Barry Vaulton v. Polaris Industries, Inc. ( 2022 )

03/04/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 18, 2022 Session
BARRY VAULTON, ET AL. v. POLARIS INDUSTRIES, INC., ET AL.
Appeal from the Circuit Court for Jefferson County
No. 25442-IV O. Duane Slone, Judge
No. E2021-00489-COA-R3-CV
This appeal concerns an ATV (all-terrain vehicle) accident. Sam Vaulton, a minor, by his
parents, next friends and natural guardians, Barry Vaulton and Joy Vaulton, and Barry
Vaulton and Joy Vaulton, individually (“Plaintiffs,” collectively) sued Polaris Industries,
Inc. (“Polaris”) and Ritchie Power Sports, LLC (“Ritchie”) (“Defendants,” collectively) in
the Circuit Court for Jefferson County (“the Trial Court”) for injuries Sam Vaulton
received from the winch on his ATV (called “The General”). The General was
manufactured by Polaris and sold by Ritchie. Sam Vaulton lost his right index finger when
he directed his friend to push the “out” button on the winch-controls while Sam Vaulton
was holding the winch-hook and the cable went in rather than out. Defendants filed
motions for summary judgment, which the Trial Court granted. Plaintiffs appeal. We
affirm the Trial Court’s conclusion that there is no genuine issue of material fact as to
whether Plaintiffs were provided an owner’s manual or safety instructions; the undisputed
evidence shows they were provided. However, there are genuine issues of material fact as
to whether a tether was attached to the winch-hook and whether the General’s winch was
in a defective or unreasonably dangerous condition when it left Polaris’ control. We hold
further that the Trial Court erred in concluding at this summary judgment stage that Polaris
had no duty to attach a rubber stopper to the winch. We, therefore, reverse the Trial Court’s
grant of summary judgment to Defendants, and remand for further proceedings consistent
with this Opinion. The judgment of the Trial Court is thus affirmed, in part, and reversed,
in part.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed, in Part, and Reversed, in Part; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT
and THOMAS R. FRIERSON, II, JJ., joined.
Christopher T. Cain, Knoxville, Tennessee, for the appellants, Samuel Denver Vaulton, a
minor, by his parents, next friends and natural guardians, Barry Vaulton and Joy Vaulton,
and Barry Vaulton and Joy Vaulton, individually.
William R. Johnson and Shane Mayes, Marietta, Georgia, for the appellee, Polaris
Industries, Inc.
Joshua G. Offutt and Lucas E.W. Jerkins, Nashville, Tennessee, for the appellee, Ritchie
Power Sports, LLC.
OPINION
Background
On March 7, 2018, Plaintiffs sued Defendants in the Trial Court. Plaintiffs alleged
that on March 7, 2017, Sam—then age 14—suffered “the traumatic amputation of his index
finger at the proximal inter-phalangeal joint of his dominant right hand” because the
General’s “defective and unreasonably dangerous winch system” pulled his finger off. The
General is a 2017 Polaris General 1000 ATV. Polaris manufactured the General. Ritchie
sold the General to Plaintiffs in November 2016. In their complaint, Plaintiffs alleged that
“[t]he accident was the sole and proximate result of the negligence, failure to warn, and the
manufacture and sale of a defective and unreasonably dangerous product, and breach of
warranties both express and implied, by the Defendants.” Plaintiffs asserted claims of
negligence, breach of warranties, and strict liability against Defendants. Ritchie and
Polaris each filed an answer denying liability, with Polaris asserting available defenses
under the Tennessee Products Liability Act, Tenn. Code Ann. §§ 29-28-101 to -108 (“the
TPLA”). Discovery ensued. In March 2020, Ritchie filed a motion for summary judgment.
In May 2020, Polaris filed its own motion for summary judgment. Plaintiffs filed responses
to each motion. In September 2020, Polaris filed three affidavits, various deposition
transcripts, and videotape footage of a July 2019 inspection of the General.
In his deposition, Sam Vaulton described the run-up to his accident as well as the
accident itself as follows:
Q. Did you ever talk about how [the winch] should be used between
November of 2016 and the date of the incident?
A. No, sir.
Q. Did you ever read any instructions or warning manuals?
A. We never got a owner’s manual.
Q. Okay. So when you say that, I want to make sure I’m understanding. On
the day you were there, you never got an owner’s manual?
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A. No.
Q. And you weren’t there on the day that your dad picked it up; is that
correct?
A. Yes, sir.
Q. And so you don’t know if you had an owner’s manual that day because
you weren’t there; is that true?
A. Yes, sir.
Q. Okay. But -- so you didn’t get a warning manual; is that what you’re
telling me? At least on that date, November 2016, you didn’t, you didn’t get
one, correct?
A. Yes, sir. I never remember seeing one.
Q. Okay. Fair enough. Let’s talk about the other ones that you have, the
other ATVs that you’ve used, the RZR and the Rhino and the MULE and the
Kubota. Did you ever see any warnings, any type of guides or warning
manuals?
A. I don’t remember.
Q. Did you ever see any owner’s manuals for any of those?
A. I don’t remember, sir.
Q. Do you ever remember speaking with your father at any time regarding
the use of a winch and how a winch should be used on the General?
A. Not on the General, but he’s taught me like as growing up how to use it.
***
Q. Okay. And I want to make sure I understand your testimony. Is it your
testimony that you did not see a tie strap at any time on the vehicle that you
went and purchased with your father on November 26th of 2016?
A. Yes, sir.
***
Q. -- March 7th, 2017. On that date you and your friend….
A. Yes, sir.
Q. -- were out. I think you were returning a dog to a neighbor; is that
accurate?
A. That’s correct.
Q. And after you returned the dog to your neighbor, hopefully not driving
through the front yard of your father’s and mother’s home, when you
returned the dog, you saw that, as I believe you said, that something was
messed up with the winch; is that right?
