Perez v. Sunbeam Products, Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 21-cv-01915-PAB-KAS
GEORGINA PEREZ,
Plaintiff,
v.
SUNBEAM PRODUCTS, INC., d/b/a JARDEN SOLUTIONS,
NEWELL BRANDS, INC., and
TARGET CORPORATION,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Target Corporation’s Motion for Summary
Judgment [Docket No. 49]. Plaintiff Georgina Perez filed a response, Docket No. 54,
and Target Corporation (“Target”) filed a reply. Docket No. 56. The Court has
jurisdiction pursuant to 28 U.S.C. § 1332.
I. 	BACKGROUND1
Ms. Perez allegedly purchased a Multi-Cooker2 from a Target store in Glendale,
Colorado on November 23, 2018. Docket No. 49 at 2, ¶ 1.3 On or about June 3, 2019,
Ms. Perez used the Multi-Cooker to prepare beans and claims she was injured when
1 The following facts are undisputed unless otherwise indicated.
2 The parties state that the Multi-Cooker is a model SCCPPC600V1 Crock-Pot-
branded “Express Crock Multi-Cooker.” Docket No. 49 at 1; Docket No. 78 at 3, ¶ 10.
3 Target states that it only assumes the validity of this fact for purposes of the
summary judgment motion, but it reserves the right to dispute the fact at trial. Docket
No. 49 at 2 n.1, 5.
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the Multi-Cooker exploded, causing hot beans and liquid to come into contact with her,
resulting in second-degree burns (the “subject incident”). Id., ¶ 2.
Target refers to the Multi-Cooker as a “national brand” product, meaning it was
not a Target-branded item, and it was sold by other retailers, such as Wal-Mart or
Amazon, in addition to Target. Id., ¶ 3. Target did not design, assemble, fabricate,
produce, construct, or otherwise prepare the Multi-Cooker prior to the sale of the
product to a customer of Target. Id., ¶ 4. Target did not create or furnish the
manufacturer of the Multi-Cooker with specifications for the Multi-Cooker or any
specifications relevant to the alleged defect in the Multi-Cooker. Id. at 3, ¶ 6. Target
exercised no control over the manufacturing process for the Multi-Cooker. Id., ¶ 7.
Target did not alter or modify the Multi-Cooker in any manner after the product came
into its possession. Id., ¶ 8. Target is not owned, in whole or part, by the manufacturer
of the Multi-Cooker, and does not own, in whole or part, the manufacturer. Id., ¶ 9.
Before the sale of the Multi-Cooker to Ms. Perez and the subject incident, Target
received one customer report wherein the customer was burned by the contents of his
Multi-Cooker. Id., ¶ 11.4 Target received this customer’s report in May 2018. Docket
4 Ms. Perez’s response to this fact states, “Plaintiff admits that Target received a
May 23, 2018 complaint as described, but denies that it only received one such
complaint. Target’s discovery responses combined with Tracie Horihan’s deposition
testimony suggest that Target received four complaints involving injuries regarding the
subject cooker, and countless others reporting various problems with their cookers.”
Docket No. 54 at 3, ¶ 11. Ms. Perez fails to cite any evidence to support her denial of
the fact that Target received only one complaint before the sale of the Multi-Cooker to
Ms. Perez, in violation of the Court’s Practice Standards. See Practice Standards (Civil
Cases), Chief Judge Philip A. Brimmer, § III.F.3.b.iv (“Any denial shall be accompanied
by a brief factual explanation of the reason(s) for the denial and a specific reference to
material in the record supporting the denial.”). The Practice Standards state that
“[f]ailure to follow these procedures . . . may cause the Court to deem certain facts as
admitted.” Id., § III.F.3.b.ix. Accordingly, the Court deems this fact admitted.
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No. 54 at 6, ¶ 13, Docket No. 56 at 3, ¶ 13.5 Target reported this information to the
Consumer Product Safety Commission and Target’s vendor. Docket No. 49 at 3, ¶ 12.6
No other entity or person communicated any defect in the Multi-Cooker model to Target
at any time before Ms. Perez’s purchase of the Multi-Cooker and the subject incident.
