Montezuma County District Court
109 West Main, Room 210
Cortez, Colorado 81321
Plaintiff: BRIAN GRUBBS,
Individually COURT USE ONLY
v.
Defendants: WAL-MART STORES,
INC., a Delaware Corporation
and JOHN DOE SUPPLIER
Attorney for Plaintiff
Case Number: 2008CV82
David S. Woodruff
HILLYARD, WAHLBERG, KUDLA & Courtroom: Division 1
SLOANE, LLP
4601 DTC Boulevard, Suite 300
Denver, CO 80237
Telephone: 303/ 571-5302
Fax: 303/ 571-1806
Atty. Reg. 32585
e-mail: david@hwkslaw.com
RESPONSE AND BRIEF IN OPPOSITION TO
DEFENDANT WAL-MART STORES, INC.'S MOTION TO DISMISS OR IN
THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
AND
REQUEST FOR HEARING
Plaintiff Brian Grubbs, by and through his attorney, David S. Woodruff of the law firm
HILLYARD, WAHLBERG, KUDLA & SLOANE, LLP, respectfully submits his Response in
Opposition to Defendant Wal-Mart Stores, Inc.’s Motion to Dismiss, and respectfully states as
follows:
Summary of Plaintiff’s Response
Wal-Mart asks this Court to hold that it is free to sell bulk produce contaminated with
Salmonella without fear of legal recourse. Wal-Mart attempts to use the Colorado Product
Liability Act (“CPLA”) as both a sword and a shield, first insisting that Plaintiff’s claims are
wholly subsumed by the CPLA, yet then proposing that Wal-Mart cannot be held liable under the
very Act that it insists must be applied. Wal-Mart’s argument is both factually and legally
flawed, and should be rejected.
First, Wal-Mart ignores the basic principles governing motions to dismiss and motions
for summary judgment, the controlling substantive law regarding product liability and breach of
warranties, and the Plaintiff’s Complaint. It is well-established in Colorado that, in considering a
motion to dismiss, the Court must take the allegations set forth in the plaintiff’s complaint as
true. Plaintiff’s Complaint alleges that Wal-Mart is, in fact, a manufacturer under the CPLA.
That allegation must be taken as true, especially in light of the broad array of factual scenarios
which could establish Wal-Mart’s liability as a “manufacturer.”
Perhaps most importantly, Wal-Mart is liable under the exception to the “Innocent Seller”
statute, C.R.S. § 13-21-402(2). Because jurisdiction cannot be obtained over the ‘grower’ of the
contaminated peppers (purportedly a Mexican farm), Wal-Mart remains liable for the defective
produce it sold.
Before discovery has even begun, Wal-Mart offers a self-serving, conclusory affidavit to
dispute the allegations in Plaintiff’s Complaint. That effort is simply premature. Moreover, the
inclusion of the affidavit simply acts to create a genuine issue of material fact that precludes
summary judgment.
Accordingly, Defendant Wal-Mart’s motion should be denied.
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I. The Salmonella Saint Paul Outbreak.
On May 22, 2008 health officials in New Mexico notified the Center for Disease Control
("CDC") about a cluster of four individuals infected with a genetically indistinguishable strain of
Salmonella Saint Paul. This led to an international investigation strain of Salmonella that
eventually identified 1,442 ill persons confirmed by a positive culture. The outbreak was
determined to have begun in late April 2008, with most of the illnesses in May or June 2008.
The CDC reports that:
On July 29, the Colorado Department of Public Health and the
Environment (CDPHE) reported isolation of the outbreak strain from a
jalapeno pepper collected from the household of a person in Colorado [the
plaintiff, Brian Grubbs] who had developed the illness with the outbreak
strain. CDPHE traced this pepper from the grocery store where it had
been purchased to another distributor in Texas, which reportedly received
jalapeno peppers from farms in Mexico; however the specific farms have
not been identified.
To date, the identity of the distributor or any implicated farm has not been released to the public,
to the Plaintiff, or to his counsel.
II. Brian Grubbs’ Complaint.
The Plaintiff alleges three causes of action in his Complaint against the Defendant: Strict
product liability (¶20-25); negligence and negligence per se (¶26-34); and breach of warranties
(¶35-39). In each of these causes of action, the Plaintiff includes in his allegations that
Defendant Wal-Mart was a manufacturer, distributor, and seller of the peppers in question, that
the peppers were contaminated with Salmonella, and that the peppers caused the Plaintiff’s
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illness.
The Defendant does not contest that such allegations, if true, would constitute proper
claims for relief, under both Colorado’s strict liability statutory scheme as well as common law.