A. The winch just looked too close to the metal bars on there so I thought it
-3-
looked stuck a little bit.
Q. Had you ever noticed it looking stuck before?
A. No.
Q. Had you ever --
A. I hadn’t really paid attention to it. It was just something like you just
caught your eye when you were walking by it. I wasn’t even planning on
using it. I just thought I’d fix it.
***
Q. Okay. So did you make sure that that’s -- so you put your hand like that
on the hook and the winch on that morning?
A. Yes.
Q. And that when your hand was like that -- it was your right hand -- right?
A. Correct.
Q. -- right? It was like that, right?
A. Yeah.
Q. So it was like that and you said press the out button?
A. Correct.
Q. And when you said that, then the winch pulled it in, correct?
A. Yeah. So it was kind of like that and then it pulled it in, got smashed off
between those two bars. This thing went through there and smashed it off
between the top.
***
Q. November 20th of ‘18, this was taken during that inspection. I’ll represent
that to you, but have you ever seen that before?
A. No.
Q. Okay. And you don’t recall seeing these warnings, correct?
A. Correct.
Q. Okay. Had you seen these warnings, would it have changed the way you
handled things that day?
A. Probably not because I don’t know what else I would have done.
Q. Okay.
A. I didn’t -- we didn’t have the book to read anyway on the blue, the blue
picture.
Q. Oh, I see. So if you would have had that book, then you probably would
have gone to that book and read it; is that right?
A. No, I probably wouldn’t have gone to it, but I don’t know what I could
have done differently than what I did.
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Barry Vaulton, Sam’s father, also testified via deposition. One issue on appeal
relates to whether a rubber stopper is a safety device and whether Polaris had a duty to
install one on the General. Barry Vaulton testified, among other things, to his view that a
rubber stopper—which the General lacked—is a safety device. He also testified to having
never received safety instructions for the General or its winch:
Q. Okay. And if Ritchie Power Sports, someone from Ritchie Power Sports
had given you instructions on the safe use of the winch, is it your testimony
that you would have at least gone over that with Sam?
A. Yes. I would have -- let me say this. If I would have noticed that there
hadn’t been a tether on the machine, I would have never left the dealership
without a tether because I felt like that would have been owed to us. All
right? If I would have seen that machine, that hook in the condition that Sam
saw it in, I would have made sure that -- I would have fixed it. Now, whether
the tether had been on it or not, I would have probably got him a tether or
made something. ‘Cause I do realize how important that is. There just never
was noticed that there wasn’t a tether ‘cause it had never been used.
***
Q. And you’ve testified under oath that the tether on the winch, there should
always be a tether and that every, every winch that’s in operation on your
farm and your businesses or whatever has a tether on it?
A. That’s correct.
Q. Correct? How many of the winches that are in operation on your farm or
in your businesses or even at home have the winch stop dog on it?
A. Just about every one of them.
Q. They all have a winch stop dog?
A. Matter of fact, on our -- when Sam was trying to talk about the truck
yesterday, it actually, whenever it touches the rollers, it disengages the
winch.
Q. Okay.
A. So that way it’s not -- it doesn’t damage the winch. Let’s just say.
Q. So is that something that you had to buy separately?
A. It came with the equipment.
Q. It comes with the equipment?
A. Uh-huh.
Q. Okay. And so can you describe for me what you mean again by a winch
stop dog? I just want to make sure I understand it.
A. It’s a protective device that’s put between -- I guess you would call that
the hook feral like where the cable goes around the feral. It goes between
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the front of the -- or the back of the hook and keeps it from -- keeps this from
going into the rollers.
***
Q. And I think you called it a winch stop dog, correct?
A. I think that’s -- yes, I did.
Q. And so do you know what that -- and is it some of them are rubber stops,
right?
A. That’s correct.
Q. Do you know what it’s designed for?
A. I would imagine it would be designed to keep the hook from going up into
the rollers.
Q. If I told you that the rubber stop is designed to be like a shock absorber
and to protect the rollers, would that, would you have any reason to dispute
that?
A. No, sir.
Q. And if I told you that it would -- it’s to hold the hook in place when the
UTV is underway so the hook doesn’t bounce around and damage parts,
would you have any reason to dispute that?
A. No, sir.
Q. Have you done any research or work into that, to look in that --
A. No, I have not done --
Q. -- other than what we’ve talked about today?
A. I was -- I just assumed from previous experience, that’s what it was for.
***
Q. Okay. Did you check your vehicle or check the packet that they gave, any
packet that Ritchie Brothers gave you to see if you did receive the owner’s
manual?
A. My wife keeps very good records. She has everything in a file. And we
pulled the file out and there was not anything. And that’s the truth. So --
Ruben Pacleb (“Pacleb”) assembled the General. Pacleb, a mechanic, worked for
Ritchie from 2013 until 2019. Ritchie has since gone out of business. Pacleb testified to
a possible cause of the accident; his disagreement with the Vaultons that safety instructions
did not come with the General; and his view that a rubber stopper is not a safety device:
Q. What -- based on your, I guess, looking at the winch that day [of a post-
accident inspection], what did you conclude about the winch?
-6-
A. The winch -- there’s a possibility that the winch was not guided in
properly. It went reverse on the spool and now the in is out and the out is in.
Q. And how does that occur?
A. If you don’t keep constant pressure on it to guide the winch in, it can kink
on itself. The cable can go backwards on itself and now it’s reversed.
Q. So no matter what direction you push the button, it will go in rather than
out?
A. Yeah.
Q. And that’s because that’s a function of the wire getting kinked?
A. Yes.
***
Q. You’ll agree with me that you did not, when you saw the vehicle on
November 2018 [on a post-accident inspection], it did not have a tether strap?
A. No tether strap.
***
Q. Did the General that’s at issue, did it come to Ritchie Sports
preassembled?
