Geshke v. Crocs, Inc.

United States Court of Appeals
For the First Circuit

No. 12-2204

NANCY GESHKE, mother and natural guardian of N.K.,
a minor, and individually,

Plaintiff, Appellant,

v.

CROCS, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Stahl and Lipez,

Circuit Judges.

Patricia A. DeJuneas, with whom Sibbison & DeJuneas was on
brief, for appellant.
Julie M. Walker, with whom Conor D. Farley and McElroy,
Deutsch, Mulvaney & Carpenter, LLP were on brief, for appellee.

January 17, 2014
 SELYA, Circuit Judge. CROCS are odd looking shoes, known

for their comfort. The plaintiff alleges that this reputation for

comfort masks a hidden peril: the shoes present a heightened risk

to the safety of wearers using escalators, and the manufacturer has

failed to warn of this risk. The district court found these

allegations unsupported and entered summary judgment accordingly.

The plaintiff appeals. After careful consideration, we affirm.

I. BACKGROUND

We briefly rehearse the origins and travel of the case.

We reserve factual details for later discussion.

In July of 2010, plaintiff-appellant Nancy Geshke visited

Boston with her husband, son, and nine-year-old daughter. On July

19, the family boarded a descending escalator at the Aquarium

Station of the Massachusetts Bay Transportation Authority (MBTA).

The daughter, N.K., was wearing a pair of sandals manufactured by

defendant-appellee Crocs, Inc. Those sandals, popularly known as

CROCS, are a type of soft-soled resin clog.

The escalator bore warning signs admonishing riders about

the importance of safe riding practices. Despite these

admonitions, N.K.'s CROCS-shod right foot became entrapped in the

side of the moving stairway. While N.K. screamed, an MBTA worker

unsuccessfully attempted to activate the escalator's emergency

brake. A bystander rushed to the rescue, freeing N.K.'s foot

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before she reached the bottom comb plate (but not before she

sustained injuries).

The plaintiff had purchased N.K.'s CROCS sandals near the

family's California home in 2009. For present purposes, the

defendant concedes that the sandals, when purchased, were not

accompanied by any warnings with respect to the dangers of

escalator entrapment.

In due course, the plaintiff, acting individually and as

mother and next friend of her minor daughter, invoked diversity

jurisdiction, see 28 U.S.C. § 1332(a)(1), and brought suit against

the defendant in the United States District Court for the District

of Massachusetts. She alleged, among other things, negligent

design, failure to warn, and breach of an implied warranty of

merchantability. These allegations were founded on the plaintiff's

tripartite claim that CROCS sandals are prone to becoming entrapped

in escalators; that the defendant knew of this risk; and that the

defendant nevertheless failed either to redesign the product or to

provide adequate warnings.

After pretrial discovery, the defendant moved for summary

judgment. See Fed. R. Civ. P. 56(a). The plaintiff opposed the

motion, but the district court granted it. See Geshke v. Crocs,

Inc., 889 F. Supp. 2d 253, 265 (D. Mass. 2012). This timely appeal

followed. In it, the plaintiff presses only two claims: failure to

warn and breach of an implied warranty of merchantability. Because

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the latter claim, as framed, depends on the asserted failure to

warn, we — like the parties — proceed as if only the former claim

is before us.1

II. ANALYSIS

We review de novo the district court's grant of summary

judgment. See Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40

(1st Cir. 2010). In conducting this tamisage, we take all properly

documented facts in the light most hospitable to the nonmoving

party (here, the plaintiff) and draw all reasonable inferences

therefrom to her behoof. See Gomez v. Stop & Shop Supermkt. Co.,

670 F.3d 395, 396 (1st Cir. 2012). We are not wedded to the

district court's reasoning but, rather, may affirm the entry of

summary judgment on any ground made manifest by the record. See

González-Droz v. González-Colón, 660 F.3d 1, 9 (1st Cir. 2011).

1
Such economy of analysis is possible because, in
Massachusetts, claims for breach of an implied warranty of
merchantability arising out of a supposed failure to warn are
analogous to failure-to-warn claims grounded in negligence. See
Carrel v. Nat'l Cord & Braid Corp., 852 N.E.2d 100, 109 n.12 (Mass.
2006); Hoffman v. Houghton Chem. Corp., 751 N.E.2d 848, 859 (Mass.
2001). To recover under an implied warranty theory, as under a
negligence theory, a plaintiff must establish that the product is
in some way dangerous. See Evans v. Lorillard Tobacco Co., 990
N.E.2d 997, 1021 (Mass. 2013); Restatement (Third) of Torts: Prods.
Liab. § 2(c) (1998); Restatement (Second) of Torts § 402A (1965);
see also W. Page Keeton et al., Prosser and Keeton on Torts § 99,
at 694 (5th ed. 1984) (declaring "there is no question" that
liability attaches if product is "recognizably dangerous"). In the
absence of a danger sufficient to give rise to a cognizable duty to
warn, a plaintiff will perforce be unable to make the showing
needed for a breach of warranty claim.

