube that caused her injuries. For the following reasons, we affirm the trial court’s grant of summary judgment.
[*P54] I. Standard of Review
[*P55] Summary judgment is appropriate where the pleadings, depositions, and admissions on file, together with any affidavits and exhibits, when viewed in the light most favorable to the nonmoving party, indicate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). When determining if the moving party is entitled to summary judgment, the court construes the pleadings and evidentiary material in the record strictly against the movant. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186, 766 N.E.2d 1118, 262 Ill. Dec. 815 (2002). We review a trial court’s decision on a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). De novo consideration means the reviewing court performs the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578, 948 N.E.2d 132, 350 Ill. Dec. 63 (2011).
[*P56] “Summary judgment is a drastic measure and should only be granted if the movant’s right to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102. “Mere speculation, conjecture, or guess is insufficient to withstand summary judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328, 722 N.E.2d 227, 242 Ill. Dec. 738 (1999). The party [**24] moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624, 872 N.E.2d 431, 313 Ill. Dec. 448 (2007). The movant may meet its burden of proof either “by affirmatively showing that some element of the case must be resolved in its favor” or by “‘establishing that there is an absence of evidence to support the nonmoving party’s case.'” Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). To prevent the entry of summary judgment, the nonmoving party must present a bona fide factual issue and not merely general conclusions of law. Caponi v. Larry’s 66, 236 Ill. App. 3d 660, 670, 601 N.E.2d 1347, 176 Ill. Dec. 649 (1992)). Therefore, while the party opposing the motion is not required to prove her case at the summary judgment stage, she must provide some factual basis to support the elements of her cause of action. Illinois State Bar Ass’n Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036, 911 N.E.2d 1144, 331 Ill. Dec. 914 (2009); Ralston v. Casanova, 129 Ill. App. 3d 1050, 1059, 473 N.E.2d 444, 85 Ill. Dec. 76 (1984). On a motion for summary judgment, the court cannot consider any evidence that would be inadmissible at trial. Brown, Udell & Pomerantz, Ltd. v. Ryan, 369 Ill. App. 3d 821, 824, 861 N.E.2d 258, 308 Ill. Dec. 193 (2006). Thus, the party opposing summary judgment must produce some competent, admissible evidence which, if proved, would warrant entry of judgment in her favor. Brown, Udell & Pomerantz, 369 Ill.App.3d at 824. Summary judgment is appropriate if the nonmoving party cannot establish an element of her claim. Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 368, 851 N.E.2d 626, 303 Ill. Dec. 439 (2006).
[*P57] We may affirm on any basis appearing in the record, whether or not the trial court relied on that basis, and even if the trial court’s reasoning was incorrect. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50, 594 N.E.2d 1344, 171 Ill. Dec. 824 (1992).
[*P58] II. Plaintiff’s [**25] Claim Against Defendant
[*P59] Plaintiff sued defendant under a products liability claim based on a theory of negligence. Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 89, 828 N.E.2d 1128, 293 Ill. Dec. 630 (2005) (discussing the differences between a products liability case based on a negligence theory and a strict products liability case). Plaintiff alleged that defendant committed one or more of the following careless and negligent acts or omissions: (1) designed, manufactured, distributed and sold the snow tube equipment without appropriate safeguarding and an adequate warning label; (2) failed to adequately warn users of the dangers of the snow tube; (3) failed to design and manufacture the snow tube safely; (4) failed to properly inform or instruct the purchaser of the snow tube’s use; and (5) negligently designed, manufactured, tested, inspected (or failed to test and inspect), and heeded the test results of the subject snow tube involved in her accident.
[*P60] “A product liability claim [based] in negligence is concerned with both defendant’s fault and the condition of the product.” Sobczak v. General Motors Corp., 373 Ill. App. 3d 910, 923, 871 N.E.2d 82, 312 Ill. Dec. 682 (2007) (citing Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 117, 454 N.E.2d 197, 73 Ill. Dec. 337 (1983)). To succeed in a products liability claim based on negligence, a plaintiff must prove: (1) the existence of a duty; (2) a breach of that duty; (3), an injury that was proximately caused [**26] by that breach, and (4) damages. Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 82, 955 N.E.2d 1138, 353 Ill. Dec. 327 (citing Heastie v. Roberts, 226 Ill. 2d 515, 556, 877 N.E.2d 1064, 315 Ill. Dec. 735 (2007)). “‘A manufacturer has a nondelegable duty to produce a product that is reasonably safe for all intended uses.'” Sobczak , 373 Ill. App. 3d at 923 (quoting Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 433, 764 N.E.2d 35, 261 Ill. Dec. 744 (2002)). “A plaintiff must show that the manufacturer knew or should have known of the risk posed by the design at the time of the manufacture to establish that the manufacturer acted unreasonably based on the foreseeability of harm.” Sobczak v. General Motors Corp., 373 Ill. App. 3d at 923 (citing Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 255, 864 N.E.2d 249, 309 Ill. Dec. 383 (2007)). Moreover, in a products liability action asserting a claim based in negligence, “[t]he plaintiff must show that the manufacturer breached his duty to design something safer for the user because the quality of the product in question was insufficient.” Blue, 345 Ill. App. 3d at 463 (citing Rotzoll v. Overhead Door Corp., 289 Ill. App. 3d 410, 419, 681 N.E.2d 156, 224 Ill. Dec. 174 (1997)).
[*P61] Most importantly, “the plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product.” Zimmer v. Celotex Corp., 192 Ill. App. 3d 1088, 1091, 549 N.E.2d 881, 140 Ill. Dec. 230 (1989) (citing Schmidt v. Archer Iron Works, Inc., 44 Ill. 2d 401, 405-06, 256 N.E.2d 6 (1970), cert. denied 398 U.S. 959, 90 S. Ct. 2173, 26 L. Ed. 2d 544). While the plaintiff may prove these elements by direct or circumstantial evidence, “liability cannot be based on mere speculation, guess, or conjecture.” Zimmer, 192 Ill. App. 3d at 1091. Therefore, when circumstantial evidence is relied on, the circumstances must justify an inference of probability as distinguished from mere possibility.” (Emphasis added.) Naden v. Celotex Corp., 190 Ill. App. 3d 410, 415, 546 N.E.2d 766, 137 Ill. Dec. 821 (1989); Mateika v. LaSalle Thermogas Co., 94 Ill. App. 3d 506, 508, 418 N.E.2d 503, 49 Ill. Dec. 649 (1981); Zimmer, 192 Ill. App. 3d at 1091.
[*P62] III. Parties’ Arguments
[*P63] A. [**27] Plaintiff’s Arguments
[*P64] On appeal, plaintiff claims that the trial court erred in granting defendant’s motion for summary judgment because she raised a genuine issue of material fact about whether defendant was the manufacturer of the snow tube. Plaintiff argues that, since the court is to consider the evidence strictly against defendant and liberally in favor of her, summary judgment was not a proper disposition here. Plaintiff argues that the record, including invoices and witness testimony, shows that fair minded persons could draw different conclusions about whether defendant was the manufacturer.