A. No.
Q. Did you partake or take part in the assembly of it?
A. Yes.
Q. So that is one of the jobs that you have. One of your duties as a mechanic
is to assemble the vehicles when they were delivered?
A. Yes.
Q. Do you have a specific recollection of assembling this ATV, the General?
A. No.
Q. As we sit here today, can you tell me whether it came with a tether strap
or not?
A. They all come with a tether strap.
Q. Do you recall that specifically with this one?
A. Every one that I’ve dealt with with the General when they first came out
or pre-installed factory winches, other than the High Lifters, come with a
tether strap.
Q. And do you recall putting this on?
A. It’s already on from the factory.
Q. And you recall that specifically being the case with this General?
A. Yeah. I just look through the whole unit and make sure they have the
proper equipment on it. And I haven’t come across one that hasn’t had one
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that’s supposed to have one.
Q. You agree they are supposed to have one?
A. Well, not -- well, it should have one.
Q. And that’s a safety feature?
A. Yes.
Q. Yes?
A. Yes.
Q. Because you don’t want people putting their fingers in the hooks.
A. Yes.
Q. And if there was no strap, that’s what they’re left to do?
A. Yeah.
Q. Is that correct?
A. Yes.
Q. If the Vaultons say there was no strap on this vehicle when they took
possession of it, they would be wrong about that?
A. Yes.
Q. Okay. And if there wasn’t one at the time of this accident, it means it
either fell off or they took it off, in your mind, is that correct?
A. Yes.
***
Q. When you assemble the vehicle -- strike that. Does the -- when delivered,
does the vehicle come with an owner’s manual?
A. Yes.
Q. Okay. When you assemble it, what do you do with it?
A. It’s in the glove box.
Q. And do you recall whether it was in the glove box in this case?
A. Yes.
Q. You have that specific recollection?
A. I specifically know that.
Q. Okay. Did it come with a safety DVD?
A. Yes.
Q. And where was that?
A. That was in the glove box.
Q. And if the Vaultons say that there was no owner’s manual in the glove
box, they would be wrong about that as well?
A. Yes.
Q. If they say there was no safe[t]y DVD, they would be wrong about that?
A. Yes.
-8-
***
Q. If you’ll turn to page 55, is there reference, by the way, in this winch guide
to what you -- what you found as to the kinking in this winch and if it’s
kinked a certain way, it’s going to go in regardless of whether you push out
or in. Is there any reference to that in here?
A. I will have to read through the whole thing.
Q. Okay. Go ahead.
MR. SNYDER: And I’ll note my objection. No foundation. Lack of
foundation for this witness. Calls for speculation.
THE WITNESS: No. It doesn’t say anything about its reverse spooling,
which occurs a lot.
BY MR. CAIN:
Q. And that’s something that can cause some injuries, can’t it?
A. Yes. It happened to me three times on my unit.
***
Q. So at some point after it left -- left your hands where it had a hook and a
tether strap, from the time it was delivered to the Vaultons to that date, at
some point in time the tether strap was removed, is that accurate?
MR. CAIN: Object to the form.
THE WITNESS: Correct.
***
Q. Okay. Thank you. Now, you were asked a couple questions by Mr. Cain
regarding the winch cable, right?
A. Correct.
Q. Do you remember seeing a kinked or some deformities or whatever in the
winch, in the winch cable on the date you were out there?
A. Yes.
Q. Is it possible that those winch deformities -- we’ll call them kinks for
purposes of today -- could have happened without that winch ever being
used, ever?
A. Impossible.
Q. Okay. So, if someone said that this was the very first time that the winch
was used, they would be mistaken?
A. Correct.
Q. That’s because it’s impossible for those kinks to be in there as
demonstrated if it had never been used before, is that accurate?
-9-
MR. CAIN: Object to the form.
THE WITNESS: Correct.
BY MR. SNYDER:
Q. Okay. You discussed in response to Mr. Cain’s questions about these, the
rubber stopper, and I think you said that if there’s a synthetic line or some --
maybe it wasn’t synthetic, if it was a different type of cable, you might have
a stopper on it, correct?
A. Correct.
Q. What kind of a winch cable was on the General?
A. Steel cable.
Q. Would a steel cable have the type of stopper that you were provided earlier
today? I think it was 14 or 15. Would those have those type of a stopper on
it?
A. On cables, no.
Q. And why is that, sir?
A. Because the cables don’t stretch and the cable cuts that stopper.
Q. Okay. And do you even know why stoppers are put on winches? Do you
have any firsthand knowledge, sir, of why companies would do that?
A. To keep the rattle down from the hook.
Q. Okay. So, it’s not for safety purposes, it’s to keep the rattle down from
the hook rattling back and forth as the vehicle is being operated, is that
accurate?
A. Correct.
***
Q. So there was a period of time from the time where you had completed
your work and the time they picked it up, and you don’t know what happened
to the vehicle during that time, is that correct?
A. Correct.
Q. So you don’t know whether somebody took the tether off then or whether
it fell off before then, correct?
A. Correct.
Q. So it’s possible that it was not there when they received it, correct?
A. Correct.
Q. And it’s possible, also, that the owner’s manual and the DVD weren’t
present, correct?
MR. SNYDER: Objection. Speculation.
THE WITNESS: That was there.
MR. SNYDER: Contrary to the witness’ testimony.
BY MR. CAIN:
-10-
Q. You know for a fact what?
A. That thing was there when we did the inspection. When we did the
inspection in November, it was in there.
Q. I’m talking about November 2018. But I’m asking about the time when
they took delivery of it, correct, you don’t know?
A. Yeah. I don’t know.
Laci Coker-Lavan (“Coker-Lavan”), a salesperson at Ritchie from 2011 through
2019, also was deposed. Coker-Lavan sold the General to the Vaultons, but she could not
specifically remember any discussions she had with them about it. Coker-Lavan stated, in
part:
Q. Okay. So, as far as whether there was a tether strap on the hook, you don’t
know whether there was?
