Emery v. Federated Foods, Inc.

Supreme Court of Montana · 1993 · Torts

TortsProducts liabilityFailure to warnSummary judgmentVenueEvidencefailure to warnproducts liability

Facts

Laura Emery bought a bag of generic large marshmallows for her children after scanning the label, and no warning about aspiration by small children appeared on the product. The next morning, her seven-year-old retrieved the marshmallows from a cupboard and gave some to two-and-one-half-year-old Chad, who began choking within seconds and later suffered severe brain injuries. Emery sued Federated Foods alleging the marshmallows were defective and unreasonably dangerous because they lacked an adequate warning, and also sued Dr. Sorenson for negligent treatment. In opposing summary judgment, Emery submitted affidavits stating that marshmallows can be particularly hazardous if aspirated by young children and that Laura Emery would not have purchased them had she been warned.

Issue

Whether the district court erred in transferring venue after dismissal of other defendants, in concluding the expert affidavits did not support plaintiff's position, and in granting summary judgment on the failure-to-warn products liability claim. Also, whether the appellate court needed to decide the admissibility of a pediatric report not ruled on below.

Rule

Venue is determined by the status of the parties and pleadings at the time the complaint is filed or at the time the moving party first appears; later dismissal of codefendants does not entitle a remaining defendant to a change of venue. A products liability failure-to-warn claim requires proof that (1) the product was in a defective condition, unreasonably dangerous to the user or consumer, (2) the defect caused the accident and injuries complained of, and (3) the defect is traceable to the defendant. Failure to warn of an injury-causing risk associated with a technically pure and fit product can render the product unreasonably dangerous, and causation may be shown by evidence that a warning would have altered the plaintiff's use of the product or prompted precautions.

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In Boise, Nina Alvarez bought a bag of chewy fruit cubes from a neighborhood market for her family. The package had no warning about risks to toddlers, and Nina later submitted an affidavit stating she regularly reads food labels and would not have bought the product had it warned that the cubes can swell and lodge in a young child's airway; a pediatric specialist also submitted an affidavit describing that airway risk in children under three.

The manufacturer moves for summary judgment, arguing that choking is a matter of common knowledge and that the product is ordinary food. How should the court rule?

Explanation. A failure-to-warn products liability claim requires evidence that the product was in a defective condition and unreasonably dangerous, that the defect caused the injury, and that the defect is traceable to the defendant. Under the majority opinion, failure to warn of an injury-causing risk associated with a technically pure and fit product can render it unreasonably dangerous, and summary judgment is improper where affidavits create factual disputes about danger, foreseeability, adequacy of warning, and causation. The court must draw all reasonable inferences for the nonmovant and may not resolve those disputes on summary judgment. (Derived from Emery v. Federated Foods, Inc. (n.d.).)