[*P65] Specifically, plaintiff argues that according to the testimony of Jorens, Villa Olivia’s superintendent of golf and skiing, four to five snow tubes were stolen each year between 2000 to 2011 and that the majority of defendant snow tubes purchased by Villa Olivia occurred in 2008 and 2009. According to plaintiff, this figure equates to potentially 44 to 55 Tough Tubes being stolen prior to plaintiff’s injury. Plaintiff also relies on invoices that show Villa Olivia purchased 60 refurbished snow tube covers from defendant. Plaintiff argues that, given the refurbishment of these 60 snow tubes [**28] and the approximately 44 to 55 Tough Tubes stolen each year between 2000 to 2011, it was highly unlikely that Tough Tubes were still being used at Villa Olivia at the time of plaintiff’s accident. Plaintiff also relies on the testimony of Jorens to show that more defendant snow tubes than Tough Tube snow tubes were being used at Villa Olivia in January 2011.
[*P66] Plaintiff also claims that witness testimony raises questions of material fact as to whether the defect identifies defendant as the subject manufacturer. Plaintiff claims that defendant was aware of alleged defects in its snow tubes at Villa Olivia prior to her accident. Annie Pawson testified that she had observed defective defendant snow tubes before and that Villa Olivia employee Conrardy described the defective snow tube he observed as having a protruding crack. Additionally, plaintiff relies on her own testimony when she described the alleged defect “like a knife had gone through the ice, sharp object had gone through the ice.” Jorens testified that he discussed the cracking plastic defect with defendant, and that the plastic cracking would decrease speed on a hill. Plaintiff also observes that, prior to January 2011, defendant [**29] had received yearly complaints regarding the cracking of the plastic bottoms.8 Based on this evidence, plaintiff argues that she can prove a prima facie case without the snow tube because the defect at issue was known to defendant.
8 In her brief, plaintiff claims that, prior to January 2011, defendant received yearly complaints regarding the plastic bottoms cracking, without citing to the record.
[*P67] B. Defendant’s Arguments
[*P68] Defendant, on the other hand, argues that the evidence presented to the trial court shows that plaintiff could not identify anything about the subject snow tube which distinguished it from other tubes such that a reasonable inference could be drawn that defendant manufactured the allegedly defective snow tube. Defendant claims that, without the snow tube, plaintiff has failed to present evidence on a critical element in her product liability claim based on negligence. Since plaintiff did not and could not produce the snow tube, she could not introduce the alleged defect into evidence. Consequently, defendant argues that plaintiff has failed to show and cannot show that any defect existed at the time the snow tube left defendant’s control. Hence, without the tube itself [**30] or photos of it, defendant asserts that a jury could only speculate about whether plaintiff’s injuries were caused by a defect in the tube, and whether the defect was present when the snow tube allegedly left defendant’s control, and whether defendant even manufactured the snow tube. Under such circumstances, defendant argues that the trial court properly entered summary judgment in its favor.
[*P69] IV. Failure to Cite Authority
[*P70] First, we observe that plaintiff’s appellate brief fails to comply with Illinois Supreme Court Rule 341(h)(7), which requires a proponent to cite supporting authority; and the failure to do so results in waiver. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Illinois Supreme Court Rule 341(h)(7) provides that an appellant’s brief must “contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” (Emphasis added.) Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). The purpose of this rule is to provide “[a] court of review” with “clearly defined” issues and cites to “pertinent authority.” People v. Trimble, 181 Ill. App. 3d 355, 356, 537 N.E.2d 363, 130 Ill. Dec. 296 (1989) (discussing the provisions of former Illinois Supreme Court Rule 341(e)(7), which is now numbered as Illinois Supreme Court Rule 341(h)(7), and its importance to the appellate court). A reviewing court “is not a depository in which the appellant may dump the burden of argument and research.” Trimble, 181 Ill. App. 3d at 356. The appellate [**31] court stated in Trimble:
“To ignore such a rule by addressing the case on the merits would require this court to be an advocate for, as well as the judge of the correctness of, defendant’s position on the issues he raises. On the other hand, strict compliance with the rules permits a reviewing court to ascertain the integrity of the parties’ assertions which is essential to an accurate determination of the issues raised on appeal.” Trimble, 181 Ill. App. 3d at 356-57.
[*P71] In the instant case, plaintiff failed to cite a single substantive case in support of her argument that the trial court improperly granted summary judgment in favor of defendant. The cases that plaintiff cites in the argument section of her brief merely establish general principles of law regarding summary judgment and a products liability action. In Part A of the argument section of her brief which discusses how the evidence justifies an inference of probability that defendant was the manufacturer of the subject snow tube, plaintiff cites only Black’s Law Dictionary and fails to cite any precedent in furtherance of her argument. Furthermore, in Part B of the argument section of her brief, plaintiff fails to cite any legal authority supporting her argument [**32] that she can prove a prima facie case without the defective tube since the defect at issue was known to defendant.9 Accordingly, because plaintiff has failed to comply with Illinois Supreme Court Rule 341(h)(7), the plaintiff has waived consideration of her claim that the trial court improperly granted summary judgment in favor of defendant.
9 Plaintiff mentions Wiesner v. Fontaine Trailer Co., No. 06-CV-6239, 2010 U.S. Dist. LEXIS 81672, 2010 WL 3023398 (N.D. Ill. 2010), an unreported case discussed in defendant’s motion for summary judgment. However, we will not cite an unreported case. State Farm Mutual Automobile Insurance Co. v. Progressive Northern Insurance Co., 2015 IL App (1st) 140447, ¶ 101, 391 Ill. Dec. 170, 30 N.E.3d 440 (“We will not cite an unreported case.”); Skokie Castings, Inc. v. Illinois Insurance Guaranty Fund, 2012 IL App (1st) 111533, ¶ 15, 964 N.E.2d 1225, 358 Ill. Dec. 203 (“an unreported case” is “not binding on any court”); People v. Moore, 243 Ill. App. 3d 583, 584, 611 N.E.2d 1246, 183 Ill. Dec. 598 (1993) (“the decision was unreported and of no precedential value”). “Unreported decisions have no precedential value, and this is even more true for decisions from foreign jurisdictions.” American Family Mutual Insurance Co. v. Plunkett, 2014 IL App (1st) 131631 ¶ 38, 383 Ill. Dec. 393, 14 N.E.3d 676; Burnette v. Stroger, 389 Ill. App. 3d 321, 329, 905 N.E.2d 939, 329 Ill. Dec. 101 (2009); West American Insurance Co. v. J.R. Construction Co., 334 Ill. App. 3d 75, 82, 777 N.E.2d 610, 267 Ill. Dec. 807 (2002) (a “foreign, unreported decision” is of no precedential value”). Specifically, with respect to unpublished federal cases, this court has held that they do not carry any authority before an Illinois court. Lyons v. Ryan, 324 Ill. App. 3d 1094, 1107 n.11, 756 N.E.2d 396, 258 Ill. Dec. 414 (2001) (“unreported federal court orders” are not “any kind of authority before an Illinois court”); Sompolski v. Miller, 239 Ill. App. 3d 1087, 1093, 608 N.E.2d 54, 180 Ill. Dec. 932 (1992) (“we decline” to follow “an unreported Federal district court decision”).