A. No.
Q. Okay. You don’t know whether there was an owner’s manual in the glove
box, do you?
A. No.
Q. You don’t know whether there was a DVD in the glove box?
A. No.
Q. You don’t know whether there was ever a DVD in the glove box?
A. No.
Q. You don’t know that there was ever an owner’s manual in the glove box?
A. Not for a fact.
Q. Okay. You don’t know whether there was ever a tether strap on the hook
to the winch, correct?
A. Correct.
Q. Okay. You do know that the winch did not come with a safety stop,
correct?
A. Correct.
Q. All right.
MR. SNYDER: Objection.
BY MR. CAIN:
Q. Do you know what a safety stop is?
A. Is it the rubber piece that goes behind the hook?
Q. Yes.
A. Yes.
Q. Do you know what those are?
A. Yes.
Q. How do you know what they are?
A. Because I’ve sold winches.
-11-
Q. And it’s a fairly common thing with winches, correct?
A. Yes.
Q. Does it come with certain type of winches only?
A. Yes. I believe that’s correct.
Q. What type of winches does it come with?
A. With the Polaris, like, they’re PRO HD models, I believe have the actual
safety -- the auto stop technology on those.
Q. Okay. That’s a safety feature?
A. Yes.
Q. All right.
MR. SNYDER: Objection. Calls for speculation.
BY MR. CAIN:
Q. And what safety is it providing?
MR. SNYDER: Objection. Calls for speculation.
BY MR. CAIN:
Q. Go ahead.
A. What safety is it providing?
Q. Yes.
A. Not rolling the hook too far into the winch.
Q. Keeping your finger out of there, correct?
A. Fingers, hooks.
MR. SNYDER: Objection. Calls for speculation.
BY MR. CAIN:
Q. Is that correct?
A. Yes.
Q. Okay. And what type of vehicle did you say it came on, the Polaris what?
A. The winch itself with the auto stop, I think is the PRO HD winch model.
Q. Is that an ATV?
A. No, that’s the winch itself.
Q. Okay. What does it come on? Does it come on any vehicles?
A. I don’t believe it’s factory installed in Polaris models.
Q. So it’s an add-on?
A. Yes. It’s a specific winch.
Q. And is it something that the customer has to request?
A. Yes. It’s an accessory.
Q. Okay. It doesn’t come from the manufacturer as stock on part of any
vehicle, is that correct?
A. I don’t believe so.
***
-12-
Q. You’ll agree with me that everything above the Delivery to Customer box
was completed by Ruben?
A. Yes.
Q. Let’s talk about the Delivery to Customer box there. There is nothing
checked there, correct?
A. Correct.
Q. On the right, it has dealership name. That’s blank, right?
A. Yes.
Q. And then dealer number, that’s blank?
A. Yes.
Q. Selling dealer, signature is blank?
A. Yes.
Q. And the date is blank?
A. Yes.
Q. Is that typically filled out?
A. Supposed to be.
Q. Okay. Who’s supposed to fill that out?
A. The salesperson.
Q. You, in this case?
A. Yes.
Q. Do you know why it wasn’t filled out in this case?
A. No.
Q. All right. Is it because these things weren’t done? You don’t know?
A. I don’t know.
Q. But if you had done these things, you would have checked it off and
signed, right?
A. Yes.
Q. Because you didn’t do that, we can assume it wasn’t done?
A. Generally, when I deliver a machine to the customer, I do go over all this
and I have not always had the customer sign.
Q. Well, I’m talking about the part that you sign. You didn’t sign this,
correct?
A. Correct.
Q. All right. And because of that, can we infer that you didn’t do those things
with the customer here?
A. If I -- if the customer was -- if I did the delivery with the customer, I would
have gone over these things.
Q. And you would have signed it?
A. I did not always sign these, no.
Q. You would have gotten the customer to sign it?
A. I did not always get the customer to sign them.
-13-
Q. Are you saying that you went over these things with the Vaultons?
A. I don’t know.
In April 2021, the Trial Court heard Defendants’ motions for summary judgment.
The same month, the Trial Court entered an order granting summary judgment in favor of
Defendants. In its order, the Trial Court stated, in relevant part:
As it pertains to Ritchie Power Sports, LLC’s Motion for Summary
Judgment, Ritchie Power Sports submits that Plaintiffs’ claims do not fall
under any statutory exception under T.C.A. § 29-28-102 through 106
whereby a seller may be held liable in a product liability action. Plaintiffs
argue that Ritchie Power Sports was negligent in failing to provide the 2017
Polaris General 1000 to the Plaintiffs equipped with a tether strap on the
winch hook. Additionally, Plaintiffs argue that Ritchie Power Sports
negligently failed to provide a user manual or safety instructions to Plaintiffs
at the time of the purchase.
This Court finds, in a light most favorable to the non-moving party
(Plaintiffs), that a tether strap was in place on the 2017 Polaris General 1000
at the time of delivery to Ritchie Power Sports and remained on the
equipment until it was purchased by Plaintiff Barry Vaulton. Further, this
Court finds that there was no alteration or modification as to the owner’s
manual and that it was where it was supposed to be when Plaintiffs took
possession of the 2017 Polaris General 1000. Being that there are no issues
before the Court where Ritchie Power Sports can be held liable, this Court
finds its Motion for Summary Judgment is well-taken and therefore must be
GRANTED.
Polaris Industries, Inc. likewise relies on the law governed by T.C.A.
§ 29-28-101 through 108 as it pertains to the manufacturer’s liability for
negligence and Plaintiffs’ requirement to show that the winch system of the
2017 Polaris General 1000 was in either in a “defective condition” or
“unreasonably dangerous” at the time it left Polaris’s control. Plaintiffs
argue that the winch was defective and/or unreasonably dangerous because
it lacked a rubber stopper and because it had the ability to “reverse spool,”
and, in this instance, did “reverse spool.”