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 To prevail at summary judgment, the movant must show

"that there is no genuine dispute as to any material fact and

[that] the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a). When the party who bears the burden of

proof at trial is faced with a properly constituted summary

judgment motion, defeating the motion depends on her ability to

show that such a dispute exists. See Borges ex rel. S.M.B.W. v.

Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). Such a showing

"requires more than the frenzied brandishing of a cardboard sword."

Calvi v. Knox Cnty., 470 F.3d 422, 426 (1st Cir. 2006). "The non-

moving party must point to facts memorialized by materials of

evidentiary quality and reasonable inferences therefrom to

forestall the entry of summary judgment." Certain Interested

Underwriters at Lloyd's, London v. Stolberg, 680 F.3d 61, 65 (1st

Cir. 2012).

State law provides the substantive rules of decision in

a diversity case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938). In this instance, we may forgo an independent choice-of-

law analysis and accept the parties' reasonable assumption that the

relevant law is the law of Massachusetts. See Shay v. Walters, 702

F.3d 76, 79-80 (1st Cir. 2012).

To recover on a claim for negligence under Massachusetts

law, a plaintiff must carry the burden of proving the elements of

duty, breach, causation, and damages. See Leavitt v. Brockton

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Hosp., Inc., 907 N.E.2d 213, 215 (Mass. 2009). In this case, we

begin — and end — with the question of whether the plaintiff has

adduced sufficient evidence to show the breach of some legally

cognizable duty.

Generally speaking, a manufacturer owes a duty to warn

foreseeable users of the dangers inherent in the use of its

products. See Taylor v. Am. Chemistry Council, 576 F.3d 16, 24

(1st Cir. 2009) (construing Massachusetts law); Bavuso v.

Caterpillar Indus., Inc., 563 N.E.2d 198, 201 (Mass. 1990).

Whether such a duty arises in any given instance depends on

context: Massachusetts law gives rise to a duty to warn only where

there is "some reason to suppose a warning is needed." Maldonado

v. Thomson Nat'l Press Co., 449 N.E.2d 1229, 1231 (Mass. App. Ct.

1983) (rescript). And a warning is not needed unless there is some

dangerous aspect of the product against which the warning might act

to mitigate risk. See Carey v. Lynn Ladder & Scaffolding Co., 691

N.E.2d 223, 224 (Mass. 1998) (rescript); see also Restatement

(Second) of Torts § 388 (1965) (imposing duty to warn if product

"is or is likely to be dangerous").

The pivotal issue in this case relates to the danger

ostensibly imposed by CROCS sandals, not the danger of riding

escalators generally. Escalators can be dangerous, but the

defendant neither manufactured nor maintained the escalator with

which N.K. became entangled (and at any rate, that escalator

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featured signage that warned conspicuously of its dangers). Here,

then, a duty to warn is not owed unless the plaintiff can at least

make a tenable showing that CROCS pose a heightened risk of

escalator entrapment.2 We turn to that inquiry.

As an initial matter, the plaintiff argues that the

question of whether the defendant owes a duty to warn is a question

of fact for the jury. The defendant counters that the question is

to be decided by the court as a matter of law. Each of these views

derives some support from the case law.

The general tort rule in Massachusetts is that the

existence of a duty is a matter of law to be decided by the court.

See, e.g., O'Sullivan v. Shaw, 726 N.E.2d 951, 954 (Mass. 2000);

Davis v. Westwood Grp., 652 N.E.2d 567, 569 (Mass. 1995). But some

cases indicate, at least in the analogous breach of implied

warranty context, that the determination as to whether a product is

"dangerous" is for the jury. See, e.g., Evans v. Lorillard Tobacco

Co., 990 N.E.2d 997, 1011-14 (Mass. 2013); Carrel v. Nat'l Cord &

Braid Corp., 852 N.E.2d 100, 107-08 (Mass. 2006).

2
Because the plaintiff has not made such a showing here, see
text infra, we need not address the defendant's further argument
that the risk here is "the combined circumstances of an individual
improperly riding a completely separate product, an escalator,
while wearing Crocs shoes," and, thus, no duty to warn would arise
since that risk only comes into play when the CROCS-wearing
individual improperly uses another manufacturer's product (an
escalator).

