IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10349

Summary Calendar

DELAIN SCOTT, Individually and as Next Friend for Kayden Accardo,

Plaintiff–Appellant

v.

DOREL JUVENILE GROUP, INCORPORATED, also known as Dorel

Industries Incorporated,

Defendant–Appellee

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:09-CV-799

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

I. FACTUAL AND PROCEDURAL BACKGROUND

In April 2006, Plaintiff–Appellant Delain Scott had a baby girl—K.A. 

Later that year, Bobbie Scott, Delain’s mother and K.A.’s grandmother,

purchased Defendant–Appellee Dorel Juvenile Group’s Safety First 516A latches

for Bobbie’s kitchen cabinets. The latches that Bobbie purchased can be

United States Court of Appeals

Fifth Circuit

F I L E D

January 4, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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installed with or without a catch. Bobbie installed the latches without the catch. 

Bobbie experienced no problems with the latches until April 17, 2007. On that

day, Delain and K.A. were over at Bobbie’s house. All three of them were in the

kitchen with Bobbie and Delain preparing dinner and K.A. playing on the

kitchen floor. 

Both Bobbie and Delain lost track of K.A. for about thirty to sixty seconds

in light of their dinner preparations. Prior to this time, Delain had last seen

K.A. sitting on a rug in front of the kitchen sink cabinet drinking from her sippy

cup. That cabinet was one of the ones to which Bobbie had installed Dorel’s

latch. Among other things in that cabinet was a can of Drano Crystals, a drain

cleaner. After the thirty- to sixty-second period, Delain looked down to find K.A.

foaming from the mouth. Next to K.A. was an open and spilled can of Drano; the

kitchen sink cabinet was open. As a result of this accident, K.A. is mute,

breathes through a permanent trach in her neck, and can only eat through a

feeding tube.

Delain brought the case initially in Texas state court, asserting failure to

warn, manufacturing defect, design defect, negligence, gross negligence, and

breach of express and implied warranty claims. Defendants Dorel and S.C.

Johnson & Son (Drano’s manufacturer) removed the case to the United States

District Court for the Northern District of Texas. S.C. Johnson settled with

Delain. Dorel moved for summary judgment, which the district court granted

on all claims. Delain appeals the district court’s summary judgment order only

as to the design defect, negligence (including gross negligence), and breach of

express and implied warranty claims.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review a district court’s grant of summary judgment de novo, applying

the same standards as the district court. Hernandez v. Yellow Transp., Inc., 641

F.3d 118, 124 (5th Cir. 2011). Summary judgment is appropriate where the

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movant shows that there is no genuine issue of material fact and that the

movant is entitled to judgment as a matter of law. Id. (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986); Fed. R. Civ. P. 56(a)). In reviewing the

record, all facts and inferences are construed in the light most favorable to the

non-movant. Id. However, “[i]f the record, taken as a whole, could not lead a

rational trier of fact to find for the non-moving party, then there is no genuine

issue for trial.” Id. (internal quotation marks omitted). 

Where, as here, federal jurisdiction is based on diversity, we apply the

substantive law of the forum state. Aubris Res. LP v. St. Paul Fire & Marine

Ins. Co., 566 F.3d 483, 486 (5th Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304

U.S. 64, 78–79 (1938)) (additional citation omitted). In resolving issues of Texas

law, we look to the decisions of the Texas Supreme Court. Packard v. OCA, Inc.,

624 F.3d 726, 730 (5th Cir. 2010). If there is no decision directly on point, then

we must determine how that court, if presented with the issue, would resolve it.

Id. In making this determination, “[t]he decisions of Texas intermediate

appellate courts may provide guidance, but are not controlling.” Id.

III. DISCUSSION

A. Design Defect

“Under Texas law, ‘[t]o recover for a products liability claim alleging a

design defect, a plaintiff must prove that (1) the product was defectively

designed so as to render it unreasonably dangerous; (2) a safer alternative

design existed; and (3) the defect was a producing cause of the injury for which

the plaintiff seeks recovery.’” Goodner v. Hyundai Motor Co., Ltd., 650 F.3d

1034, 1040 (5th Cir. 2011) (quoting Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,

311 (Tex. 2009)). The district court found that although there was a material

factual dispute as to the unreasonably dangerous prong, Scott v. Dorel Juvenile

Grp., Inc., 773 F. Supp. 2d 664, 671–72 (N.D. Tex. 2011), Delain could not prove

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causation and therefore, granted summary judgment to Dorel on Delain’s design

defect claim, id. at 672.