Viewing the evidence in the light most favorable to the non-moving
party (Plaintiffs), this Court finds that there are no genuine issues of material
fact regarding either of Plaintiffs’ defect theories. Regarding the rubber
stopper, this Court finds that Polaris did not have a duty to install a rubber
stopper as a safety device on the type of winch at issue in this litigation.
Regarding Plaintiffs’ “reverse spooling” defect theory, this Court finds that,
notwithstanding Polaris’s spoliation argument, there is no evidence in the
-14-
record that the winch cable was “mis-spooled” or “reverse spooled.”
Plaintiffs have not presented record evidence that would support a verdict on
a “reverse spooling” defect theory and therefore have failed to demonstrate
they are entitled to a jury trial on such issue.
Even when construing the evidence in a light most favorable to the
Plaintiffs, the Court finds there are no genuine issues of material fact
supporting any of Plaintiffs’ theories of recovery against Polaris. Therefore,
Polaris Industries Inc’s Motion for Summary Judgment is well-taken and
shall be GRANTED.
It is therefore ORDERED, ADJUDGED and DECREED that there
are no genuine issues of material fact to support any theory of recovery for
Plaintiffs and the Defendants, Ritchie Power Sports, LLC and Polaris
Industries, Inc.’s, Motions for Summary Judgment are hereby granted, and
this matter shall hereby be dismissed with prejudice. All court costs
associated with this matter shall be taxed to Plaintiffs.
Plaintiffs timely appealed to this Court. However, Plaintiffs had an outstanding request for
attorney’s fees and expenses, which the Trial Court had taken under advisement.
Consequently, this Court entered a show cause order concerning the finality of the
judgment below. Plaintiffs voluntarily withdrew their request for attorney’s fees and
expenses, and the Trial Court entered an order reflecting that the issue of Plaintiffs’
attorney’s fees and expenses was moot.
Discussion
Although not stated exactly as such, Plaintiffs raise the following issues on appeal:
1) whether the Trial Court, as part of its grant of summary judgment in Ritchie’s favor,
erred in determining there was no genuine issue of material fact as to whether the winch-
hook came with a tether attached; 2) whether the Trial Court, as part of its grant of summary
judgment in Ritchie’s favor, erred in determining there was no genuine issue of material
fact as to whether Ritchie failed to provide Plaintiffs with an owner’s manual or safety
instructions; 3) whether the Trial Court, as part of its grant of summary judgment in Polaris’
favor, erred in determining there was no genuine issue of material fact as to whether the
General’s winch reverse-spooled; and 4) whether the Trial Court, as part of its grant of
summary judgment in Polaris’ favor, erred in finding Polaris had no duty to attach a rubber
stopper to the otherwise defective or unreasonably dangerous winch.
Regarding the standard of review on motions for summary judgment, our Supreme
Court has instructed:
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Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Tenn.
R. Civ. P. 56.04. We review a trial court’s ruling on a motion for summary
judgment de novo, without a presumption of correctness. Bain v. Wells, 936
S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare–
Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a
fresh determination of whether the requirements of Rule 56 of the Tennessee
Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d
193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d
453, 471 (Tenn. 2012)).
***
[I]n Tennessee, as in the federal system, when the moving party does not bear
the burden of proof at trial, the moving party may satisfy its burden of
production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s
evidence at the summary judgment stage is insufficient to establish the
nonmoving party’s claim or defense. We reiterate that a moving party
seeking summary judgment by attacking the nonmoving party’s evidence
must do more than make a conclusory assertion that summary judgment is
appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving
party to support its motion with “a separate concise statement of material
facts as to which the moving party contends there is no genuine issue for
trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a separate,
numbered paragraph and supported by a specific citation to the record.” Id.When such a motion is made, any party opposing summary judgment must
file a response to each fact set forth by the movant in the manner provided in
Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made
[and] . . . supported as provided in [Tennessee Rule 56],” to survive summary
judgment, the nonmoving party “may not rest upon the mere allegations or
denials of [its] pleading,” but must respond, and by affidavits or one of the
other means provided in Tennessee Rule 56, “set forth specific facts” at the
summary judgment stage “showing that there is a genuine issue for trial.”
Tenn. R. Civ. P. 56.06. The nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The
nonmoving party must demonstrate the existence of specific facts in the
record which could lead a rational trier of fact to find in favor of the
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nonmoving party. If a summary judgment motion is filed before adequate
time for discovery has been provided, the nonmoving party may seek a
continuance to engage in additional discovery as provided in Tennessee Rule
56.07. However, after adequate time for discovery has been provided,
summary judgment should be granted if the nonmoving party’s evidence at
the summary judgment stage is insufficient to establish the existence of a
genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The
focus is on the evidence the nonmoving party comes forward with at the
summary judgment stage, not on hypothetical evidence that theoretically
could be adduced, despite the passage of discovery deadlines, at a future trial.
Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).
We first address whether the Trial Court, as part of its grant of summary judgment
in Ritchie’s favor, erred in determining there was no genuine issue of material fact as to
whether the winch-hook came with a tether attached. Ritchie argues that, as a “Seller”
under Tenn. Code Ann. § 29-28-102(7), Plaintiffs’ products liability claim against it cannot
survive unless it alleges and proves one of five statutory exceptions under Tenn. Code Ann.
§ 29-28-106. The exception pertinent to this appeal is the second statutory exception,
whereby a Seller alters or modifies a product and the alteration or modification was a
substantial factor in causing the harm for which the recovery of damages is sought. Tenn.