[*P72] V. No Prima Facie Case
[*P73] However, even if plaintiff did not waive her claims regarding summary judgment, [**33] plaintiff still could not prove a prima facie case without the allegedly defective snow tube. The facts in Shramek v. General Motors Corp., 69 Ill. App. 2d 72, 216 N.E.2d 244 (1966), cited by defendant, are similar to the present case. In Shramek, the plaintiff was injured when the automobile in which he was riding crashed after one of the tires suffered a blowout. Shramek, 69 Ill. App. 2d at 74. He filed both a negligence claim and a breach of implied warranty claim against the tire and auto manufacturers claiming a defect was in the tire at the time it left the control of the manufacturer or seller. Shramek, 69 Ill. App. 2d at 75. The tire, however, was never examined for a defect and could not be located. Shramek, 69 Ill. App. 2d at 78. The trial court granted the automobile and tire manufacturers’ motions for summary judgment, and this court affirmed. Shramek, 69 Ill. App. 2d at 77. The appellate court held that summary judgment was required because the record conclusively demonstrated that the plaintiff could not prove, either by direct or circumstantial evidence, that the accident was caused by a defective tire. Shramek, 69 Ill. App. 2d at 77. The court noted that the mere occurrence of a blowout does not establish a manufacturer’s negligence or that the tire was defective, since blowouts can be attributed to a myriad of causes. Shramek, 69 Ill. App. 2d at 78. The court stated:
“[A]side from a superficial inspection of the damaged car [**34] and tire after the accident by plaintiff and his cousin, the tire in question was never subjected to an examination which would reveal that the blowout was due to a pre-existing defect. Thus, without any examination of the tire designed to elicit the cause of the blowout and without the tire itself or any hope or expectation for its recovery, plaintiff could never prove, directly or inferentially, a case of negligence, breach of warranty or strict liability.” Shramek, 69 Ill. App. 2d at 78.
[*P74] The reasoning in Shramek has been cited with approval and applied in other cases (E.g., Scott v. Fruehauf Corp. 602 F. Supp. 207, 209 (S.D. Ill. 1985); Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 874, 604 N.E.2d 948, 178 Ill. Dec. 425 (1992); Phillips v. U.S. Waco Corp., 163 Ill. App. 3d 410, 417, 516 N.E.2d 670, 114 Ill. Dec. 515 (1987) (discussing and applying Shramek)). In Scott, the plaintiff sued a tire rim manufacturer and distributor, alleging he was injured while working on a tire rim. Scott, 602 F. Supp. at 208. As in Shramek, the allegedly defective product was unavailable. Scott, 602 F. Supp. at 209. The court held that, because the plaintiff could not produce the rim, he “could never prove his case” and, therefore, summary judgment was proper. Scott, 602 F. Supp. at 209. The Scott case held this, even though there were photographs of the rim. Scott, 602 F. Supp. at 209. However, the court found that even photographs were insufficient because the rim had never been examined by a qualified expert and was never made available to the defendant. Scott, 602 F. Supp. at 209. In the case at [**35] bar, plaintiff does not even have photographs of the tube, and the tube was certainly never examined by an expert or made available to defendant. Thus, pursuant to the reasoning of both Shramek and Scott, summary judgment was warranted.
[*P75] Similarly, in Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 872-73, 604 N.E.2d 948, 178 Ill. Dec. 425 (1992), the plaintiff brought a negligence and product liability action against defendant for improper installation of a tire and inner tube. The inner tube was unavailable and the plaintiff’s expert never examined the inner tube or took photographs of it. Sanchez, 237 Ill. App. 3d at 873. In affirming summary judgment, the appellate court held that the cause of the incident could only be left to speculation because the expert’s testimony indicated nothing more than a mere possibility that the inner tube was improperly installed. Sanchez, 237 Ill. App. 3d at 874; see also Scott, 602 F. Supp. at 209 (“the very fact that other factors could have caused the injury warranted granting of summary judgment motions since without the alleged[ly] defective product the plaintiff could never prove up his case”). Similarly, in the case at bar, without the tube, the cause of the incident could only be left to speculation.
[*P76] Lastly, in Phillips v. United States Waco Corp., 163 Ill. App. 3d 410, 417, 516 N.E.2d 670, 114 Ill. Dec. 515 (1987), the plaintiff brought a negligence and strict products liability claim against defendant for personal injuries he sustained [**36] when he fell from a scaffold manufactured by the defendant. As in Shramek, the plaintiff failed to produce the allegedly defective product involved in the accident or any photographs of it. Phillips, 163 Ill. App. 3d at 415. And as in Scott, the plaintiff failed to provide any expert testimony regarding the alleged defect in the product. Phillips, 163 Ill. App. 3d at 415. In affirming summary judgment, this court held that the plaintiff failed to present facts to support the elements of his products liability claims based in negligence and strict liability. Phillips, 163 Ill. App. 3d at 418. This court reasoned that, because the scaffold was never examined for the presence of preexisting defects, the plaintiff “could never prove, either by direct or circumstantial evidence, that the accident was caused by a defective scaffold, since he did not and could not produce the scaffold.” Phillips, 163 Ill. App. 3d at 418.
[*P77] Similar to the plaintiff in Phillips, plaintiff in this case did not and cannot produce the allegedly defective product involved in her accident. The subject snow tube was never retrieved or examined for defects. Plaintiff also has not produced any photographs of the snow tube itself or provided testimony by an eyewitness to the accident or its aftermath, other than plaintiff herself. Plaintiff testified [**37] that all of the photographs she took on the day of the accident were of different snow tubes in use at Villa Olivia and not of the tube involved in her accident. Plaintiff testified that the last time she saw the tube was when she left it with the Villa Olivia employees when she walked inside with the paramedic to report the accident. Plaintiff also testified that her basis for believing that defendant manufactured the tube in her accident was that she saw a different tube that had writing on it that said defendant’s name. She testified that a photograph of a snow tube used by her son showed a red colored tube, but did not indicate the manufacturer’s name on it. Without the snow tube itself or any examination of it, plaintiff cannot establish or raise a genuine issue of material fact that defendant was the manufacturer. Without the snow tube itself or any photographs of it, or an examination of the snow tube to determine if the accident was a result of a preexisting defect, plaintiff cannot prove a prima facie products liability case against defendant.
[*P78] Therefore, for the reasons stated above, we cannot find that the trial court erred in granting summary judgment in favor of defendant. [**38] Outboard Marine Corp., 154 Ill. 2d at 102 (discussing when summary judgment should be granted).
[*P79] CONCLUSION
[*P80] On appeal, plaintiff argues that the trial erred in granting summary judgment because there is a genuine issue of material fact as to whether defendant was the manufacturer of the snow tube that injured her. For the foregoing reasons, we conclude that plaintiff failed to present sufficient evidence to raise a genuine issue of material fact as to the manufacturer of the snow tube and thus the trial court did not err in granting summary judgment in favor of defendant.
[*P81] Affirmed.
Johnson v. Recreational Equipment, Inc., 2011 Wash. App. LEXIS 351
Posted: March 21, 2011 Filed under: Cycling, Legal Case, Washington | Tags: bicycle, Carbon Fiber, Cycling, Defect, Defective Product, Front Fork, Products Liability Leave a commentJohnson v. Recreational Equipment, Inc., 2011 Wash. App. LEXIS 351
Monika Johnson, Respondent, v. Recreational Equipment, Inc., Petitioner.
No. 65463-2-I
Court of Appeals of Washington, Division One
2011 Wash. App. LEXIS 351
January 6, 2011, Oral Argument
February 7, 2011, Filed
PRIOR HISTORY: [*1]
Appeal from King County Superior Court. Docket No: 09-2-14346-3. Judgment or order under review. Date filed: 05/10/2010. Judge signing: Honorable Steven C Gonzalez.
DISPOSITION: Affirmed.
SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: Action for damages for injuries sustained while riding a bicycle. The plaintiff brought the action as a product liability claim against the seller of the bicycle. The plaintiff alleged that her injuries were caused by a defect in the carbon fiber front fork of the bicycle. Both the bicycle and the carbon fiber fork, although not manufactured by the defendant, were marketed under the defendant’s brand name.
Nature of Action: Action for damages for injuries sustained while riding a bicycle. The plaintiff brought the action as a product liability claim against the seller of the bicycle. The plaintiff alleged that her injuries were caused by a defect in the carbon fiber front fork of the bicycle. Both the bicycle and the carbon fiber fork, although not manufactured by the defendant, were marketed under the defendant’s brand name.
Superior Court: The Superior Court for King County, No. 09-2-14346-3, Steven C. Gonzalez, J., on May 10, 2010, denied the defendant’s motion to be permitted to seek to have the jury allocate fault to the manufacturer of the carbon fiber fork and granted the plaintiff’s motion for summary judgment on the issue of strict liability.
Court of Appeals: Holding that the defendant’s statutory vicarious liability for the manufacturing defect precludes a right to have fault allocated to the manufacturer and that the factual averments in the record were sufficient for the trial court to rule on the issue of strict liability as a matter of law, the court affirms the trial court’s rulings.
HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES
[1] Statutes — Construction — Review — Standard of Review. Questions of statutory interpretation are reviewed de novo.
[2] Statutes — Construction — Legislative Intent — In General. A court’s primary duty in interpreting a statute is to implement legislative intent.
[3] Statutes — Construction — Unambiguous Language — Statutory Language — In General. The meaning of an unambiguous statute is derived from the statute’s plain language.
[4] Statutes — Construction — Superfluous Provisions. A statute must be construed so that no provision is rendered meaningless or superfluous.
[5] Products Liability — Defect — Seller Liability — Own Brand Product — Statutory Provisions — Nature of Liability — Vicarious Liability. RCW 7.72.040(2)(e) holds a product seller liable for a manufacturing defect in a product marketed under the product sellers’s own trade name or brand name even though the manufacturer necessarily is the entity that actually caused the defect. The statute creates a form of vicarious liability that enables a claimant injured by a defectively manufactured product to recover fully from the product seller where the seller branded the product as its own.
[6] Statutes — Construction — Meaningful Interpretation — In General. Because a court assumes that the legislature does not engage in meaningless acts, a statute should not be construed as if the legislature has.
[7] Statutes — Repeal — By Implication — Disfavored Status. Implied repeals of statutes are disfavored; courts have a duty to interpret statutes so as to give them effect.
[8] Products Liability — Defect — Seller Liability — Own Brand Product — Allocation of Fault — To Manufacturer — In General. A product seller that is subject to vicarious liability for a manufacturing defect in a product under RCW 7.72.040(2)(e) because the product is marketed under the product sellers’s own trade name or brand name does not have a right to an allocation of fault to the manufacturer on the same manufacturing defect claim. This rule is not inconsistent with the law of comparative fault as set forth in chapter 4.22 RCW because RCW 7.72.040(2)(e) provides that the seller’s proportionate amount of damages is the full amount of damages, in which case no apportionment of fault is necessary to ensure that the seller pays only its share of damages.
[9] Products Liability — Defect — Seller Liability — Own Brand Product — Allocation of Fault — Private Contract. The rule of RCW 7.72.040(2)(e) that a product seller can be vicariously liable for a manufacturing defect in a product marketed under the product seller’s own trade name or brand name suggests a legislative intent to leave to the marketplace the means of allocating risk between commercial entities. The Washington Product Liability Act (ch. 7.72 RCW) presupposes a contractual relationship between the product seller and the manufacturer, with or without an intermediary supplier, and, rather than legislatively imposing a means of risk allocation, assumes that sophisticated commercial parties will contract to allocate risk between themselves.
[10] Judgment — Summary Judgment — Burden on Moving Party — Absence of Factual Issue. In a summary judgment proceeding, the party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact.
[11] Judgment — Summary Judgment — Determination — Single Conclusion From Evidence. Summary judgment is appropriate if reasonable persons could reach only one conclusion from the facts submitted.
[12] Judgment — Summary Judgment — Issues of Fact — Material Fact — What Constitutes. For purposes of a summary judgment proceeding, a material fact is a fact on which the outcome of the litigation depends, in whole or in part.
[13] Judgment — Summary Judgment — Affidavits — Sufficiency — Evidentiary Facts. An affidavit submitted in response to a motion for summary judgment does not raise a genuine issue of fact unless it sets forth facts that are evidentiary in nature, i.e., information as to what took place–an act, an incident, a reality–as distinguished from supposition or opinion. Ultimate facts, conclusions of fact, and conclusory statements of fact or legal conclusions are insufficient to raise a question of fact.
[14] Products Liability — Defect — Strict Liability — Manufacturing Defect — Deviation From Manufacturer’s Specifications or Standards — Proof — Expert Testimony — Sufficiency. In a strict liability product liability action alleging that a product was not reasonably safe in construction, where the manufacturing defect is such that no conceivable performance standard would call for the product to be manufactured that way, expert testimony that such defect caused the product’s failure can be sufficient to establish that the product deviated in some material way from the manufacturer’s design specifications or performance standards, or deviated in some material way from otherwise identical units of the same product line, within the meaning of RCW 7.72.030(2)(a). Direct evidence of the manufacturer’s design specifications or performance standards is not required in this situation.
[15] Judgment — Summary Judgment — Burden on Nonmoving Party — Averment of Specific Facts — Speculation. A party opposing a motion for summary judgment cannot rely on speculation and conjecture to raise a genuine issue of material fact.
[16] Trial — Bifurcation of Issues — Review — Standard of Review. A trial court’s decision to order separate trials is reviewed for abuse of discretion.
[17] Products Liability — Defect — Seller Liability — Own Brand Product — Contribution — Third Party Action — Against Manufacturer — Bifurcation of Trial. In a product liability action alleging that a product seller is vicariously liable for a manufacturing defect in a product marketed under the product seller’s own trade name or brand name, the trial court may properly rule that any contribution claim by the seller against the product’s manufacturer must be tried separately because joining the manufacturer as a third party defendant would delay and prejudice the plaintiff’s claim against the seller. The trial court may properly bifurcate the claims despite negative consequences for the seller’s contribution rights.
COUNSEL: V.L. Woolston and Paul S. Graves (of Perkins Coie LLP), for petitioner.
Robert L. Christie, Jason M. Rosen, and Thomas P. Miller (of Christie Law Group PLLC), for respondent.
JUDGES: AUTHOR: Stephen J. Dwyer, C.J. We concur: Michael S. Spearman, J., C. Kenneth Grosse, J.
OPINION BY: Stephen J. Dwyer
OPINION
¶1 Dwyer, C.J. — [HN1] The Washington product liability act (WPLA), chapter 7.72 RCW, sets forth a statutory form of vicarious liability whereby a product seller assumes the liability of a manufacturer where a product is marketed under the seller’s brand name. Because permitting the product seller to attribute fault to the actual manufacturer would abrogate this provision of the WPLA, principles of comparative fault do not apply, notwithstanding the possibility that statutory contribution may thereby be precluded. Such a result is not in contravention of our state’s statutory comparative fault system, as commercial entities [*2] can themselves contract to allocate liability where the WPLA’s vicarious liability provision applies.
