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Gomez v. Harbor Freight Tools USA Inc.

United States District Court, M.D. Georgia, Athens Division

July 16, 2018




         Plaintiffs Robert V. Gomez, II, Kaitlyn Ann Wille, and Jennifer Price assert that they were injured when Gomez poured fuel from a Blitz portable gasoline container onto a mostly extinguished fire and the container exploded. Plaintiffs contend that the gas container was defective because it did not have a flame arrestor. The gas container was manufactured by Blitz U.S.A., which declared bankruptcy in 2011. Plaintiffs brought this action against Defendants Harbor Freight Tools USA, Inc., Central Purchasing, LLC, and HFT Holdings, Inc. (collectively, “Harbor Freight”) because they assert that the gas container was purchased from a Harbor Freight store. Harbor Freight seeks summary judgment, arguing that this assertion is implausible because Plaintiffs cannot point to any evidence, either in Harbor Freight's records or testimony from Harbor Freight employees, that Harbor Freight ever sold Blitz gas containers. But Plaintiffs did point to the testimony of Gomez's mother, Ronda Baldree, who testified unequivocally that she bought the gas container at the Harbor Freight store in Valdosta, Georgia and loaned it to her son on the day of the explosion. As discussed in more detail below, this evidence creates a genuine fact dispute on whether the gas container was purchased from a Harbor Freight store. The Court denies Harbor Freight's summary judgment motion (ECF No. 45) on this ground. The Court also denies Harbor Freight's summary judgment motion on Gomez's implied warranty claim but grants Harbor Freight's motion as to Plaintiffs' post-sale failure to warn claims and the implied warranty claims of Wille and Price.


         Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.


         Viewed in the light most favorable to Plaintiffs, the record reveals the following facts. In 2012, Ronda Baldree worked for Mackey Lumber in Valdosta, Georgia. Baldree Dep. 23:1-5, 24:17-19, ECF No. 50-1. Mackey Lumber is next door to a Harbor Freight store. Id. at 76:2-7. One afternoon in September 2012, Baldree asked a colleague if there were any gas containers in stock at Mackey Lumber, but there were none. Id. at 78:19-24. The colleague said that Harbor Freight probably carried them, so Baldree took a break from her work and walked next door to Harbor Freight, where she found a “whole friggin' wall” of gas containers. Id. at 78:3-8. She picked one up, paid for it, and went back to work. Id. at 78:9-10. She did not keep the receipt.

         Baldree lives next door to her son, Plaintiff Bobby Gomez. On March 6, 2015, Gomez asked Baldree if he could use her gas container because he was having a get-together and “wanted to get some diesel because the firewood was soaked and it was wet.” Id. at 58:1-5, 21-23. Baldree said yes, so Gomez went to her garage, got the gas container, and used it. Id. The gas container Gomez borrowed was the one Baldree bought from Harbor Freight. Id. at 75:22-76:4.

         Harbor Freight disputes that the gas container involved in the March 2015 incident was purchased at one of its stores. In support of this argument, Harbor Freight presented testimony from its employees that Harbor Freight did not sell Blitz plastic gas containers, as well as sales records for the Valdosta store that do not list any sales of Blitz brand gas containers between 2012 and 2015. Harbor Freight also points out that Plaintiffs abandoned their original theory on how the gas container came to be sold at Harbor Freight and have not proffered a new theory. Plaintiffs initially alleged that Scepter Holdings, Inc., Scepter Canada, Inc., Scepter Manufacturing, LLC, (“Scepter”) and The Moore Company (“Moore”) distributed the gas container to Harbor Freight. After discovery closed and Scepter and Moore filed summary judgment motions, Plaintiffs voluntarily dismissed their claims against them with prejudice. Plaintiffs now acknowledge that the gas container was not sourced through Scepter or Moore, and they admit that “[t]he question of exactly how Harbor Freight came to have Blitz gas cans in stock and on the shelves of its store remains to be answered.” Pls.' Resp. to Defs.' Mot. for Summ. J. 11, ECF No. 50. They argue that “[i]t is entirely plausible that the [gas container] was sold to some other distributor” and got to Harbor Freight through that distributor, but they have not discovered any evidence to trace the source of the gas container through another distributor. Id. at 14.


         Plaintiffs brought claims against Harbor Freight for negligence, pre-sale failure to warn, post-sale failure to warn, and breach of implied warranty. Harbor Freight seeks summary judgment on all claims because it contends that Plaintiffs cannot establish that the gas container was purchased from a Harbor Freight store. In the alternative, Harbor Freight seeks summary judgment on the warranty claims due to lack of privity and the post-sale failure to warn claim because Georgia law does not impose such a duty on product sellers.

         I. Is There a Genuine Fact Dispute on Where the Gas Container was Purchased?

         A. Can Plaintiffs Rely on Baldree's Testimony?

         Harbor Freight argues that the Court cannot rely on Baldree's testimony to establish that the gas container was purchased at Harbor Freight. First, Harbor Freight asserts that a plaintiff may not rely on “self-serving testimony” to oppose summary judgment. Harbor Freight is wrong. In this circuit, “a litigant's self-serving statements based on personal knowledge or observation can defeat summary judgment.” United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018); id. at 858-59 (“A non-conclusory affidavit which complies with Rule 56 can create a genuine dispute concerning an issue of material fact, even if it is self-serving and/or uncorroborated.”). Baldree's testimony is based on her personal knowledge, so the fact that it is self-serving does not mean that the Court must disregard it.

         Second, Harbor Freight discounts Baldree's testimony as “merely colorable” and “conclusory.” Defs.' Br. in Supp. of Mot. for Summ. J. 9, ECF No. 45-1 (citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 (11th Cir. 1988) and Peppers v. Coates, 887 F.2d 1493, 1498 (11th Cir. 1989)). It is not. In Brown, the question was whether the plaintiff had submitted sufficient evidence to show that a city's official decisionmakers sanctioned the use of deadly force under constitutionally unreasonable circumstances and thereby repudiated the city's official policy manual on deadly force. Brown, 848 F.2d at 1540. The Eleventh Circuit doubted that the plaintiff had presented any evidence to establish that the city's policy was not, in fact, the policy but stated that even if he had, it was “merely colorable” because it was nothing more than a scintilla of evidence that was not significantly probative on this point and thus could not defeat summary judgment. Id. at 1540 & n.12. In Peppers, the Eleventh Circuit emphasized that a party cannot survive summary judgment if his ‚Äúresponse consists of nothing more than a repetition ...

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