Code Ann. § 29-28-106(2). Ritchie asserts no alterations or modifications were made to
the winch as it was pre-installed. Ritchie argues further that Plaintiffs failed to make out a
claim for ordinary negligence against it. In their reply brief, Plaintiffs respond as follows:
“There can be no dispute that the crux of this issue is whether a tether-strap was in place
on the winch at the time of delivery to Ritchie and remained there until it was purchased
by the Plaintiffs. If Ritchie detached the tether … it would be an alteration or modification
of the winch….” Plaintiffs argue the second exception of Tenn. Code Ann. § 29-28-106applies because Ritchie’s alleged removal of the tether-strap from the winch-hook
constitutes an alteration or modification of the winch and was a substantial factor in causing
Sam Vaulton to lose his right index finger. Plaintiffs also contend that Ritchie is mistaken
in characterizing Plaintiffs’ claim against it as being brought only under the TPLA;
Plaintiffs point out that they asserted claims for negligence, breach of warranty, and strict
liability against both Defendants.
Plaintiffs cite the following evidence in support of their contention that there is a
genuine issue of material fact for a jury to resolve with respect to whether the winch came
with a tether and whether a tether was in place on the winch-hook when the General was
delivered to Plaintiffs: Plaintiffs never saw a tether strap on the winch; Sam Vaulton
testified no tether strap was attached to the winch; the Vaultons did not use the winch until
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the day of the accident; Pacleb testified he did not know whether the tether had fallen off
or had been taken off the winch before Plaintiffs took delivery of the General; Coker-Lavan
testified she could not say whether the General came with a tether-strap attached to the
winch-hook; and during a November 2018 inspection of the General, it was discovered that
no tether strap was attached to the winch-hook. Against this, Ritchie argues that the
inferences drawn from the testimony support only one conclusion—that a tether strap was,
indeed, attached to the winch when it left the seller. Ritchie points to Pacleb’s testimony
that he has never come across a Polaris General model that did not have a tether strap.
Ritchie also points to Barry Vaulton’s testimony that he would have not left the dealership
if he noticed the winch lacked a tether strap.
If inferences were drawn in Ritchie’s favor, the evidence Ritchie cites to would tend
to support its position that a tether strap was in place on the General’s winch when it left
the seller. However, this case was disposed of by summary judgment, and inferences are
to be drawn in favor of Plaintiffs as the non-moving parties. Plaintiffs’ testimony that they
never saw a tether strap attached to the General, that this was the first time the winch was
used, and that a post-accident inspection revealed no tether strap, all support an inference
that a tether strap was not attached to the winch-hook when it left the seller, which in turn
supports Plaintiffs’ theory that Ritchie modified or altered the General. Meanwhile,
although Pacleb testified he never encountered a Polaris General Model without a tether
strap on its winch, he could not state specifically that the General at issue had a tether strap
when it was delivered to Plaintiffs. We do not weigh evidence at the summary judgment
stage. A genuine issue of material fact thus exists as to whether the General’s winch came
to Ritchie with a tether attached and whether there was a tether attached at the time of
delivery to Plaintiffs. We, therefore, reverse the Trial Court as to this issue.
We next address whether the Trial Court, as part of its grant of summary judgment
in Ritchie’s favor, erred in determining there was no genuine issue of material fact as to
whether Ritchie failed to provide Plaintiffs with an owner’s manual or safety instructions.
Plaintiffs point to deposition testimony by Barry and Sam Vaulton to the effect they never
received an owner’s manual or safety instructions. Ritchie argues in turn that the affidavits
and deposition testimony reveal there was an owner’s manual and a safety DVD in the
General’s glove box. Ritchie argues further that, even if it did not provide Plaintiffs with
these materials, Plaintiffs failed to show that such a failure would amount to an alteration
or modification that was a substantial factor in causing the harm to Plaintiffs.
Resolution of this issue requires a careful examination of the evidence. In their
response to Ritchie’s Statement of Undisputed Material Facts, Plaintiffs stated:
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5. Ruben Pacleb located the owner’s manual in the glove compartment of the
Polaris General at the post-accident inspection in November 2018. (Depo of
Ruben Pacleb p. 138, lines 2 — 12.
RESPONSE: Disputed. Mr. Pacleb admittedly does not know whether the
owner’s manual was with the General at the time the Vaultons took delivery.
Ruben Pacleb Deposition, p. 138. Further, the Pre-Delivery Inspection Form
associated with the Vaultons’ purchase of the General does not reflect that
they were provided an owner’s manual and each of the Vaulton Plaintiffs
deny receiving an owner’s manual. Plaintiffs’ SAMF, ¶¶ 16 and 46-49,
Exhibit A thereto. Finally, Mr. Pacleb claims he (and that Polaris’ lawyers
and a Polaris tech) took photographs/video of the owner’s manual in the
glove box in November of 2018 at the inspection of the General. Plaintiffs’
SAMF, ¶¶ 33-39. Mr. Pacleb claims he deleted these photographs and, to
date, not a single photograph or video has been produced depicting what Mr.
Pacleb claims was documented by any number of people. Plaintiffs’ SAMF,
¶¶ 33-39.
For their part, Plaintiffs assert the following evidence in support of their contention
that a genuine issue of material fact exists concerning whether they received any safety
instructions: the Vaultons testified they never received an owner’s manual; Pacleb
conceded he did not know whether the owner’s manual was with the General when the
Vaultons took delivery; Coker-Lavan testified she could not say whether or not the General
came with an owner’s manual; Ritchie’s own “Pre-Delivery Inspection Form” for the
General indicated Ritchie did not provide the Vaultons with an owner’s manual; there were
no warnings or labels on the winch according to Sam Vaulton; the Vaultons did not remove
any warnings off the General; Ritchie did not give the Vaultons any safety instructions;
nobody at Ritchie instructed the Vaultons on how to use the winch properly; and finally,
according to Ritchie’s “Pre-Delivery Inspection Form” for the General, Ritchie did not
review the General’s safety features with the Vaultons or perform a pre-delivery inspection
as otherwise Coker-Lavan would have checked the corresponding boxes on the form and
signed it.