Id. at 3-4, ¶ 15.7
5 Target does not include this fact in its undisputed facts section. However, the
Court finds that the parties do not dispute that Target received this customer’s report in
May 2018. See generally Docket No. 54 at 3, ¶ 11 (“Plaintiff admits that Target
received a May 23, 2018 complaint as described”); Docket No. 56 at 7 (discussing “the
incident reported to Target in May 2018”); Docket No. 54-3 at 1-2.
6 Target attached a copy of its notification to the vendor as Exhibit C, Docket No.
49-3, which includes the customer’s description of the incident. Docket No. 49 at 3,
¶ 13. Ms. Perez does not challenge the authenticity of Exhibit C. See Docket No. 54 at
4, ¶ 13.
7 Ms. Perez’s response to this fact states, “DENIED. Target received four reports
of injuries resulting from the cooker, along with numerous others communicating various
issues with the cooker.” Docket No. 54 at 4, ¶ 15 (citing Docket No. 54-3; Docket No.
54-4). Docket No. 54-3 identifies four complaints that Target received regarding the
Multi-Cooker, including the May 2018 report. Docket No. 54-3 at 1-12. However, the
other three complaints in the exhibit were reported to Target on August 29, 2020;
August 15, 2020; and November 30, 2020. Id. at 5, 8, 11. These reports occurred after
Ms. Perez purchased the Multi-Cooker on November 23, 2018 and therefore do not
contradict defendant’s proffered undisputed fact. Furthermore, Ms. Perez also cites
Docket No. 54-4, an exhibit containing 917 pages, to support her denial of Target’s fact.
Ms. Perez provides no citation to a page number in this exhibit, which violates the
Court’s Practice Standards. See Practice Standards (Civil Cases), Chief Judge Philip
A. Brimmer, § III.F.3.b.ii-iv. The Court is not required to sift through Ms. Perez’s
voluminous exhibit to identify whether her denial is properly supported by the record.
See Certain Underwriters at Lloyd’s London v. Garmin Int’l, Inc., 781 F.3d 1226, 1231
(10th Cir. 2015) (“the district court acted well within its discretion in setting aside the
unwieldy mass of data that [the party] attempted to rely on without providing correct,
specific references in accordance with the local rules”). Accordingly, the Court deems
this fact undisputed.
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II. 	LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a
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motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id.
III. 	ANALYSIS
Ms. Perez asserts claims against all defendants for strict products liability design
defect; strict products liability manufacturing defect; strict products liability failure to
warn; negligence; breach of implied warranty; breach of express warranty; violation of
the Colorado Consumer Protection Act; and fraud. Docket No. 78 at 8-25. Ms. Perez
and Target agree that Colorado law applies to the claims in this case. The Court will
therefore operate under the same premise. See Grynberg v. Total S.A., 538 F.3d 1336,
1346 (10th Cir. 2008) (“Because the parties’ arguments assume that Colorado law
applies, we will proceed under the same assumption.”). Target argues that it is entitled
to summary judgment on all claims because it is an “innocent seller” of the Multi-Cooker
under Colo. Rev. Stat. § 13-21-402. Docket No. 49 at 1-2, 7.
The “innocent seller” provision of the Colorado Products Liability Act provides
that “[n]o product liability action8 shall be commenced or maintained against any seller
of a product unless said seller is also the manufacturer of said product or the
manufacturer of the part thereof giving rise to the product liability action.” Colo. Rev.
8 A “products liability action” is defined under the statute as “any action brought
against a manufacturer or seller of a product, regardless of the substantive legal theory
or theories upon which the action is brought, for or on account of personal injury, death,
or property damage caused by or resulting from the manufacture, construction, design,
formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any
product, or the failure to warn or protect against a danger or hazard in the use, misuse,
or unintended use of any product, or the failure to provide proper instructions for the use
of any product.” Colo. Rev. Stat. § 13-21-401(2).