¶2 Accordingly, we affirm the trial court’s ruling that Recreational Equipment, Inc. (REI) is not entitled to seek to allocate fault to the manufacturer of the defective product that REI branded as its own. We also conclude that the trial court erred neither by finding REI strictly liable for the injuries caused by the defective product nor by ruling that any third party claim by REI against the manufacturer would be severed for trial.
I
¶3 In November 2007, Monika Johnson was riding her bicycle along a downtown Seattle sidewalk when the front carbon fiber fork of the bicycle, which attaches the bicycle’s front wheel to its frame, “sheared from the steer tube suddenly and without warning.” Clerk’s Papers (CP) at 57. The fork and front wheel detached from the frame of the bicycle, and Johnson fell face first onto the sidewalk, sustaining serious injuries.
¶4 Johnson brought an action against REI pursuant to the WPLA, alleging that her injuries were caused by a defect in the carbon fiber fork. Both the bicycle and the carbon fiber fork, although not manufactured by REI, were marketed under REI’s [*3] brand name, Novara. Johnson had purchased the Novara brand bicycle from REI in 2002. In 2005, she had taken the bicycle to REI for repairs following a collision with a car door. The Novara carbon fiber fork that fractured in November 2007 was installed on the bicycle during those 2005 repairs.
¶5 Johnson did not name the manufacturer of the fork, Aprebic Industry Company, Ltd., as a defendant in the action. REI filed a motion for partial summary judgment, seeking a ruling that it was entitled to ask the jury to allocate fault to Aprebic pursuant to Washington’s comparative fault system, set forth in chapter 4.22 RCW, or, in the alternative, requesting leave to file a third party complaint against Aprebic. In response, Johnson filed a motion for partial summary judgment, asserting that REI was strictly liable for her injuries.
¶6 In support of her summary judgment motion, Johnson submitted to the trial court the declaration of Gerald Zaminski, a professional engineer, who examined the bicycle and the carbon fiber fork and destructively tested the fork. He found that the section of the fork where the fracture occurred “was manufactured using a relatively small number of [carbon fiber] layers.” [*4] CP at 106. He concluded that “[t]he small number of carbon fiber layers and their orientation interface resulted in the nucleation and propagation of cracking” and that this cracking “led to the catastrophic fracture and failure of the fork.” CP at 106. According to Zaminski, the thickness of the carbon fiber layering where the fracture occurred was “just a fraction of the thickness of the carbon fiber layup elsewhere in the fork and steerer tube.” CP at 106. He stated that the carbon fiber layers also “displayed voids, gaps, separations, and kinks, which are all indicative of defective manufacturing.” CP at 106. Zaminski also observed that the carbon fiber layers at the point of the fracture were “starved of epoxy,” making them “more susceptible to failure.” CP at 107. Zaminski declared that “[t]he orientation and makeup of the carbon fiber layers can only occur during manufacturing; they are not defects that can occur after the product has been manufactured.” CP at 107.
¶7 In response, REI submitted the declaration of David Mitchell, also a professional engineer, who inspected the bicycle and carbon fiber fork. Mitchell asserted that “there is presently insufficient information to rule [*5] out the accumulation of prior damage to the front fork as the cause of ultimate fork separation.” CP at 178. He stated that “the nature of the fracture was not determined” and that additional laboratory testing should be conducted, including loading an examplar fork to determine its breaking strength. CP at 177. He also noted that the bicycle itself was “clearly a high mileage vehicle” that displayed “substantial wear and tear.” CP at 176. Mitchell further suggested that a 2006 collision involving the bicycle, in which the rear wheel was damaged, could have contributed to the fork’s fracture. He opined that “[i]f an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.” CP at 178.
¶8 The trial court denied REI’s motion to be permitted to seek to have the jury allocate fault to Aprebic and granted Johnson’s motion for summary judgment on the issue of strict liability. The trial court ruled that “[d]efendant REI has the liability of a ‘manufacturer’ as set forth in RCW 7.72.040(2)(e) and is strictly liable as a matter of law for all damages and injuries that [*6] plaintiff sustained.” 1 CP at 196. The trial court further determined that the fact that Aprebic is the actual manufacturer of the fork has no bearing on REI’s liability to Johnson, as “REI has the same liability as the actual manufacturer.” CP at 196. The trial court concluded that Johnson could look to REI exclusively for compensation for her injuries. Although the trial court denied REI’s request to attribute fault to Aprebic, it did grant to REI leave to join Aprebic as a third party defendant. However, the trial court noted that if REI did so, the court would “require separate trials under CR 20(b) to prevent delay and prejudice to [Johnson].” CP at 198.
1 The trial court noted that its ruling would not “preclude REI from asserting that [Johnson] was contributorily negligent if any facts to support this are developed.” CP at 196.
¶9 REI sought discretionary review of the trial court’s rulings. A commissioner of this court granted discretionary review of the trial court’s rulings on three issues: (1) whether comparative fault principles apply to Johnson’s claims, (2) whether REI is strictly liable for Johnson’s injuries, and (3) whether any third party claim brought by REI against Aprebic [*7] should be severed for trial.
II
¶10 REI first contends that the statutory comparative fault system adopted by our legislature in 1986 demands that it be permitted to ask the jury to allocate fault to Aprebic for the fork’s manufacturing defect. Because the WPLA expressly provides that REI, by selling the defective product under its own brand name, assumes the liability of the manufacturer, we disagree.
[1] ¶11 [HN2] Questions of statutory interpretation are reviewed de novo. Happy Bunch, LLC v. Grandview N., LLC, 142 Wn. App. 81, 88, 173 P.3d 959 (2007). Whether the WPLA permits a product seller that brands a defective product as its own to attribute fault to the actual manufacturer is a question of statutory interpretation; thus, we review the question de novo.
[2-4] ¶12 [HN3] Our primary duty in interpreting a statute is to discern and implement legislative intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Where a statute is unambiguous, we derive its meaning from the plain language of the statute. Campbell & Gwinn, 146 Wn.2d at 9-10. Moreover, we must construe statutes such that no provision is rendered meaningless or superfluous. Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996).
¶13 [HN4] In [*8] 1981, our legislature codified the law of product liability by enacting the Washington product liability act (WPLA), chapter 7.72 RCW. The WPLA distinguishes between and imposes different standards of liability on manufacturers and product sellers for harm caused by defective products. See RCW 7.72.030, .040. As a general rule, manufacturers of defective products are held to a higher standard of liability, including strict liability where injury is caused by a manufacturing defect or a breach of warranty. RCW 7.72.030(2). 2 In contrast, product sellers are ordinarily liable only for negligence, breach of express warranty, or intentional misrepresentation. RCW 7.72.040(1). In limited circumstances, however, product sellers are subject to “the liability of a manufacturer,” including where “[t]he product was marketed under a trade name or brand name of the product seller.” RCW 7.72.040(2), (2)(e). 3
2 RCW 7.72.030(2) provides, in pertinent part:
[HN5] (2) A product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s [*9] express warranty or to the implied warranties under Title 62A RCW.
(a) A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.