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 In a sense, deciding which line of cases applies in a

particular instance is akin to deciding how many angels can dance

on the head of a pin. We need not enter into this metaphysical

debate: even if the two lines of cases are in tension (a matter on

which we take no view), the distinction is not material to the

outcome here. Assuming without deciding that the determination of

dangerousness can be for the jury, it nonetheless must rest on an

adequate factual predicate. See Cordi-Allen v. Conlon, 494 F.3d

245, 251-52 (1st Cir. 2007); Fithian v. Reed, 204 F.3d 306, 308-09

(1st Cir. 2000). Consequently, we focus the lens of our inquiry on

whether the plaintiff has adduced sufficient evidence to permit a

rational jury to find that CROCS sandals pose a heightened risk of

escalator entrapment.

The plaintiff claims that her theory of heightened risk

is supported by several evidentiary pillars. But as we explain

below, none of these is adequate to ground a conclusion that CROCS

present a heightened risk of injury on escalators.

We start with the historical information in the record

indicating that N.K. was not the first child to have a CROCS sandal

entrapped in an escalator. Between 2006 and 2009 the defendant

fielded a dozen complaints, more or less, from customers who

claimed to have had their feet entrapped in escalators while

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wearing CROCS sandals.3 Indeed, the complaints were sufficiently

numerous that the defendant created a standard intake form for

them. Withal, the complaints are captured only in cryptic incident

reports; and the record reveals very little about either their

substance or their circumstances.

There is, of course, a significant difference between

anecdotes and probative evidence. The meager anecdotal history

contained in the incident reports tells us nothing about whether

the complaints related to the dangers normally attendant to

escalator use (as opposed to some special danger posed by CROCS).

Furthermore, the history sheds no light on whether this quantum of

complaints is atypical in the shoe industry. For aught that

appears, Nike or Reebok or Puma may have received far more

complaints than the defendant, whether measured in terms of a gross

count or in terms of a ratio to the number of shoes sold.

To say more on this point would be supererogatory. The

bottom line is that the incident reports, whether viewed alone or

in combination with other evidence, fall well short of supporting

a reasonable inference that CROCS pose a heightened risk of

escalator entrapment. Cf. Goldman v. First Nat'l Bank of Bos., 985

3
In her complaint, the plaintiff alleged that around 300 such
incidents had occurred, and the district court referenced this
number. Geshke, 889 F. Supp. 2d at 263. But unverified
allegations in a complaint are not evidence, see Borges, 605 F.3d
at 3, and the summary judgment record contains nothing of
evidentiary quality supporting the figure mentioned in the
complaint.

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F.2d 1113, 1119 (1st Cir. 1993) (refusing to allow inference of

employment discrimination on basis of anecdotal evidence).

The record also indicates that, in May of 2008, following

an incident reported to the Japanese Ministry of Economy, Trade,

and Industry, Japan's National Institute of Technology and

Evaluation, produced a report (the METI-NITE Report). This report

chronicles the results of side-by-side escalator entrapment testing

of resin sandals (made by seven unidentified manufacturers), boots,

beach sandals, and canvas shoes. After attributing more

entrapments to resin sandals than to other tested footwear (at

least on certain types of escalators and under some conditions),

the report concludes that resin sandals have "a tendency to become

entrapped in escalators."

We need not dwell on the import of this document. The

district court rejected the plaintiff's proffer of the METI-NITE

Report, noting both its lack of authentication, see Fed. R. Evid.

902(3), and the plaintiff's failure to put forward an expert to

accredit the methodology, explain the results, and put the results

in context.4 See Geshke, 889 F. Supp. 2d at 262-63. On appeal,

the plaintiff does not challenge the finding that the content of

the METI-NITE Report is inadmissible. That ends the matter. See

Garside v. Osco Drug, Inc., 895 F.2d 46, 49-50 (1st Cir. 1990)

4
In this regard, we note that the only relevant testimony in
the record describes the report's methodology as "problematic."
The plaintiff offered no contrary evidence.

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(explaining that material that is inadmissible cannot create a

genuine issue of material fact sufficient to thwart summary

judgment).

In an effort to get some mileage out of the inadmissible

METI-NITE Report, the plaintiff points to the defendant's response

to that report: its design of a new sandals model called the Blaze

for release in the Japanese market. In particular, the plaintiff

cites an intra-company e-mail, in which the general manager of

CROCS Japan wrote that "[b]ecause of escalator issue[,] Ministry

[sic] asked us to start selling new products which can reduce

accident [sic] by end of July."