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Stat. § 13-21-402(1) (footnote added).9 A “seller” is defined as “any individual or entity,
including a manufacturer, wholesaler, distributor, or retailer, who is engaged in the
business of selling or leasing any product for resale, use, or consumption.” Colo. Rev.
Stat. § 13-21-401(3). Pursuant to the statute,
“Manufacturer” means a person or entity who designs, assembles, fabricates,
produces, constructs, or otherwise prepares a product or a component part of a
product prior to the sale of the product to a user or consumer. The term includes
any seller who has actual knowledge of a defect in a product or a seller of a
product who creates and furnishes a manufacturer with specifications relevant to
the alleged defect for producing the product or who otherwise exercises some
significant control over all or a portion of the manufacturing process or who alters
or modifies a product in any significant manner after the product comes into his
possession and before it is sold to the ultimate user or consumer. The term also
includes any seller of a product who is owned in whole or significant part by the
manufacturer or who owns, in whole or significant part, the manufacturer. A
seller not otherwise a manufacturer shall not be deemed to be a manufacturer
merely because he places or has placed a private label on a product if he did not
otherwise specify how the product shall be produced or control, in some
significant manner, the manufacturing process of the product and the seller
discloses who the actual manufacturer is.
Colo. Rev. Stat. § 13-21-401(1) (emphasis added). The relevant timeframe for
determining whether a seller is a manufacturer by virtue of having “actual knowledge of
a defect in a product” is whether the seller had actual knowledge of a defect at the time
the product was sold to the plaintiff. See Mills v. FCA US, LLC, No. 18-cv-01891-MSK-
STV, 2018 WL 11386606, at *3 (D. Colo. Nov. 29, 2018). The purpose of Colorado’s
innocent seller statute is to “shield[] a defendant [who] has done nothing more than sell
9 Many states have similar “innocent seller” statutes. See, e.g., Tex. Civ. Prac. &
Rem. Code Ann. § 82.003; Ind. Code Ann. § 34-20-2-3; Md. Code Ann., Cts. & Jud.
Proc. § 5-405; 735 Ill. Comp. Stat. Ann. 5/2-621; Miss. Code. Ann. § 11-1-63(h); W. Va.
Code Ann. § 55-7-31(b); N.D. Cent. Code Ann. § 28-01.3-04; Kan. Stat. Ann. § 60-
3306.
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a defective product.” Bullock, ex rel. Bullock v. Daimler Trucks N. Am., LLC, No. 08-cv-
00491-PAB-MEH, 2010 WL 1380724, at *1 (D. Colo. Mar. 30, 2010).
Target argues that it is merely a “seller” and is not a “manufacturer” of the Multi-
Cooker under Colo. Rev. Stat. § 13-21-401(1) and therefore the innocent seller
provision bars plaintiff’s claims. Docket No. 49 at 5-7. It is undisputed that Target did
not design, assemble, fabricate, produce, construct, or otherwise prepare the Multi-
Cooker prior to its sale; Target did not create or furnish the manufacturer of the Multi-
Cooker with specifications for the Multi-Cooker; Target exercised no control over the
manufacturing process for the Multi-Cooker; Target did not alter or modify the Multi-
Cooker in any manner after the product came into its possession; and Target is not
owned, in whole or part, by the manufacturer of the Multi-Cooker, and does not own, in
whole or part, the manufacturer. Id. at 2-3, ¶¶ 4, 6-9. However, the parties dispute
whether Target qualifies as a manufacturer by virtue of having “actual knowledge” of a
“defect” in the Multi-Cooker. Compare Docket No. 49 at 6 with Docket No. 54 at 8-11.
Target argues that it had no actual knowledge of a defect in the Multi-Cooker
because, before Ms. Perez purchased the Multi-Cooker, “Target had only one incident
in which a customer claimed being injured when using the same model Multi-Cooker.”
