JOHN WALSH; REBECCA WALSH, Wife v. Am. Int'l Specialty Lines Ins. Co., 365 F.3d 263, 267 4th Cir. 2004 . Additionally,…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2299
JOHN WALSH; REBECCA WALSH, Wife,
Plaintiffs - Appellants,
versus
RESTORATION HARDWARE, INCORPORATED; SYRATECH
CORPORATION; SILVESTRI, INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CA-01-527)
Argued: September 28, 2004 Decided: February 11, 2005
Before WIDENER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Widener wrote a
dissenting opinion.
ARGUED: Fred William DeVore, III, DEVORE, ACTON & STAFFORD,
Charlotte, North Carolina, for Appellants. Elizabeth Ann
Martineau, HEDRICK, EATMAN, GARDNER & KINCHELOE, Charlotte, North
Carolina, for Appellee Restoration Hardware, Incorporated; Kimberly
Ann Gossage, MORRIS, YORK, WILLIAMS, SURLES & BARRINGER, L.L.P.,
Charlotte, North Carolina, for Appellees Syratech Corporation and
Silvestri, Incorporated.

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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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1Several defendants were named in the suit and all were
dismissed on summary judgment. The Walshes only appeal the
dismissal of Restoration Hardware.
2The Walshes also alleged breach of express warranty but do
not appeal the dismissal of that claim.
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PER CURIAM:
Plaintiffs-appellants John and Rebecca Walsh filed suit against
defendant-appellee, Restoration Hardware, Inc., 1 alleging, inter
alia, negligence, breach of implied warranty of merchantability, and
breach of implied warranty of fitness for a particular purpose
concerning Christmas tree lights that the Walshes purchased from
Restoration Hardware. 2 The district court granted summary judgment
to Restoration Hardware, and the Walshes timely appeal. For the
reasons given herein, we affirm.
I.
On or about January 2000, the Walshes purchased several strands
of large bulb “old time” Christmas lights from Restoration Hardware
and stored them in their attic for use on their tree during the 2000
Christmas season. The attic in which the lights were stored became
extremely hot and extremely cold throughout the year depending on
the external temperature. These lights were combined with lights
purchased in December 2000 and used on the Walshes’ Christmas tree
in December 2000.

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3 Mr. Walsh testified at deposition that his daughter saw one
of the Christmas lights explode, though there is no testimony from
the daughter in the record.
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After purchasing these lights, the Walshes tested them by
plugging them into the wall. When the lights appeared normal, the
Walshes then strung the lights on their tree. On December 20, 2000,
Rebecca Walsh arrived home with her daughter and turned on the
lights. Mrs. Walsh heard a “pop” and, upon turning, saw a flame at
the base of the Christmas tree. 3 The flame quickly spread, and Mrs.
Walsh and her daughter fled the house, which was destroyed by the
fire.
In August, 2001, the Walshes filed suit against Restoration
Hardware. Restoration Hardware answered and moved for summary
judgment. The district court granted Restoration Hardware’s motion.
The Walshes timely appeal.
II.
We review the district court’s decision under the familiar
summary judgment standard: viewing the record in the light most
favorable to the Walshes and reviewing all issues of law de novo,
we uphold the district court grant of summary judgment only if
Restoration Hardware is entitled to judgment as a matter of law.
See St. Paul Fire & Marine Ins. Co. v. Am. Int'l Specialty Lines
Ins. Co., 365 F.3d 263, 267 (4th Cir. 2004). Additionally, as a
federal court sitting in diversity, we apply the substantive law of

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4The dissent contends that we lack jurisdiction to reach this
issue because the summary judgment order does not address it.
While the dissent correctly notes that we generally do not review
denials of summary judgment, that is not what happened here. The
district court did not deny summary judgment in this case; rather,
it granted it. Once the matter is properly before us on appeal, we
may uphold this grant on any grounds before the district court.
See Keller v. Prince George’s County, 923 F.2d 30, 32 (4th Cir.
1991)(“[T]he prevailing party [in a summary judgement motion] may,
of course, assert in a reviewing court any ground in support of his
judgment, whether or not that ground was relied upon or even
considered by the trial court.") (internal quotation omitted); see
also Egbuna v. Time-Life Libraries, Inc., 153 F3d 184, 186 (4th
Cir. 1998) (“We may affirm the grant of summary judgment on grounds
other than those relied upon by the district court.”). Cedar Coal
Co. v. United Mine Wkrs. of America, 560 F.2d 1153 (4th Cir. 1977),
on which the dissent relies, involved the failure to rule on a
motion for a preliminary injunction being construed as a denial,
and, as such, is simply inapposite.
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North Carolina, the state in which the action arose, Castillo v.
Emergency Med. Assocs., P.A., 372 F.3d 643, 646 (4th Cir. 2004)
(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188,
58 S. Ct. 817 (1938)).
III.
The district court held that the North Carolina “sealed
container” defense protects Restoration Hardware from liability in
this case. See N.C. Gen. Stat. § 99B-2 (2004). We need not reach
that issue because we hold that the Walshes did not present evidence
to establish a prima facie case of negligence or breach of implied
warranty under North Carolina law. 4 Therefore, we affirm the
district court, albeit on different grounds.