But this evidence, when unmoored from the substance of

the inadmissible METI-NITE Report, is highly ambiguous. Although

e-mails in the record indicate that the defendant considered the

situation "urgent," this assessment does not tend to establish that

the sandals were dangerous. Companies vary product designs for a

multitude of reasons, and the fact that a company responds in

earnest to a regulator's concern is not, in and of itself,

sufficient to warrant a conclusion that the regulator's concern is

justified. Cf. Gross v. Stryker Corp., 858 F. Supp. 2d 466, 474

n.13 (W.D. Pa. 2012) (refusing to consider voluntary product recall

as probative of regulatory violation). The lack of support for

such a conclusion is most noticeable where, as here, the factfinder

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would not have the benefit of hearing either what the regulator's

concern was or what the basis for that concern may have been.

The short of it is that the CROCS Blaze story, devoid of

support and context, cannot ground a reasonable inference that

CROCS sandals present a heightened risk of danger on escalators.

The plaintiff pins her final hope on the defendant's

decision to include a generalized escalator safety warning on the

hangtag of its sandals.5 The label exhorts purchasers to adhere to

safe escalator-riding practices such as standing in the middle of

the step, refraining from contact with surfaces next to the moving

stairs, stepping carefully upon ingress and egress, and holding

children's hands. The plaintiff suggests that the adoption of this

warning shows that the defendant must believe that its sandals

present an escalator safety issue.6

This evidence does not advance the plaintiff's cause.

The warning label itself makes no mention of any special danger

5
The record is tenebrous as to when this decision was made.
Although the plaintiff denies that the CROCS that she purchased had
such a hangtag, the defendant demurs. We need not resolve this
contretemps because the defendant, anticipating the district
court's application of the summary judgment standard, has accepted,
arguendo, the plaintiff's version.
6
This argument raises obvious questions about the
applicability of the rule barring the admission in tort cases of
evidence of subsequent remedial measures. See Fed. R. Evid. 407;
see also Nieves-Romero v. United States, 715 F.3d 375, 380 (1st
Cir. 2013). Neither party has briefed this issue, and we need not
decide it. As we explain below, the new hangtag is not probative
of a past failure to warn.

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posed by CROCS. It speaks, in the most general terms, about

escalator safety. It does not in any way suggest that CROCS either

present a heightened risk of danger on escalators or are more prone

to escalator mishaps than other footwear.

The only evidence concerning why the defendant added such

a warning is unhelpful to the plaintiff. It consists solely of an

innocuous statement that the hangtag was added "to notify a

consumer of . . . [p]roduct safety." The deponent (the defendant's

chief executive officer) explained that the hangtag, consistent

with its language, was designed to inform CROCS customers of the

risks associated with riding escalators in an unsafe manner. While

the plaintiff hints darkly that this statement may be apocryphal,

our summary judgment duty to draw inferences in favor of the

nonmovant does not permit us to offset uncontroverted testimony

through adverse credibility determinations. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986); see also Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984)

("Normally . . . discredited testimony is not considered a

sufficient basis for drawing a contrary conclusion.").

Viewed against this backdrop, the hangtag evidence, alone

or in combination with other facts of record, is too thin to carry

the weight that the plaintiff loads upon it. To conclude from this

evidence that CROCS pose a heightened risk of escalator entrapment

would require a surfeit of speculation and surmise far beyond the

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outer limits of the summary judgment standard. See Anderson, 477

U.S. at 249-50 ("If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted."

(internal citations omitted)); Miss. Pub. Emps.' Ret. Sys. v. Bos.

Scientific Corp., 649 F.3d 5, 28 (1st Cir. 2011) (similar).

To sum up, the plaintiff's case hinges on demonstrating

that the defendant's product was particularly dangerous on

escalators. Yet even after full discovery, the plaintiff failed to

adduce significantly probative evidence on this point sufficient to

allow a reasonable jury to find in her favor. Thus, she has not

made the required showing of each and every element essential to

her case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986) (requiring nonmovant to "do more than

simply show that there is some metaphysical doubt as to the

material facts"). She has pointed to CROCS sandals as a possible

cause of her daughter's misfortune, but "[m]erely raising

possibilities does not bridge the gap between fact and theory."

Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of

London, 637 F.3d 53, 58 (1st Cir. 2011).

III. CONCLUSION

We need go no further. From this record, we cannot tell

whether CROCS present a heightened risk of escalator entrapment.

What we can tell, however, is that the plaintiff has failed to

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adduce significantly probative evidence to that effect. The entry

of summary judgment is

Affirmed.

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