Docket No. 49 at 6. Moreover, Target argues that the “customer’s description of his
incident identified no defect with the model Multi-Cooker but rather just described the
incident.” Id.
Ms. Perez responds that the report Target received in May 2018 is “more than
sufficient to provide ‘actual knowledge’ under Colorado law.” Docket No. 54 at 9. Ms.
Perez asserts that the May 2018 report stated that the Multi-Cooker’s pot lid exploded,
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causing severe burns to the customer’s arm which required medical attention. Id. at 6,
¶ 13. Ms. Perez contends that the May 2018 report is “markedly similar” to what
happened to her. Id. at 9. Ms. Perez also asserts that Target was willfully blind to any
potential defect, which is sufficient to constitute actual knowledge. Id. at 9-10. On the
issue of whether the May 2018 report described a defect, Ms. Perez argues that,
although the customer “did not specifically identify the exact cause of the cooker’s
explosion, [the customer’s] description of the incident and subsequent injuries were
sufficient to place Target on notice that something was seriously wrong with cookers
they were selling.” Id. at 9.10
In its reply, Target argues that “the fact that an individual was injured in relation
to use of a product ‘does not establish that the product was defective or unreasonably
dangerous.’” Docket No. 56 at 8 (quoting Colo. Jury Instr., Civil § 14:7 and citing Kysor
Indus. Corp. v. Frazier, 642 P.2d 908, 911 (Colo. 1982); Shultz v. Linden-Alimak, Inc.,
734 P.2d 146, 148-49 (Colo. App. 1986); Kern v. Gen. Motors Corp., 724 P.2d 1365,
1366 (Colo. App. 1986); Davis v. Caterpillar Tractor Co., 719 P.2d 324, 327 (Colo. App.
1985)). Target contends that plaintiff’s argument would negate the innocent seller
10 Additionally, Ms. Perez argues that summary judgment is inappropriate
because a Colorado state district court held that “innocent seller status is itself a fact
question” that must be submitted to the jury. Docket No. 54 at 11 (citing Ingram v. Blue
Algorithm, 2018 WL 3732412, at *2 (Colo. Dist. Ct. Jan. 14, 2018)). However, the
district court in Ingram stated that “the determination whether Defendant is an innocent
seller within the meaning of section 402(1) is a factual matter and cannot be determined
as a matter of law by way of a motion to dismiss.” Ingram, 2018 WL 3732412, at *2.
Several courts in this District have granted summary judgment motions on the innocent
seller provision, determining that a seller was not a manufacturer under Colo. Rev. Stat.
§ 13-21-401. See, e.g., Bullock, 2010 WL 1380724, at *1; Mandy’s Ltd v. Salon &
Beauty Source, Inc., No. 15-cv-01571-WYD-MJW, 2016 WL 7868829, at *3-5 (D. Colo.
June 3, 2016). Accordingly, the Court rejects this argument.
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defense by making “any seller with knowledge of an injury involving a product into a
manufacturer of that product.” Id.11
The Court finds that Ms. Perez has failed to raise a genuine dispute of material
fact as to whether Target had actual knowledge of a “defect” in the Multi-Cooker. See
Colo. Rev. Stat. § 13-21-401(1). It is undisputed that Target received the May 2018
report before Ms. Perez bought the Multi-Cooker on November 23, 2018. See Docket
No. 49 at 2, ¶ 1. It is undisputed that no other entity or person communicated any
defect in the Multi-Cooker model to Target at any time before Ms. Perez purchased the
Multi-Cooker and the subject incident. Id. at 3-4, ¶ 15. The May 2018 report states
Guest was cooking vegetable soup when he used the pressure release valve and
let pressure release for 10 minutes. He then turned the handle and the crockpot
exploded, throwing vegetable soup everywhere and causing burns to the
guest[’]s arm. Medical attention was sought on day of incident, and a second
time during the healing process as they had concerns regarding the burns.
Guest has been out of work since the incident on doctors[’] orders and is set to
return 05/29/18. Crockpot was severely damaged.