III. Wal-Mart’s Motion to Dismiss Should Be Denied
Defendant Wal-Mart has not yet filed an Answer in this case. Discovery has not yet
begun, and no facts have been discovered to either support or refute Plaintiff’s allegations.
Accordingly, a motion to dismiss would be entirely inappropriate at this time. Accepting the
allegations in the light most favorable to Plaintiff, as the Court is required to do, Plaintiff does
indeed state viable claims for relief.
A. Standard of Review Pertaining to Motions to Dismiss
In ruling on a motion to dismiss for failure to state a claim pursuant to C.R.C.P. 12(b)(5),
the Court “must accept all well-pleaded facts as true, and the allegations of the complaint must
be viewed in the light favorable to the plaintiff.” See Western Innovations, Inc. v. Sonitrol
Corporations, 187 P.3d 1155 (Colo.App. 2008). “A complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove facts in
support of a claim that would entitle it to relief.” Id at 1158, citing Coors Brewing Co. v. Floyd
978 P.2d 663 (Colo. 1999).
Moreover, if the Court finds defects in Plaintiff's Complaint that could be cured by a
simple amendment, Plaintiff should be allowed to freely amend his Complaint to allow his
claims to survive. Dismissal of claims is an extreme remedy, and should generally not be
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granted.
B. The Plaintiff’s Allegation That the Defendant is a Manufacturer Must be Taken as
True
Plaintiff alleges in his Complaint that Defendant Wal-Mart was the manufacturer of the
food that injured the Plaintiff. The Court must take such allegation as true, unless it “appears
beyond a doubt” that the plaintiff could not prove such facts in support of a claim.” C.R.C.P. 12;
Western Innovations, Inc. v. Sonitrol Corporations, 187 P.3d at 1155; Coors Brewing Co. v.
Floyd, 978 P.2d at 663.
The only question, then, is whether it appears beyond a doubt that Plaintiff could not
prove facts in support of a claim. Given the legal definition of “manufacturer,” there are
numerous factual scenarios in which Defendant Wal-Mart may be shown to be the manufacturer
of the contaminated peppers. Defendant has failed to show that, beyond a doubt, Plaintiff could
not prove facts in support of a claim.
1. The Term “Manufacturer” Under Colorado Law
The Colorado Product Liability Act, C.R.S. §13-21-401 (1), defines “manufacturer” as
one who “designs, assembles, fabricates, produces, constructs, or otherwise prepares a
product…” [emphasis added.] Thus, Wal-Mart can be held liable as a manufacturer under
numerous factual scenarios. If there is any potential fact scenario under which Defendant Wal-
Mart can be shown to have "produced" or “otherwise prepared” the contaminated peppers, Wal-
Mart's motion must fail.
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2. Numerous Potential Factual Scenarios Implicate Wal-Mart As
“Manufacturer”
There are a myriad of potential fact scenarios in which Wal-Mart could be shown to have
"produced" or "otherwise prepared" the contaminated peppers. Such factual scenarios could
potentially include growing, picking, storing, or shipping the contaminated peppers. Factual
scenarios could also potentially include washing, packaging, inspecting, testing, or treating the
implicated peppers. Other factual scenarios could include Wal-Mart having an ownership
interest in the Mexican farm where the peppers were grown, Wal-Mart having accepted
contractual liability for the grower's conduct, or Wal-Mart arranging for the growing, picking,
cleaning, storing, or shipping of the produce.
It cannot be said “beyond a doubt” that such facts will not be proven. The conclusory
and wholly unsupported (and thus far unexamined) affidavit of a Wal-Mart employee certainly
does not lead to this conclusion. Accordingly, dismissal is not appropriate at this time, and Wal-
Mart’s motion to dismiss should be denied.
C. Under C.R.S. § 13-21-402(2), Wal-Mart is Not Protected As An "Innocent Seller"
Even assuming, arguendo, that Wal-Mart did not “manufacture” the contaminated
peppers, Wal-Mart’s motion still must be denied. Wal-Mart is still responsible under the
exception to Colorado’s “Innocent Seller” rule.
1. The Exception to the “Innocent Seller” Rule
Generally, C.R.S. § 13-21-402 precludes strict liability against “non-manufacturers” for
injuries caused by the sale of a defective product. This is known as the "Innocent Seller" rule.
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Wal-Mart relies upon this rule in asking this Court to dismiss Plaintiff’s claims. That reliance is
grossly misleading.