3 The limited circumstances in which a product seller assumes the liability of a manufacturer are set forth in RCW 7.70.040(2), which provides:
[HN6] (2) A product seller, other than a manufacturer, shall have the liability of a manufacturer to the claimant if:
(a) No solvent manufacturer who would be liable to the claimant is subject to service of process under the laws of the claimant’s domicile or the state of Washington; or
(b) The court determines that it is highly probable that the claimant would be unable to enforce a judgment against any manufacturer; or
(c) The product seller is a controlled subsidiary of a manufacturer, or the manufacturer is a controlled subsidiary of the product seller; or
(d) The product seller provided the plans or specifications for the manufacture or preparation of the product and such [*10] plans or specifications were a proximate cause of the defect in the product; or
(e) The product was marketed under a trade name or brand name of the product seller.
[5-9] ¶14 [HN7] The WPLA explicitly provides that “[a] product seller, other than a manufacturer, [has] the liability of a manufacturer” where “[t]he product was marketed under a trade name or brand name of the product seller.” RCW 7.72.040(2), (2)(e). Although, absent this provision, only a manufacturer could be held liable for a manufacturing defect, RCW 7.72.030(2), our legislature has chosen to hold particular product sellers liable for such acts–despite the fact that the manufacturer of the product is necessarily the entity that actually caused the defect where a product is defectively manufactured.
¶15 Thus, [HN8] by imposing liability on sellers of branded products for manufacturing defects–which, inevitably, are caused by acts of the manufacturer–our legislature created a statutory form of vicarious liability that enables the claimant injured by a defectively manufactured product to recover fully from the product seller where the seller branded the product as its own. See 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law & [*11] Practice, § 3.1, at 116 (3d ed. 2006) (“In contrast to direct liability, which is liability for breach of one’s own duty of care, vicarious liability is liability for the breach of someone else’s duty of care.”). Because a seller of a branded product is vicariously liable for manufacturing defects, permitting REI–the product seller liable as the manufacturer pursuant to RCW 7.72.040(2)(e)–to seek to allocate fault to Aprebic–the actual manufacturer of the defective product–would undermine the statutory scheme of the WPLA.
¶16 REI incorrectly contends that RCW 7.72.040(2)(e), rather than creating a statutory form of vicarious liability, instead merely imposes on sellers of branded products the liability standard to which manufacturers are held. Thus, according to REI, although product sellers are ordinarily liable only for negligence, breach of an express warranty, or intentional misrepresentation, pursuant to RCW 7.72.040(1), sellers of branded products may also be found liable, pursuant to RCW 7.72.040(2)(e), for design and construction defects, inadequate warnings, or breach of an implied warranty–acts for which generally only manufacturers are held liable. See RCW 7.72.030(1), (2). For [*12] this reason, REI argues that it should be permitted to attribute fault to Aprebic. This contention fails for two reasons.
¶17 First, [HN9] had our legislature merely imposed on sellers of branded products the liability standard of manufacturers, as REI contends that it did, the legislature would have engaged in a meaningless act. RCW 7.72.030(2) provides that “[a] product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction.” The statute defines a manufacturer as “a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product … before its sale to a user or consumer.” RCW 7.72.010(2). Here, REI, because it does not design, make, fabricate, construct, or remanufacture bicycle forks, could never be found by a trier of fact to have acted as an actual manufacturer. Thus, it could never be proved to have acted in such a way so as to expose it to direct liability as a manufacturer. Indeed, were it otherwise, the legislature would not have needed to enact RCW 7.72.040(2)(e)–by acting as a manufacturer, REI would be subject to direct [*13] manufacturer liability pursuant to RCW 7.72.030(2), rendering RCW 7.72.040(2)(e) superfluous. We will not assume that the legislature, by enacting RCW 7.72.040(2)(e), engaged in a meaningless act. See JJR Inc. v. City of Seattle, 126 Wn.2d 1, 10, 891 P.2d 720 (1995) (“When interpreting statutes, the court must assume that the Legislature does not engage in meaningless acts.”).
¶18 Similarly, [HN10] construing RCW 7.72.040(2)(e) such that a product seller could seek to allocate fault to a manufacturer would render the provision itself meaningless, as the product seller could always avoid the allocation of any fault to it simply by attributing fault to the actual manufacturer. See Whatcom County, 128 Wn.2d. at 546 (noting that statutes must be construed such that all language is given effect and no provision in rendered meaningless or superfluous). Certainly, as a factual matter, where a manufacturing defect is at issue, the manufacturer–not the product seller–actually caused the defect. Thus, were allocation of fault principles to apply, the manufacturer would necessarily be 100 percent responsible for the defectively manufactured product. Also necessarily, the product seller would avoid all such [*14] liability. Such a result would contravene our legislature’s clear intent that a product seller that brands a product as its own assumes the liability of the manufacturer. 4
4 The legislative history of the WPLA includes a statement that [HN11] where the nonmanufacturing product seller “adopts the product as its own, [it] has, in a sense, waived [its] right to immunity and should be subject[ed] to a manufacturer’s liability.” Senate Journal, 47th Leg., Reg. Sess., at 625 (Wash. 1981).
¶19 [HN12] Although RCW 7.72.040(2)(e) does not permit the product seller to seek to allocate fault to the manufacturer, this provision is not inconsistent with Washington’s comparative fault system, set forth in chapter 4.22 RCW. REI argues to the contrary, contending that our legislature, by adopting comparative fault as the general rule for tort liability, endorsed the principle that “every entity responsible for committing a tort should be liable to the plaintiff based on its own individual share of the total fault, no more and no less.” Br. of Pet’r at 16. This overly broad assertion assumes that, by enacting RCW 4.22.070, our legislature eliminated vicarious liability, which it expressly did not do. Indeed, this specific [*15] statute itself explicitly retains principles of common law vicarious liability, in that it provides that “[a] party shall be responsible for the fault of another … where both were acting in concert or when a person was acting as an agent or servant of the party.” RCW 4.22.070(1)(a). Similarly, the WPLA provision at issue here is a statutory imposition of vicarious liability wherein the seller of a branded product is held liable for the actions of the manufacturer, notwithstanding that the product seller did not actually manufacture the defective product.
¶20 Permitting REI to attribute fault to Aprebic would effectively abrogate RCW 7.72.040(2)(e), as the product seller would never assume the liability that the legislature intended the seller to bear where the seller brands the product as its own. [HN13] “Authority is legion that implied repeals of statutes are disfavored and courts have a duty to interpret statutes so as to give them effect.” Bellevue Sch. Dist. No. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 122, 691 P.2d 178 (1984). Because the WPLA and our state’s statutory comparative fault system can be reconciled, we will not hold that our legislature intended, by passing the tort reform [*16] act of 1986, to impliedly repeal RCW 7.72.040(2)(e). See Bellevue Sch. Dist., 103 Wn.2d at 123 (“Repeals by implication are not favored and will not be found to exist where earlier and later statutes may logically stand side by side and be held valid.”). We are loathe to find a silent repeal, and we decline to do so here.
¶21 Moreover, [HN14] the fact that a product seller such as REI is not permitted to seek to allocate fault to the product manufacturer does not suggest an oversight by the legislature. Rather, it suggests a legislative intent to leave to the marketplace the means of allocating risk between commercial entities. The WPLA presupposes a contractual relationship between the product seller and the manufacturer, with or without an intermediary supplier, and, rather than legislatively imposing a means of risk allocation, assumes that sophisticated commercial parties will contract to allocate risk between themselves. Were we to hold that the WPLA permits REI to attribute fault to Aprebic, we would not only be acting in contradiction to the legislature’s clear intent–we would also be upsetting three decades of reliance on a statute that allows product sellers and manufacturers to themselves [*17] determine how best to allocate risk.