For its part, Ritchie cites Pacleb’s testimony that he specifically knows that the
owner’s manual was in the General’s glove box; that, per affidavits, Staff Field Investigator
Thomas Lancaster attended the inspection on November 20, 2018 and observed a 2017
Polaris General 1000 Owner’s Manual and a Polaris Safety DVD in the glove box; that
Polaris retained Todd Walstrom to examine the 2017 Polaris General on July 23, 2019 and
he observed a 2017 Polaris General 1000 Owner’s Manual and a Polaris Safety DVD in
the glove box; that Plaintiffs retained Paige Pendleton to film an inspection of the 2017
Polaris General on July 23, 2019 and she, too, observed an owner’s manual and a Polaris
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Safety DVD in the glove box. Ritchie argues further that the blank “Delivery to Customer”
section of the “Pre-Delivery Inspection” is not proof of anything. Ritchie observes that
Plaintiffs are not arguing, for example, that they did not receive the keys to the General
just because that portion of the inspection was left blank.
In their brief, Plaintiffs strenuously assert that “whether Plaintiffs were provided
with an owner’s manual, much less safety instructions on how to operate the winch, is very
much disputed.” (Emphasis in original). However, this record contains no evidence
reflecting a dispute. While the Vaultons testified they never received an owner’s manual
or safety instructions, the post-accident inspection shows the owner’s manual and safety
DVD were located in the General’s glove box in Plaintiffs’ possession. As we stated in
our discussion of the previous issue, we do not weigh the evidence at the summary
judgment stage. However, if there is no genuine issue of material fact in dispute, there is
nothing to weigh as there is no conflict. This is so even if a non-moving party conclusorily
asserts a material dispute exists but fails to point to evidence of such a dispute in the record.
None of the evidence Plaintiffs cite to in the record conflicts with the evidence showing
that the owner’s manual and safety DVD were located in the General’s glove box in
Plaintiffs’ possession. Instead, Plaintiffs simply point out that the inspection took place
some 20 months after the incident. Nevertheless, Plaintiffs cite no evidence showing that
the safety instructions were, for example, planted in the General after the incident.
Plaintiffs’ generic assertions that they did not receive the items do not create a genuine
issue of material fact. Plaintiffs’ mere stated non-receipt of an owner’s manual and safety
instructions is not the dispositive question—if, as the undisputed evidence reflects, the
owner’s manual and safety instructions were located in the General’s glove box in
Plaintiffs’ possession, these safety instructions were at Plaintiffs’ disposal whether they
chose to avail themselves of them or not. Plaintiffs did not testify, for instance, that “we
looked in the glove box and did not see an owner’s manual or any safety instructions.”
In order to benefit from a favorable inference as the non-moving parties at the
summary judgment stage, Plaintiffs still must point to evidence in the record supporting
that inference. Likewise, Plaintiffs may not rest on the mere possibility that a jury would
not credit undisputed evidence of the location of the safety materials. If all a non-moving
party needed to do to withstand summary judgment was point to the possibility that a jury
might not credit an affiant’s statement or a deponent’s testimony, summary judgment under
Tenn. R. Civ. P. 56 would be rendered hollow. Plaintiffs point to no facts in the record
contradicting that the owner’s manual and safety DVD were located in the General’s glove
box. Barring any such evidence, we are left solely with the evidence showing that the
owner’s manual and safety DVD were located in the General’s glove box. No genuine
issue of material fact requiring resolution by the jury exists regarding the owner’s manual
and safety DVD; the undisputed evidence shows the owner’s manual and safety DVD were
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located in the General’s glove box in Plaintiffs’ possession. We affirm the Trial Court on
this issue.
We next address whether the Trial Court, as part of its grant of summary judgment
in Polaris’ favor, erred in determining there was no genuine issue of material fact as to
whether the General’s winch reverse-spooled. Plaintiffs argue that the Trial Court “failed
to accept as true Plaintiffs’ evidence indicating that not only had the General’s winch-cable
reverse-spooled on Sam Vaulton, but that Ritchie mechanic Pacleb, who assembled the
General, and at least one Polaris employee, had actually experienced similar reverse-
spooling.” Plaintiffs cite the “consumer expectation test,” which our Supreme Court has
described as an assessment of “whether the product’s condition poses a danger beyond that
expected by an ordinary consumer with reasonable knowledge….[p]ut another way, under
this test, a product is not unreasonably dangerous if the ordinary consumer would
appreciate the condition of the product and the risk of injury.” Tatham v. Bridgestone
Americas Holding, Inc., 473 S.W.3d 734, 750 (Tenn. 2015) (internal brackets, citations,
and quotation marks omitted). Plaintiffs argue that the General’s winch was defective or
unreasonably dangerous. In response, Polaris argues that there is no evidence in the record
that any defect existed in the winch at the time it left Polaris’ control that could have caused
it to reverse-spool at the time of Sam Vaulton’s accident. Polaris dismisses Pacleb’s
testimony as “speculative.”
We disagree with Polaris that Pacleb’s testimony was just “speculative.” Pacleb
testified specifically to his own experiences with reverse-spooling. In so doing, he
articulated a possible explanation for what caused Sam Vaulton’s accident. At oral
arguments, counsel for Polaris argued that the evidence in the record as to reverse-spooling
proves that the winch must have been used by Plaintiffs or a third party prior to Sam
Vaulton’s accident. However, Sam Vaulton testified specifically that the winch had never
been used before the accident. Thus, there is evidence in the record to support that Sam
Vaulton’s accident could have been caused by the General’s winch being reverse-spooled
and that the winch had never been used before the accident. Polaris’ theory that someone
else used the winch before Sam Vaulton’s accident, despite Plaintiffs’ unequivocal
testimony to the contrary, is one to be made to a jury and not one amenable to resolution
at the summary judgment stage.