In its motion, Wal-Mart conveniently ignores –and fails to point out to the Court—that
there is a significant exception to the Innocent Seller rule. That exception, found at C.R.S. § 13-
21-402(2), provides:
§13-21-402. Innocent seller
….
(2) If jurisdiction cannot be obtained over a particular manufacturer of a
product or a part of a product alleged to be defective, then that manufacturer's
principal distributor or seller over whom jurisdiction can be obtained shall be
deemed, for the purposes of this section, the manufacturer of the product.
Thus, a seller of contaminated produce in Colorado –even if the seller does not technically grow
or “manufacture” the produce—is still legally liable for injuries caused by the produce, if
jurisdiction cannot be obtained over the actual grower itself. Id.
That is precisely the case here.
2. Wal-Mart Remains Liable Regardless of “Innocent Seller” Status Because
Jurisdiction Cannot Be Obtained Over the Grower
Wal-Mart insists it did not “grow” the Salmonella-tainted peppers. Yet the identities of
the actual “grower” (apparently a farm in Mexico), distributor, and others along the chain of
supply remain a well-guarded secret. Wal-Mart refuses to disclose the grower’s identity.
Plaintiff has repeatedly requested, via telephone calls and a letter to Wal-Mart's counsel, the
identity of the grower. (See Letter to Defense Counsel, attached as Exhibit 1). Wal-Mart has not
responded.
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The Plaintiff has no way of discovering such information unless Wal-Mart supplies it
through discovery. Without the identities of the “manufacturer” (i.e., the grower), jurisdiction
over the grower cannot be obtained. As long as Wal-Mart remains silent, Plaintiff has no legal
recourse against the “John Doe Supplier.”
This scenario is precisely the reason the Colorado General Assembly contemplated and
approved exception (2) to the Innocent Seller rule: to protect Colorado citizens from
manufacturers and sellers avoiding liability exactly as Wal-Mart attempts to do here.
Wal-Mart refuses to accept liability as a manufacturer, yet also refuses to identify the
“manufacturer” that provided the contaminated peppers. Wal-Mart perpetrates a direct affront to
the very heart of product liability law, leaving the innocent consumer with no remedy for injury,
and allowing those in the chain of distribution to profit from a code of silence.
Colorado law prevents such a charade. Under C.R.S. § 13-21-402(2), Wal-Mart remains
legally liable unless and until Plaintiff can identify and obtain jurisdiction over the actual
“manufacturer” or grower of the salmonella-tainted peppers.
D. The Plaintiff’s Claims for Breach of Warranty Cannot be Dismissed
Defendant moves for a complete dismissal of all claims, relying solely on the CPLA.
That reliance is misplaced. Even if Wal-Mart is provided protection from a strict liability claim,
the CPLA does not insulate Wal-Mart from the plaintiff’s breach of warranty claims. Not
surprisingly, Defendant fails to address these claims.
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1. Colorado Imposes Liability for Breach of Warranty For The Sale of Food
Unfit For The Purpose For Which It Was Sold.
Colorado, applying its own U.C.C. provision, has long held that the seller of
unwholesome food is liable for the consequences under an implied warranty imposed by law, as
a matter of public policy:
It is elementary that one who sells an article for use as food for human
consumption is held in law to have impliedly warranted that it is fit for the
purpose for which it was sold, and for breach of that warranty proximately
resulting in injury may be held to respond in damages.”
Gonzales v. Safeway Stores, Inc., 363 P.2d 667 (Colo. 1961); See also, C.R.S. § 4-2-314.1
2. The Colorado Product Liability Act Does Not Preclude A Breach of
Warranty Claim Against Wal-Mart For Selling Contaminated Produce
It is well-established in Colorado law that the Product Liability Act does not preclude
negligence or breach of warranty claims against a non-manufacturing seller arising out of
injuries from a defective product. The Supreme Court has expressly stated that negligence and
breach of implied warranty claims based on a defective product are separate and distinct claims
from similar claims based on strict liability. Wallman v Kelley, 976 P.2d 330 (1998). The Court
has further recognized that the CPLA did not bar negligence and breach of implied warranty
claims from being asserted against the non-manufacturing retailer, or innocent seller. Id. As the
Supreme Court has explicitly stated:
1
Pursuant to C.R.S. §4-2-314, Wal-Mart’s warranty extends to Mr. Grubbs, even though the peppers were
purchased by his wife.
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In contrast to a product liability claim in negligence, an action for breach
of warranty under the Uniform Commercial Code is governed by a unified
statutory scheme directed to the sale of goods…In light of this integrated
statutory scheme applicable to warranty claims arising out of a contract for
a sale of goods, it is completely logical that warranty actions otherwise
subject to the provisions of the Uniform Commercial Code should be
governed by…that statutory scheme…
Persichini v. Brad Ragan, 735 P. 2d 168 (Colo. 1987).