Docket No. 49-3 at 1; see also Docket No. 54-3 at 2. The May 2018 report does not
identify any defect in the Multi-Cooker. Although the report indicates that the customer
was seriously injured and the Multi-Cooker was “severely damaged,” the report does not
disclose the nature of any technical, mechanical, or design flaw in the Multi-Cooker.
See Docket No. 49-3 at 1.12 The fact that a person is “injured” or that property is
11 Target asserts new facts in the reply regarding Target’s sales figures for the
Multi-Cooker. See Docket No. 56 at 7 n.2, 9 n.3. Target did not include these facts in
the Statement of Undisputed Material Facts section of its summary judgment motion.
Accordingly, the Court will not consider these facts undisputed because Target did not
properly raise the facts in accordance with the Court’s Practice Standards. See
Practice Standards (Civil Cases), Chief Judge Philip A. Brimmer, § III.F.3.b.i-ii.
12 Ms. Perez concedes that the May 2018 report “did not specifically identify the
exact cause of the cooker’s explosion.” Docket No. 54 at 9.
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“damaged,” “without more, does not establish that the product was defective.” See
Colo. Jury Instr., Civil § 14:7; see also Kysor Indus. Corp., 642 P.2d at 911 (“the fact
that, under certain circumstances, an accident may occur in connection with the use of
a product does not necessarily make the product defective.”). The Court finds that no
reasonable jury could find that the May 2018 report provided “actual knowledge of a
defect” in the Multi-Cooker because the May 2018 report did not disclose a defect. See
Mix v. Target Corp., 759 F. Supp. 2d 876, 881 (W.D. Tex. 2010) (holding that two
customers’ complaints, describing their children’s injuries from an infant seat, were
insufficient to establish “actual knowledge” of a “defect” under Texas’ innocent seller
statute because neither complaint “mentioned the ‘defect’ that allegedly resulted in
[plaintiff’s] injuries, that is, a lack of a seatbelt”).
Accordingly, it is undisputed that Target did not have “actual knowledge of a
defect” in the Multi-Cooker and therefore Target does not qualify as a “manufacturer”
pursuant to Colo. Rev. Stat. § 13-21-401(1). Under Colorado’s innocent seller statute,
“[n]o product liability action shall be commenced or maintained against any seller of a
product unless said seller is also the manufacturer of said product or the manufacturer
of the part thereof giving rise to the product liability action.” Colo. Rev. Stat. § 13-21-
402(1).13 Consequently, Target is an “innocent seller” under Colo. Rev. Stat. § 13-21-
13 Ms. Perez does not argue that any of her claims against Target fall outside of
the definition of a product liability action. Under the statute, a “product liability action” is
defined as “any action brought against a manufacturer or seller of a product, regardless
of the substantive legal theory or theories upon which the action is brought, for or on
account of personal injury, death, or property damage caused by or resulting from the
manufacture, construction, design, formula, installation, preparation, assembly, testing,
packaging, labeling, or sale of any product, or the failure to warn or protect against a
danger or hazard in the use, misuse, or unintended use of any product, or the failure to
provide proper instructions for the use of any product.” Colo. Rev. Stat. § 13-21-401(2)
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402(1) and is entitled to summary judgment on plaintiff’s claims. See Bullock, 2010 WL
1380724, at *4.
IV. 	CONCLUSION
For the foregoing reasons, it is
ORDERED that Target Corporation’s Motion for Summary Judgment [Docket No.
49] is GRANTED. It is further
ORDERED that plaintiff’s claims are DISMISSED with prejudice against Target.
It is further
ORDERED that Target is terminated from this case.
DATED September 29, 2023.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
(emphasis added). In addition to strict products liability claims, courts have found that
the following claims also fall within the innocent seller provision: negligence; violation of
the Colorado Consumer Protection Act; misrepresentation; breach of express warranty;
breach of implied warranty; and civil conspiracy. See Bullock, 2010 WL 1380724, at *2;
Mandy’s Ltd, 2016 WL 7868829, at *1, 5-6.
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