¶22 REI incorrectly asserts that Washington case law requires that it be permitted to attribute fault to Aprebic. REI cites Hiner v. Bridgestone/Firestone, Inc., 138 Wn.2d 248, 978 P.2d 505 (1999), for the proposition that comparative fault principles apply in all product liability cases. The plaintiff therein, a motorist injured in a collision, brought a product liability suit against the manufacturer of the snow tires that had been installed only on the vehicle’s front wheels. Hiner, 138 Wn.2d at 251. The snow tire manufacturer raised the affirmative defense of entity liability, “arguing that liability should be shared by the installer of the studded snow tires, the manufacturer of the Goodyear tires on the rear wheels, and the manufacturer of the Hyundai automobile.” Hiner, 138 Wn.2d at 259.
¶23 The Court of Appeals affirmed the trial court’s dismissal of the affirmative defense, reasoning that the comparative fault statute permitted a defendant manufacturer to apportion fault only to those entities liable to the plaintiff pursuant to the WPLA. Hiner v. Bridgestone/Firestone, Inc., 91 Wn. App. 722, 736, 959 P.2d 1158 (1998). Our Supreme Court reversed, [*18] holding that “[t]he plain language of the contributory fault statute does not limit apportioning fault only to other manufacturers and product sellers in a product liability case.” Hiner, 138 Wn.2d at 264. The court based its reasoning on the broad definition of “fault” set forth in Washington’s comparative fault statute, which states that “fault” includes “acts or omissions … that subject a person to strict tort liability or liability on a product liability claim.” RCW 4.22.015.
¶24 The Hiner decision is inapposite. In Hiner, the manufacturer of the snow tires sought to attribute fault to other entities that, if found to be at fault, would be liable pursuant to theories of liability different than the theory of liability pursuant to which the manufacturer was liable. Here, REI contends that it should be permitted to attribute fault to another entity that, if found to be at fault, would be liable pursuant to precisely the same theory of liability–“the liability of a manufacturer”–as that of REI. REI, which pursuant to the WPLA has the liability of the manufacturer, seeks to attribute fault to Aprebic based on the theory that Aprebic is the actual manufacturer. Because REI is vicariously [*19] liable for Aprebic’s acts, the basis of both entities’ alleged liability is the same. Put another way, in Hiner the fault sought to be allocated was not the same fault. In Hiner, the fault sought to be allocated resulted from different acts; here, the fault sought to be allocated arises from the same acts. Hiner is not inconsistent with the decision we reach today. 5
5 Similarly, the decision in Lundberg v. All-Pure Chemical Co., 55 Wn. App. 181, 777 P.2d 15 (1989), does not apply here. The court therein determined that the jury could be instructed on the plaintiff’s alleged comparative negligence in a product liability action, notwithstanding that the plaintiff’s claim alleged strict liability. Lundberg, 55 Wn. App. at 186-87. Finding that the legislature intended the comparative fault doctrine to apply to all actions based on fault, including strict liability and product liability claims, the court held that there is “no reason to distinguish between negligence and strict liability actions for purposes of instructing a jury on the plaintiff’s comparative fault.” Lundberg, 55 Wn. App. at 186. Johnson’s comparative fault is not at issue. Rather, the issue here is whether fault can be [*20] attributed to another entity where that entity is liable on the same basis and based on the same facts as is the defendant seeking to attribute fault and where permitting the defendant to attribute fault would contravene the purpose of the relevant statute.
¶25 Moreover, [HN15] the purpose of the comparative fault statute is “that fault be apportioned and … an entity be required to pay that entity’s proportionate share of damages only.” Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 294, 840 P.2d 860 (1992). Pursuant to RCW 7.72.040(2)(e), REI’s proportionate share of damages is the full amount of damages. Thus, unlike in Hiner, no apportionment of fault is necessary to ensure that the defendant pays only its share of damages.
¶26 Applicable case law further undermines REI’s assertion that it should be permitted to attribute fault to Aprebic. In Farmers Insurance Co. of Washington v. Waxman Industries, Inc., 132 Wn. App. 142, 148, 130 P.3d 874 (2006), we reversed vacation of a default judgment holding Waxman strictly liable as the “manufacturer” of a defective water supply line that was sold under the Waxman trade name. Waxman’s motion to vacate stated that “defects in hoses ‘often’ can be attributed [*21] to component parts of the hose manufactured by some other entity.” Waxman, 132 Wn. App. at 146. Waxman further contended that it did not manufacture the allegedly defective water supply line. Waxman, 132 Wn. App. at 146.
¶27 We held that Waxman’s evidence was insufficient to support a meritorious defense as required for vacation of a default judgment. Waxman, 132 Wn. App. at 145. Given that [HN16] a product seller that brands a product under its trade name is subject to the liability of the manufacturer pursuant to RCW 7.72.040(2)(e), we concluded that “[t]he materials submitted by Waxman do not explain how Waxman could avoid a finding of liability simply by proving that some other entity actually manufactured the supply line.” Waxman, 132 Wn. App. at 147. Furthermore, we determined that “whatever right of indemnity and contribution Waxman may be able to establish against other entities is not a defense to Waxman’s own liability.” Waxman, 132 Wn. App. at 148. The principles we set forth in Waxman support the conclusion that REI may not seek to allocate fault to Aprebic, the manufacturer, where it assumed the liability of the manufacturer.
¶28 [HN17] RCW 7.72.040(2)(e) creates a statutory form of vicarious [*22] liability whereby the seller of a branded product assumes the liability of the manufacturer. Because permitting such a product seller to seek to allocate fault to the actual manufacturer pursuant to comparative fault principles would undermine our legislature’s intent in enacting this statutory provision, the trial court did not err by concluding that REI could not seek to allocate fault to Aprebic.
III
¶29 REI next contends that the trial court erred by concluding that REI is strictly liable for Johnson’s injuries. Specifically, REI asserts that the trial court erred by resolving issues of material fact in favor of Johnson and by finding that the alleged manufacturing defects were the cause of her injuries. We disagree.
[10, 11] ¶30 [HN18] “In reviewing a summary judgment order, the appellate court evaluates the matter de novo, performing the same inquiry as the trial court.” Snohomish County v. Rugg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and … the moving party is entitled to a judgment as a matter of law.” CR 56(c). The moving party bears the burden of demonstrating that there is no genuine issue as to any [*23] material fact. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979). All reasonable inferences must be considered in the light most favorable to the nonmoving party, and summary judgment may be granted only if a reasonable person could reach but one conclusion. Rugg, 115 Wn. App. at 224.
[12, 13] ¶31 [HN19] A material fact ” ‘is a fact upon which the outcome of the litigation depends, in whole or in part.’ ” Lamon, 91 Wn.2d at 349 (quoting Morris v. McNicol, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974)). An affidavit submitted in support of or in response to a motion for summary judgment “does not raise a genuine issue of fact unless it sets forth facts evidentiary in nature, i.e., information as to what took place, an act, an incident, a reality as distinguished from supposition or opinion.” Rugg, 115 Wn. App. at 224. “[U]ltimate facts, conclusions of fact, conclusory statements of fact or legal conclusions are insufficient to raise a question of fact.” Rugg, 115 Wn. App. at 224.
[14] ¶32 The WPLA provides that “[a] product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction.” RCW 7.72.030(2).
A [*24] product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.