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Plaintiffs bringing product liability claims under a negligence
theory, a theory of breach of an implied warranty of
merchantability, or a theory of breach of an implied warranty of
fitness for a particular purpose must present some evidence that,
inter alia, the product was in a defective condition at the time
defendant sold it to plaintiff. Nicholson v. American Safety Utility
Corp., 476 S.E.2d 672, 676, 678 (N.C. Ct. App. 1996); Bailey v.
Le Beau, 339 S.E.2d 460, 463 (N.C. Ct. App. 1986). If, as is the
case here, the plaintiffs do not present any direct evidence of the
product’s defectiveness at the time of sale, they can still raise
an issue of material fact sufficient to survive summary judgment
through circumstantial evidence. DeWitt v. Eveready Battery Co.,
565 S.E.2d 140, 151 (N.C. 2002). In deciding whether this
circumstantial evidence is sufficient to create a dispute concerning
material facts, North Carolina courts examine six factors:
(1) the malfunction of the product; (2) expert testimony
as to a possible cause or causes; (3) how soon the
malfunction occurred after the plaintiff first obtained
the product and other relevant history of the product,
such as its age and prior usage by plaintiff and others,
including evidence of misuse, abuse, or similar relevant
treatment before it reached the defendant; (4) similar
incidents, when accompanied by proof of substantially
similar circumstances and reasonable proximity in time;
(5) elimination of other possible causes of the
accident; and (6) proof tending to establish that such
an accident would not occur absent a manufacturing
defect.
Id. (internal citations and quotations omitted).

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5The Walshes’ daughter allegedly saw one of the lights
explode. However, she has not made sworn testimony on the record
to this effect, and the Walshes have not explained why her
statement is not inadmissible hearsay.
6Restoration Hardware was apparently unable to produce an
exemplar of the lights for the Walshes to test, which is troubling.
The Walshes, however, have not pursued this issue on appeal or
presented expert testimony as to how this affected their case.
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In applying these factors to the Walshes’ claim, we note that
"in most cases, the weighing of these factors should be left to the
finder of fact." Id. We also note, however, that, in addition to
using these factors to assist the fact finder, “the trial judge is
to consider these factors initially and determine whether, as a
matter of law, they are sufficient to support a finding of a breach
of warranty.” Id. Considering these factors on the record before
us, we hold that, as a matter of law, the circumstantial evidence
presented by the Walshes does not support a finding of negligence
or breach of the implied warranties.
Considering the facts before us in light of the DeWitt factors,
we hold that the Walshes have not presented circumstantial evidence
sufficient to support a finding of breach of warranty. Although the
record reflects that there was a popping sound in the room when the
Christmas lights were plugged in, there is no other evidence that
the lights themselves actually malfunctioned. 5 There was no expert
testimony as to the cause of the fire. 6 The lights were purchased
almost a year before they were used. The Walshes acknowledge that

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they were stored in an attic subject to extreme temperatures for a
period of months. There is no evidence of similar incidents with
these or similar Christmas lights. There was no evidence that
eliminated other causes of the fire, and no evidence that such a
fire would occur absent a manufacturing defect. Application of the
DeWitt criteria thus compels our conclusion that the Walshes’
evidence of causation is fatally deficient.
IV.
Having carefully considered the arguments of the parties and
the record before us, we hold that the Walshes have not presented
circumstantial evidence sufficient to demonstrate that the lights
were defective at the time that they were sold. The judgment of the
district court is therefore
AFFIRMED.

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WIDENER, Circuit Judge, dissenting:
I respectfully dissent.
The majority=s disposition of this matter is contrary to the
rule that a denial of a motion for summary judgment is not an
appealable order. See Hensley v. Horne, 297 F.3d 344, 347 (4th Cir.
2002).
Restoration Hardware=s brief accompanying its motion for
summary judgment argued that plaintiffs failed to produce any direct
or circumstantial evidence that the lights were defective at the
time they left Restoration Hardware=s control. Whatever the merits
of that argument, the district court did not grant the motion for
summary judgment on that ground, and the ground is not mentioned in
its opinion. The district court held that Restoration Hardware was
protected by the sealed container defense. Thus, the motion for
summary judgment based upon plaintiffs= failing to produce
sufficient evidence of defect was not acted upon and is therefore
considered to be denied. See Cedar Coal Co. v. United Mine Wkrs.
of America, 560 F.2d 1153, 1161 (4th Cir. 1977) (Athe failure to
hear the motion for the preliminary injunction cannot be taken as
inadvertence; rather it may only be construed as a conscious denial
of a hearing on the motion”).
Even if the majority, in its footnote 4, is correct in
declining to apply Cedar Coal as a denial of the motion for summary
judgment on the ground upon which it presently relies, its reliance

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on Keller and Egbuna also should be of no avail. Both Keller and
Egbuna are based on Securities and Exchange Commission v. Chenery
Corp., 318 U.S. 80 (1943). The majority, however, does not mention
the critical parts of Chenery.
The appellate decision must be
. . . within the power of the appellate court to
formulate.
318 U.S. at 88.
And
. . . a judicial judgment cannot be made to do service
for an administrative judgment [which was not made].
318 U.S. at 88.
This appellate court has no power to review the denial of a
motion for summary judgment. Certainly it should have no power to
review the mere failure to act on a motion for summary judgment.
If the appellate court in Chenery was not authorized to make
the decision the Agency was authorized to make and had not made,
then it should follow that this appellate court should not be
authorized to make a decision which the district court was
authorized to make but simply had not made.
In my opinion, the judgment of the district in this case court
should be vacated and the case remanded for further consideration.

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