1. Unreasonably Dangerous 

“Unreasonable dangerousness is a common law element evaluated using

the following five factors:

(1) the utility of the product to the user and to the public as a whole

weighed against the gravity and likelihood of injury from its use; (2)

the availability of a substitute product which would meet the same

need and not be unsafe or unreasonably expensive; (3) the

manufacturer’s ability to eliminate the unsafe character of the

product without seriously impairing its usefulness or significantly

increasing its costs; (4) the user’s anticipated awareness of the

dangers inherent in the product and their avoidability because of

the general public knowledge of the obvious condition of the product,

or of the existence of suitable warnings or instructions; (5) the

expectations of the ordinary consumer.”

Goodner, 650 F.3d at 1040 (quoting Hernandez v. Tokai Corp., 2 S.W.3d 251, 256

(Tex. 1999)). These five factors are considered “holistically; no single factor

needs to be proven on its own, so long as all factors working together point to a

finding of unreasonable dangerousness.” Goodner, 650 F.3d at 1041 (citing Am.

Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997)). “Generally,

unreasonable dangerousness is a question of fact for the jury. It only becomes

a matter of law if reasonable minds cannot differ.” Goodner, 650 F.3d at 1040

(citing Hernandez, 2 S.W.3d at 260–61). 

This five-factor evaluation is a risk-utility analysis. Timpte Indus., 286

S.W.3d at 311. The Texas Supreme Court has cautioned that this “risk-utility

analysis does not operate in a vacuum, but rather in the context of the product’s

intended use and its intended users.” Id. at 312. Dorel invites this Court to

consider that the latch itself is not unreasonably dangerous as it was not the

latch that caused the harm to K.A. Dorel analogizes the latch as a puppy leash

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to the Drano being a tiger. Such an analogy is inapposite, because the evidence

shows that in its marketing of the latch, Dorel discusses using the latch to

secure cabinets and drawers where one might store cleaners and medicine. That

is to say, that the latch’s utility is keeping children out of cabinets where there

might be harmful things. Moreover, Delain’s expert, John Scates, opined that

a latch installed without the catch could be opened with as little as 2.75 pounds

of force, much less than the 25 pounds that Dorel’s specifications state that the

latch should be able to withstand. Dorel’s expert, Dirk Duffner, confirmed this

result and found that 63% of the latches he tested failed with less than 25

pounds of force applied to them (median: 4.2 pounds; minimum: 1.6 pounds). In

light of this evidence, we find that the evidence on the dangerousness of the

latch does not cut so in Dorel’s favor that reasonable minds could not find the

product unreasonably dangerous. Therefore, Delain has sufficiently proved the

unreasonably dangerous aspect at this summary judgment stage.

2. Safer Alternative Design

A “safer alternative design” is defined by Texas law as 

a product design other than the one actually used that in reasonable

probability: 

(1) would have prevented or significantly reduced the risk of the

claimant’s personal injury, property damage, or death without

substantially impairing the product’s utility; and 

(2) was economically and technologically feasible at the time the

product left the control of the manufacturer or seller by the

application of existing or reasonably achievable scientific

knowledge. 

Tex. Civ. Prac & Rem Code § 82.005(b). As the latch is currently manufactured,

the latch arm is sloped. See Fig. 1. Scates, Delain’s expert, opined that

removing the slope in the latch arm could dramatically improve the

susceptibility of the latch to being bypassed through downward force. This

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Figure 1

change would reduce the chance of failure due to downward force by 89% and

increase the adjustment range by 600%, which would reduce the chance that the

latch could be defeated by outward force. Both of these changes “significantly

reduce[] the risk of . . . injury” and are inexpensive and feasible with current

technology. There is, therefore, sufficient evidence of a safer alternative design

for Delain to survive summary judgment.

