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Sutherlin v. Lowe's Home Centers, LLC

United States District Court, E.D. Virginia, Richmond Division

December 23, 2014



DAVID J. NOVAK, Magistrate Judge.

In this case, the Court must determine whether Defendant negligently caused Plaintiffs injuries by allowing an allegedly defective container of UGL Drylok Masonry Waterproofer ("waterproofer") to create a dangerous condition in its paint department and by failing to warn Plaintiff about the risk of spillage of the container's contents due to its alleged dangerously defective condition. This matter comes before the Court by consent pursuant to 28 U.S.C. § 636(c)(1) on Defendant's Motion for Summary Judgment (ECF No. 40). For the reasons that follow, the Court GRANTS Defendant's Motion (ECF No. 40).


Antwan Sutherlin ("Plaintiff') brings this action against Lowe's Home Centers, LLC ("Defendant"), alleging negligence in relation to Plaintiffs alleged exposure to an oil-based waterproofer while in Defendant's store. (Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def's Mem.") (ECF No. 41) at 1.) The Court determines that the undisputed facts are as follows.[1] On April 23, 2012, Plaintiff went to Defendant's store at 1640 West Broad Street in Richmond, Virginia. (Am. Compl. (ECF No. 20-1) ¶ 2.)[2] While in the paint department that day. Plaintiff observed cans of waterproofer stacked inside of a metal bay. (Portions of Tr. of Dep. of Antwan Sutherlin ("Sutherlin Dep.") (ECF No. 41-1) 100:1-12, Oct. 3, 2014.) Plaintiff stated that he tipped the top can - a five-gallon can of waterproofer - forward, so that he could read the label on the back of the can. (Sutherlin Dep. 100:13-25, 101:6-14, 102:9-13.) A warning label on the can stated that the waterproofer must be used in a specific manner under specific circumstances and has the potential to cause damage to the brain or nervous system. (Pl.'s Resp. Br. to Def.'s Mot. for Summ. J. ("Pl.'s Resp.") (ECF No. 47) at 3.)[3] Plaintiff did not see anything wrong with the can before tipping it towards himself, and its lid "looked like it was on." (Sutherlin Dep. 101:23-25, 102:5-7.)

When Plaintiff tipped the can forward to read the back label, its contents spilled out onto him. (Def.'s Mem. at 1.) Plaintiff testified that "there was a hole somewhere in the top" of the can that he "couldn't see, where like something had maybe hit it." (Sutherlin Dep. 102:14-16.) After the incident. Plaintiff stated that he observed that some of the tabs on the container's lid "were either bent up or had been damaged, " but he "couldn't see" this alleged damage before the spill. (Sutherlin Dep. 102:17-25.) Plaintiff acknowledged that he had "no idea" how the alleged cracks in the can's lid came to be, "no idea" when they occurred, "no idea" how long they had been there and "no idea" who caused them. (Sutherlin Dep. 105:4-12.)

Two of Defendant's employees who were working in the paint department at the time of this incident, Louis Wilby and Arlene Salmons, were deposed in connection with this matter. (Def's Mem. at 2; Portions of Tr. of Dep. of Louis Wilby ("Wilby Dep.") (ECF No. 41-2); Portions of Tr. of Dep. of Arlene Salmons ("Salmons Dep.") (ECF No. 41-3).) Both testified that they had not previously witnessed a spill of a five-gallon container of waterproofer while working. (Def.'s Mem. at 2.)[4] Defendant's employees also testified that Defendant has safety protocols in place for dealing with spills of hazardous materials ("HAZMAT").[5]

After the spill. Plaintiff left the store. (Def.'s Mem. at 2.) While driving home, he was overcome by the fumes, passed out and was involved in a single-car accident. (Def's Mem. at 2.) Plaintiff alleges that he suffers from cognitive damage as a result of his exposure to the waterproofer and subsequent car accident. (Def.'s Mem. at 2.)


Plaintiff filed this action in the City of Richmond Circuit Court alleging six counts: (I) Premises Liability - General Negligence; (II) Products Liability - General Negligence; (III) Strict Products Liability; (IV) Products Liability - Failure to Warn of Danger in Handling of Product; (V) Products Liability - Breach of Express Warranty; and (VI) Products Liability - Breach of Implied Warranty of Merchantability. (Compl. (ECF No. 1-1) ¶¶ 10-52.) Defendant timely removed the case to this Court. (Defs.' Mem. at 2; Def.'s Notice of Removal (ECF No. 1.).)

On May 23, 2014, Defendant moved this Court to dismiss Counts III, V and VI of Plaintiffs Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Def's Mot. to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 4).) On September 23, 2014, this Court granted Defendant's motion and dismissed Counts III, V and VI for failure to state a claim upon which relief can be granted. (Order (ECF No. 16).) Following the Court's decision, Plaintiff filed an amended complaint re-alleging Counts I, II and IV on October 16, 2014. (Am. Compl. ¶¶ 10-29.)

On November 25, 2014, Defendant moved this Court to dismiss Plaintiffs amended complaint for lack of subject matter jurisdiction. (Def.'s Mot. to Dismiss for Lack of Subject Matter Jurisdiction (ECF No. 38).) Defendant argued that because Plaintiff filed for bankruptcy during the pendency of this lawsuit and did not disclose the existence of this claim to the Bankruptcy Court or identify it as property of the bankruptcy estate, Plaintiff lacked standing to pursue his claim. (Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss for Lack of Subject Matter Jurisdiction ("Def's Mot. to Dismiss Mem.") (ECF No. 39) at 1-2.) Because Plaintiffs personal injury claim was property of the bankruptcy estate and the bankruptcy trustee had not abandoned the claim, Defendant argued that only the trustee had standing to pursue the claim. (Def's Mot. to Dismiss Mem. at 2-3.) Plaintiff responded that his failure to disclose his claim to the bankruptcy court was an error that he had since corrected and stated that the bankruptcy trustee intended to abandon the claim, thereby clearing the way for Plaintiff to proceed in this matter. (Pl.'s Resp. to Def's Mot. to Dismiss for Lack of Subject Matter.Jurisdiction (ECF No. 46) at 1-2.) On December 10, 2014, the Court denied Defendant's motion to dismiss provided that not later than December 23, 2014, Plaintiff filed proof of the trustee's abandonment of the claim. (Order (ECF No. 49).) On December 23, 2014, Plaintiff filed a response to the Court's Order, attaching a letter from counsel for the bankruptcy trustee that indicated that the trustee had not abandoned the claim, but would authorize Plaintiff to continue to pursue his claim.

On the same day that Defendant filed its motion to dismiss for lack of subject matter jurisdiction. Defendant also moved for summary judgment on the grounds that Plaintiff failed to establish a prima facie case for any of his remaining claims. (Def.'s Mem. at 4-12.) On December 15, 2014, the Court issued an Order granting Defendant's motion for summary judgment in its entirety. (Order (ECF No. 51).) This memorandum opinion sets forth the reasons for the Court's grant of summary judgment for Defendant.


Summary judgment is appropriate where"the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The relevant inquiry at the summary judgment stage analyzes "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., All U.S. 242, 251-52 (1986). When reviewing a motion for summary judgment, the Court views the facts in the light most favorable to the non-moving party. Id. at 255. The Court cannot weigh the evidence; it must simply determine whether ...

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