3. The 2003 Amendment to the CPLA Does Not Preclude Breach of Warranty
Claims Against the Seller of Contaminated Produce
In 2003, the scope of the “product liability action” which could be asserted exclusively
against a manufacturer was broadened by the General Assembly when the limiting terms “based
on the doctrine of strict liability in tort” were deleted from § 13-21-402. Accordingly, under the
present version of C.R.S. §13-21-402(1), "No 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 … of the part thereof giving rise to the product liability action." There is no support
for the argument, however, that this change was intended to eradicate the claims otherwise
available under Colorado’s U.C.C. statutory scheme.
As a general rule, courts do not interpret a statute as abrogating or altering another
statutory scheme without explicit direction. Courts do not presume such a revision “'unless an
intent to make such a change is clearly expressed.” John R. Sand & Gravel Co. v. United States,
128 S. Ct. 750, 755 (U.S. 2008). There is no clear expression in the amended language of
C.R.S. §13-21-402 that Colorado’s comprehensive statutory scheme under the U.C.C. be
abrogated. C.R.S § 4-2-318 expressly extends the warranty created by the contract for sale, and
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its remedies against the seller of a defective product, to those persons injured as a result of the
purchased product’s failure to comply with product’s warranty. There would be little use for this
statute if it may not be enforced by the injured person against the product’s seller.
The ongoing existence of breach of warranty claims in product liability actions is
reflected in the most recent Colorado Jury Instructions, 4th, revised in 2005, well after the 2003
amendment to the CPLA. The instructions applicable to tort-based product liability claims
require a finding that the defendant is a “manufacturer”; see CJI-Civ 14:1 and 14:17. In contrast,
the instructions applicable to product liability breach of warranty claims, and specifically to
product liability breach of implied warranty of wholesomeness of food claims, make no mention
of a “manufacturer”, and instead are specifically applicable to the “retailer”, “grocer” and/or
“wholesaler” who sold the defective food product. CJI-Civ. 14:12 provides as follows:
B. PRODUCT LIABILITY FOR BREACH OF WARRANTY
14:12 IMPLIED WARRANTY OF WHOLESOMENESS OF FOOD --
DEFINED
When a (insert an appropriate description, e.g., "packer," "retailer,"
"grocer," "wholesaler," "restaurateur," etc.) sells (food) (or) (drink) for
human consumption, (he) (she) (it) warrants that the product is wholesome
and fit for human consumption at the time of the sale. This warranty is
implied by law and need not be expressed in any fashion. [emphasis
added.]
This instruction is to be used in conjunction with CJI-Civ 14:10 “Breach of implied
warranty of merchantability - elements of liability.” CJI-CIv 14:10 contains no requirement that
the defendant be a manufacturer, instead only requiring that the defendant sold the article in
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question.
It is clear that breach of warranty claims remain separate and distinct from strict liability
claims, and are not subsumed by C.R.S. §13-21-402. The “innocent seller” defense is not
available to non-manufacturing retailers in a breach of warranty action. Thus, even if the
“innocent seller” defense were somehow applicable to the case at hand, plaintiff’s breach of
warranty claims would still survive.
IV. Wal-Mart’s Alternative Motion For Summary Judgment Must Be Denied
Wal-Mart couches its motion as, in the alternative, a “motion for summary judgment.”
That request for relief is inappropriate. Obviously, summary judgment would be premature at
this juncture.
Under well-established Colorado law, summary judgment is only appropriate on a clear
showing that no genuine issue of material fact exists. Cyprus Amax Materials Co. v. Lexington
Ins. Co, 74 P.3d 294 (Colo. 2003). In determining whether summary judgment is proper, the
nonmoving party is entitled to the benefit of all favorable inferences that may reasonably be
drawn from the undisputed facts, and all doubts must be resolved against the moving party.
Casebolt v. Cowan, 829 P.2d 352, 354 (Colo. 1992).
A. Wal-Mart’s Motion For Summary Judgment is Premature and Not Factually
Supported
In support of its alternative motion for summary judgment, Defendant Wal-Mart provides
only the affidavit of William Shugart, a Wal-Mart employee. The single, self-serving affidavit,
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provided before the inception of any discovery, is insufficient to support a motion for summary
judgment.