At the heart of this litigation is the evidence that when Sam Vaulton instructed his
friend to press the “out” button, the cable went in. At a minimum, this discrepancy whereby
pushing the “out” button caused the cable to go in suggests a problem with the General’s
winch. We take no position on whether the General’s winch was defective or unreasonably
dangerous when it left Polaris’ control or whether either side can substantiate their
respective theories as to what happened. We do hold, however, that there is a genuine issue
of material fact precluding summary judgment. We reverse the Trial Court on this issue.
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The final issue we address is whether the Trial Court, as part of its grant of summary
judgment in Polaris’ favor, erred in finding Polaris had no duty to attach a rubber stopper
to the otherwise defective or unreasonably dangerous winch. Plaintiffs argue that the Trial
Court “failed to engage in a proper analysis of whether Polaris owed a duty and Polaris had
provided no proof to suggest that the injury to Sam Vaulton was unforeseeable, or as to
either the gravity of harm or its burden to engage in alternative conduct.” In response,
Polaris argues: “The record evidence demonstrates plainly that a rubber stopper is not
designed as a protective device to prevent a user’s fingers from being injured when the user
is improperly holding onto the winch hook, contrary to the winch’s safety warnings.”
(Emphasis in original). Polaris points instead to Pacleb’s deposition testimony that that the
purpose of a “stopper” is to keep the winch hook from rattling loosely against the winch.
Polaris argues further that Barry Vaulton’s testimony that a rubber stopper is a safety
device is inadmissible lay opinion testimony that cannot create a genuine issue of material
fact. In response, Plaintiffs contend the evidence shows Barry Vaulton had practical
experience with ATVs and winches and knew of the subject he was speaking about.
Plaintiffs points out further that Polaris ignores the testimony of the Ritchie sales
representative, Coker-Lavan, in which she agreed that a rubber stopper is a safety device.
“Whether the defendant owed the plaintiffs a duty of care is a question of law to be
determined by the court.” West v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545, 550
(Tenn. 2005) (internal citations omitted). Our Supreme Court has articulated the following
test for determining whether a duty exists:
When the existence of a particular duty is not a given or when the
rules of the established precedents are not readily applicable, courts will turn
to public policy for guidance. Doing so necessarily favors imposing a duty
of reasonable care where a defendant’s conduct poses an unreasonable and
foreseeable risk of harm to persons or property. When conducting this
analysis, the courts have considered, among other factors: (1) the foreseeable
probability of the harm or injury occurring; (2) the possible magnitude of the
potential harm or injury; (3) the importance or social value of the activity
engaged in by the defendant; (4) the usefulness of the conduct to the
defendant; (5) the feasibility of alternative conduct that is safer; (6) the
relative costs and burdens associated with that safer conduct; (7) the relative
usefulness of the safer conduct; and (8) the relative safety of alternative
conduct.
With these factors firmly in mind, Tennessee’s courts use a balancing
approach to determine whether the particular risk should give rise to a duty
of reasonable care. A duty arises when the degree of foreseeability of the
risk and the gravity of the harm outweigh the burden that would be imposed
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if the defendant were required to engage in an alternative course of conduct
that would have prevented the harm. The foreseeability and gravity of the
harm are linked insofar as the degree of foreseeability needed to establish a
duty is inversely proportional to the magnitude of the foreseeable harm. The
greater the risk of harm, the less degree of foreseeability is required. During
the balancing process, it is permissible for the courts to consider the
contemporary values of Tennessee’s citizens.
Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 365-66 (Tenn. 2008) (internal
citations, quotation marks, and footnote omitted). However, our Supreme Court also
stated: “The Satterfield analysis is inapplicable to the particular question presented in this
case because, as this Court explained in Satterfield, the foreseeability test it articulated does
not apply if ‘prior court decisions and statutes have already established the doctrines and
rules governing a defendant’s conduct.’” Coffman v. Armstrong International, Inc., 615
S.W.3d 888, 899 (Tenn. 2021) (quoting Satterfield, 266 S.W.3d at 365)). Here, the Trial
Court held “that Polaris did not have a duty to install a rubber stopper as a safety device on
the type of winch at issue in this litigation.”
While the Trial Court, and the parties to varying degrees, couch this issue in terms
of whether a duty existed, it appears that this issue in fact concerns whether a duty was
breached. This is a products liability case, at least in part, and Polaris’ duties with respect
to not putting defective or unreasonably dangerous products on the market is established
by statute. Whether a rubber stopper is a safety device; whether a rubber stopper would
have prevented Sam Vaulton’s accident; and whether Polaris should have installed a rubber
stopper on the General’s winch, all implicate factual matters in dispute. At the summary
judgment stage, we do not weigh the evidence, nor do we engage in credibility
determinations regarding the deponents. The testimony of Barry Vaulton and Coker-Lavan
that a rubber stopper is a safety device stands in conflict with Pacleb’s testimony that a
rubber stopper is not a safety device. Summary judgment is not the appropriate stage at
which to resolve this dispute. It is for the jury to decide. We, therefore, reverse the Trial
Court on this issue.
In conclusion, we affirm the Trial Court’s determination that Ritchie is entitled to
summary judgment with respect to Plaintiffs’ claim that they did not receive an owner’s
manual or safety instructions. Plaintiffs failed to point to any evidence in the record
disputing the evidence showing specifically that the owner’s manual and safety DVD were
located in the General’s glove box in their possession. However, we reverse the Trial Court
on the other three issues presented. Therefore, we reverse the Trial Court’s grant of
summary judgment to Defendants, and remand for further proceedings consistent with this
Opinion.
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Conclusion
The judgment of the Trial Court is affirmed, in part, and reversed, in part. This
cause is remanded to the Trial Court for collection of the costs below and for further
proceedings consistent with this Opinion. The costs on appeal are assessed one-half against
the Appellee, Polaris Industries, Inc., and one-half against the Appellee, Ritchie Power
Sports, LLC.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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