United States District Court, W.D. Pennsylvania
J. Schwab United States District Judge
before the Court is a Motion for Partial Judgment Summary
filed by Defendants. Doc. no. 84. Plaintiff filed a Response
and Brief in Opposition to the Motion (doc. nos. 89, 90). The
matter is now ripe for adjudication.
Flanagan (“Plaintiff”) and his wife planned to
attend a picnic on August 23, 2014. That day, Plaintiff asked
his wife to purchase a HurryCane, a foldable, self-standing
cane, for him from a Bed Bath & Beyond, Inc.
(“BB&B”) store in Bethel Park, Pennsylvania.
Plaintiff did not read the HurryCane's packaging or
instructions and left for the picnic minutes after his wife
brought it home. As he descended steps with the HurryCane, he
fell. He claimed that the HurryCane unintentionally folded
and caused his fall.
brought this diversity action against businesses that made,
supplied, advertised, or sold the HurryCane. These entities
include HurryCane, LLC f/k/a ZOOMWORKS, LLC f/k/a martFIVE
LLC, Marketing Architects, Inc., and BB&B (collectively
the “Defendants”). The Defendants filed a Partial
Motion for Summary Judgment (Docket No. 84) targeting the
following claims in Plaintiff's amended complaint: breach
of express warranty (contained within counts IV and VIII),
manufacturing defect (contained within counts II and VI), and
failure to warn (counts III and VII). (Docket No. 43 at 9,
11, 14, 18, 20, 22). Because Plaintiff failed to produce
sufficient evidence to create genuine issues of material fact
requiring a jury trial on these claims, the Court will grant
Defendants' Partial Motion for Summary Judgment.
August 23, 2014, the day of the accident, Plaintiff had not:
used a HurryCane; talked to anyone who used one;
independently researched the product; or read any literature,
reviews, or news articles about it. (Docket No. 92-1 at
44:22-45:16). The HurryCane piqued Plaintiff's interest
because television advertisements showed that it could stand
on its own. (Docket No. 92-1 at 44:6-13). On August 23, 2014,
Plaintiff asked his wife to buy one for him at BB&B in
Bethel Park. (Id. at 42:11-17; 43:18-44:2). He
thought the HurryCane's self-standing ability would be
helpful at a picnic he and his wife planned to attend that
day. (Id. at 44:6-9). Plaintiff did not know if
BB&B employees talked to his wife about the HurryCane or
if she observed any HurryCane literature or advertisements
while there. (Id. at pp. 46-47). Neither Plaintiff
nor Mrs. Flanagan spoke to Defendants' employees about
the HurryCane before August 23, 2014. (Id. at
his deposition, Plaintiff did not remember who removed the
HurryCane from its package. (Id. at 49:17-18). He
did not read anything on the HurryCane's box or any
literature within its box and could not describe what its box
looked like. (Id. at 50:7-50:12; 50:17-22). However,
he recalled that the HurryCane could support 200 or 300
pounds. (Id. at 50:13-16). An assertion on its
packaging states that the HurryCane “[w]ithstands up to
350 pounds.” (Docket No. 92-3 at 1). Plaintiff admitted
that he did not look at any warnings or instructions before
using his HurryCane. (Docket No. 92-1 at 51:20-52:1).
Defendants' counsel asked why he did not look at the
materials accompanying the HurryCane:
Q: But the fact that you didn't read any warranties or
instructions, was that because there wasn't [sic] any
included, or you just chose not to look into it [sic]?
A: Chose not to look into it.
(Id. at 52:9-13).
Flanagans left minutes after Mrs. Flanagan brought home the
HurryCane. (Id. at 54:1-7). Plaintiff first used his
HurryCane as he left his house to go to a picnic.
(Id. at 53:16- 19). It appeared to be in good
working order and without visible defects. (Id. at
using his HurryCane, successfully traversed a walkway leading
from the front of his house to two concrete steps.
(Id. at 54:21-55:1). He then fell while walking down
the concrete steps with his HurryCane. (Id. at
55:17-23). Plaintiff blamed the HurryCane for his fall
because it “collapsed” when he placed it on the
ground. (Id. at 63:20-64:7). However, he did not
know if the HurryCane was broken, cracked, or missing parts
after he fell while using it. (Id. at 65:14- 19).
Plaintiff's left patella fractured and his right patella
ruptured due to his fall. (Id. at 71:7-10).