RCW 7.72.030(2)(a).
¶33 REI first contends that, because the statutory definition of a manufacturing defect requires that the product deviate from the manufacturer’s design specifications or performance standards, Johnson cannot prove that the bicycle’s fork contained a manufacturing defect without submitting to the court direct evidence of Aprebic’s design specifications or performance standards. REI asserts that “there is no evidence in the record to establish that the fork at issue deviated from Aprebic’s design standards.” Br. of Pet’r at 34. To the contrary, Johnson submitted to the trial court evidence–in the form of Zaminski’s declaration–that the fork fractured due to insufficient carbon fiber layering. This evidence itself supports the conclusion that the fork “deviated in some material way from the design specifications or performance standards of the manufacturer,” RCW 7.72.030(2)(a), [*25] as no conceivable performance standard would call for the manufacture of a carbon fiber fork that fractures as Johnson’s did. Although [HN20] on summary judgment all reasonable inferences must be drawn in favor of the nonmoving party, Rugg, 115 Wn. App. at 224, no reasonable inference can be drawn that a carbon fiber fork that fractures in this way performed in accordance with any manufacturer’s performance standards. 6
6 Moreover, [HN21] the purpose of holding sellers of branded products vicariously liable for manufacturing defects would be undermined were we to require the claimant to conduct discovery from the manufacturer itself, particularly where the manufacturer is not a party to the action. Where such evidence is not necessary to demonstrate that the product was, indeed, defective, the trial court did not err by not requiring Johnson to produce direct evidence of Aprebic’s performance standards.
¶34 REI next contends that genuine issues of material fact regarding causation remain, thus precluding summary judgment. However, despite REI’s assertion that the bicycle displayed “substantial wear and tear,” REI does not establish how the fact that the bicycle was a “high mileage vehicle” explains the [*26] fracture of the carbon fiber fork. See CP at 176. Thus, the alleged “wear and tear” on the bicycle is not a ” ‘fact upon which the outcome of the litigation depends.’ ” See Lamon, 91 Wn.2d at 349 (quoting Morris, 83 Wn.2d at 494-95).
[15] ¶35 REI further speculates that the 2006 collision, which resulted in damage to the back tire of the bicycle, may have been a contributing cause of the fracture of the fork. However, REI’s evidence does not explain how that collision could have contributed to the fracture. Moreover, REI’s evidence refutes neither Johnson’s expert’s assertion that the insufficient carbon fiber layering is a defect that can occur only during manufacture nor the same expert’s conclusion that this particular defect caused the fork to fracture. Rather, REI conjectures that “[i]f an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.” CP at 178. REI cannot rely on speculation and conjecture to raise a genuine issue of material fact. See Rugg, 115 Wn. App. at 224.
¶36 The trial court did not erroneously resolve issues of material fact in favor of Johnson. [*27] To the contrary, its grant of summary judgment was appropriate because REI failed to raise any genuine issue of material fact as to its liability for Johnson’s injuries.
IV
¶37 Finally, REI contends that the trial court erred by ruling that any claim brought by REI against Aprebic would be bifurcated for trial from Johnson’s claim. We disagree.
[16, 17] ¶38 [HN22] A trial court’s decision to order separate trials is reviewed for an abuse of discretion. Maki v. Aluminum Bldg. Prods., 73 Wn.2d 23, 25, 436 P.2d 186 (1968) (“The right to order separate trials is a matter of discretion vested in the trial court by the rules.”). Civil Rule 20(b) permits the trial court to order separate trials to prevent delay or prejudice where a party would be delayed or “put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him.” Here, the trial court acted well within its discretion in finding that permitting REI to join Aprebic as a third party defendant would delay and prejudice the adjudication of Johnson’s claim and, thus, ruling that any claim brought by REI against Aprebic should be bifurcated for trial.
¶39 Notwithstanding that the trial court acted within its discretion [*28] pursuant to CR 20(b), REI contends that the trial court’s bifurcation ruling was erroneous because the court “appeared to be unaware of the impact such bifurcation would have on the viability of REI’s contribution claim.” Br. of Pet’r at 41-42. REI and Aprebic cannot be jointly and severally liable for Johnson’s injuries, as required to establish a statutory right to contribution, unless a judgment is entered against both parties in Johnson’s suit. See [HN23] RCW 4.22.040 (noting that a right to contribution exists where the parties are jointly and severally liable); RCW 4.22.070(1)(b) (providing that only those defendants against whom judgment is entered may be jointly and severally liable for the claimant’s injuries). Thus, REI contends that the trial court abused its discretion by misapplying the law in issuing a ruling that would compromise REI’s right to seek contribution from Aprebic.
¶40 However, notwithstanding that REI may be precluded from seeking statutory contribution from Aprebic, the trial court did not abuse its discretion by misapplying the law. Indeed, [HN24] this is not the first time that a court has upheld a proper application of the law despite negative consequences for a party’s [*29] contribution rights. In Kottler v. State, 136 Wn.2d 437, 439, 963 P.2d 834 (1998), our Supreme Court held that a settling party in a civil tort action is not entitled to seek contribution from another alleged tortfeasor where joint and several liability did not arise pursuant to the exceptions set forth in RCW 4.22.070. Because no judgment had been entered against the settling defendant, and, thus, joint and several liability did not arise, RCW 4.22.040 precluded the settling party from seeking contribution. See Kottler, 136 Wn.2d at 439; RCW 4.22.040 (“A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury.”).
¶41 Justice Talmadge wrote separately “to urge legislative attention toward the anomalous result this case requires.” Kottler, 136 Wn.2d at 450 (Talmadge, J., concurring). Although he “agree[d] with the majority’s resolution because the statutory language and our case law compel its result,” Kottler, 136 Wn.2d at 450, Justice Talmadge remarked that it appeared that proper application of the 1981 and 1986 tort reform acts effected a result that contradicted the legislature’s intent [*30] in enacting those very statutes. Kottler, 136 Wn.2d at 450. Thus, “[t]o more effectively execute [the legislature’s] intent,” Justice Talmadge implored the legislature to “address[ ] and correct[ ] this unfortunate situation in the tort law.” Kottler, 136 Wn.2d at 453. Notwithstanding Justice Talmadge’s appeal to the legislature, it has amended neither the 1981 nor the 1986 act to address this “anomalous result.”
¶42 Here, as in Kottler, a result dictated by proper application of the law leads to an “anomalous result” in that REI’s contribution rights are compromised. Here, also as in Kottler, the existence of such an anomaly suggests neither a misunderstanding nor a misapplication of the law. Rather, the trial court here properly understood and applied the law, notwithstanding that REI’s right to seek contribution may have been thereby compromised.
¶43 The trial court did not abuse its discretion by ruling that any claim by REI against Aprebic would be bifurcated for trial from Johnson’s claim. 7
7 REI additionally contends that the trial court erred by denying REI’s request to conduct additional discovery prior to the summary judgment ruling. Because discretionary review was not granted on this [*31] issue, we will not reach it. City of Bothell v. Barnhart, 156 Wn. App. 531, 538 n.2, 234 P.3d 264 (2010) (noting that, [HN25] pursuant to RAP 2.3(e), the appellate court may specify the issue or issues as to which discretionary review is granted), review granted, No. 84907-2 (Wash. Nov. 3, 2010).
¶44 Affirmed.
Grosse and Spearman, JJ., cncur.
Recreation Law 