The affidavit of Mr. Shugart, in the absence of any opportunity to conduct discovery, is
insufficient to support a motion for summary judgment. Summary judgment is not proper where
the factual record has not been adequately established. Moore v. 1600 Downing Street, Ltd., 668
P.2d 16, 20 (Colo.App. 1983). In addition, conclusory affidavits are insufficient to support a
motion for summary judgment. United States Leasing v. Montelongo, 25 P.3d 1277, 1279 (Colo.
App. 2001). A party cannot be compelled to try his case on affidavits, without the opportunity to
conduct discovery and cross-examine the affiant. Hatfield v. Barnes, 115 Colo. 30, 33 (Colo.
1946). Here, the Plaintiff has had no opportunity to determine the veracity of Mr. Shugart’s
assertions, or investigate Wal-Mart’s involvement with the peppers in question. Summary
judgment cannot be granted without the opportunity to conduct discovery into the issues raised
by Mr. Shugart’s assertions. “A party must have an adequate opportunity to develop his claims
through discovery before summary judgment is appropriate.” Redmond v. Burlington N. R. Co.
Pension Plan, 821 F.2d 461, 469 (8th Cir. Minn. 1987). See also Anderson v. Liberty Lobby,
Inc., 106 S. Ct. 2505, 2511, fn. 5 (1986).
Thus, summary judgment is improper where the plaintiff would be denied the
opportunity to conduct discovery into the veracity and accuracy of Mr. Shugart’s affidavit. The
breadth of Mr. Shugart’s affidavit certainly calls its accuracy into question, even prior to the
opportunity to conduct discovery. He states “Wal-Mart did not have any involvement in how the
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jalapenos…were grown, produced, or handled prior to the alleged sale.” [emphasis added]
Taking such a statement on its face, Wal-Mart is asserting peppers magically appeared on Wal-
Mart’s shelves without any handling or involvement by Wal-Mart. Furthermore, Mr. Shugart
alleges that Wal-Mart did not exercise any “significant control” over the manufacturing process.
Yet, without any discovery, the Plaintiff, and the Court, are left to guess at the Defendant’s
definition of “significant control.” It is unknown whether Wal-Mart provided any specifications
for the product, retained any right to refuse acceptance of the product, or conducted any
inspection of the product. In short, without the opportunity to conduct discovery, Wal-Mart’s
affidavit does nothing more than to contradict the Plaintiff’s allegations regarding the facts of the
case. The affidavit thus creates an issue of fact that precludes summary judgment.
B. Wal-Mart’s Motion for Summary Judgment Fails to Address the Exception
to the Innocent Seller Rule, and the Plaintiffs Breach of Warranty Claims.
Finally, it must be noted that even a determination, as a matter of law, that Wal-Mart was
not a manufacturer would not support the granting of a summary judgment motion. As detailed
above in the discussion of Wal-Mart’s motion to dismiss, the exception to the “innocent seller”
rule in C.R.S. §13-21-402(2), as well as the continued existence of breach of warranty claims
against non-manufacturing retailers preclude summary judgment on the behalf of the defendant.
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V. Conclusion
Wal-Mart is entitled to neither a dismissal under C.R.C.P. 12(b)(5) nor summary
judgment. Its factual assertion that it is not manufacturer is insufficient to carry the day under
either procedural vehicle. Moreover, even if Wal-Mart were to prevail in its argument that it is
not a manufacturer under C.R.S. §13-21-402(1), it has not dispelled the legal claims alleged by
the plaintiff in his complaint. For these reasons, Wal-Mart’s motion must be denied.
VI. Request For Hearing
Plaintiff respectfully requests that the Court conduct an oral hearing on this matter to
consider argument of counsel and the matters discussed herein.
DATED: October 24, 2008
Respectfully submitted,
HILLYARD, WAHLBERG, KUDLA & SLOANE, LLP
Duly authorized signature on file in the offices of
Hillyard, Wahlberg, Kudla & Sloane, LLP
_____________________________________________
David S. Woodruff, #32585
Attorney for Plaintiff
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on October 24, 2008 a true and correct copy of the
above and foregoing RESPONSE AND BRIEF IN OPPOSITION TO DEFENDANT WAL-
MART'S MOTION TO DISMISS was sent via Lexis Nexis File and Serve to the following:
Michael B. Sullivan, Esq.
HARRIS, KARSTAEDT, JAMISON & POWERS, P.C.
188 Inverness Drive West, Suite 300
Englewood, CO 80112
HILLYARD, WAHLBERG, KUDLA & SLOANE, LLP
A duly signed original is kept at the law offices of
Hillyard, Wahlberg, Kudla & Sloane, LLP
_________________________________________
Carolyn Headrick
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