3. Causation

The final element of a design defect claim is causation. Texas law requires

that the defect be a “producing cause of the personal injury.” Tex. Civ. Prac. &

Rem. Code § 82.005(a)(2). “Texas courts define producing cause as one that is

‘a substantial factor in bringing about an injury, and without which the injury

would not have occurred.’” Goodner, 650 F.3d at 1044 (quoting Ford Motor Co.

v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007)). Dorel argues that Delain cannot

sufficiently prove causation for two reasons: (1) the testimony is speculative as

to whether the cabinet door was shut (but-for cause) and (2) the testimony does

not reveal whether K.A. could open the Drano can (proximate/substantial cause). 

As to the testimony regarding but-for causation, Bobbie testified in her

deposition that it was her habit to keep the cabinet door in question closed, and

Delain testified that it was her memory that the cabinet door was closed that

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evening. Causation can be proved by circumstantial evidence. Goodner, 650

F.3d at 1044. There is sufficient circumstantial evidence for a reasonable jury

to be able to find but-for causation. See Instone Travel Tech Marine & Offshore

v. Int’l Shipping Partners, Inc., 335 F.3d 423, 427 (5th Cir. 2003). On proximate

cause, Dorel’s argument about whether Delain can produce evidence of K.A.’s

ability to open the Drano can confuses what is necessary for Delain to make out

her design defect claim against Dorel. Evidence relating to K.A.’s opening of the

Drano can would be relevant in a products liability action against Drano’s

manufacturer, who has already settled, but is not necessary proof for Delain’s

claim against Dorel. Cf. Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d

700, 716 (5th Cir. 1986). Delain has adduced sufficient evidence on both the butfor and proximate cause aspects of causation.

This proof, in addition to sufficient evidence as to the dangerousness and

safer alternative design prongs, demonstrates that the district court erred in

granting summary judgment to Dorel on Delain’s design defect claim.

B. Negligence

The same proof that Delain has marshaled to support her design defect

claim is also sufficient to allow her to survive summary judgment on her

negligence claim. “A cause of action for negligence in Texas requires three

elements. There must be a legal duty owed by one person to another, a breach

of that duty, and damages proximately caused by the breach.” D. Houston, Inc.

v. Love, 92 S.W.3d 450, 454 (Tex. 2002). As to duty, “[a] manufacturer has a

duty to exercise reasonable care in designing and manufacturing a product.” 

Uniroyal Goodrich Tire Co. v. Martinez, 928 S.W.2d 64, 68 (Tex. App.—San

Antonio 1995, writ granted) (citing Gonzales v. Caterpillar Tractor Co., 571

S.W.2d 867, 871–72 (Tex. 1978)), judgment aff’d 977 S.W.2d 64 (Tex. 1998). The

breach is evidenced by the existence of a safer design alternative. Cf. Am.

Tobacco Co., 951 S.W.2d at 437. Finally, the prima facie evidence that the latch

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was a “producing cause” is sufficient to make out the causation requirement for

a negligent design action. See Uniroyal Goodrich Tire, 928 S.W.2d at 68 (“To

show that conduct caused an injury, the plaintiff must present evidence of cause

in fact and foreseeability.”). 

Moreover, we find that there is sufficient evidence to make out Delain’s

gross negligence claim as well. Gross negligence under Texas law requires (1)

an “extreme degree of risk,” Tex. Civ. Prac & Rem. Code § 41.001(11)(a), and (2)

a “conscious indifference to the rights, safety, or welfare of others.” GM v.

Sanchez, 997 S.W.2d 584, 595 (Tex. 1999). The extreme degree of risk is

manifested in evidence that Dorel marketed the latches to “keep little ones out

of hazardous cabinets and drawers” and as “durable locks that will help keep

your children out of cabinets and drawers that may be dangerous to them.” As

to conscious indifference, the evidence shows that Dorel received numerous

complaints about young children being able to defeat their latches, and yet,there

were no investigations undertaken on the part of Dorel. This awareness of the

problem establishes conscious indifference sufficiently for Delian’s claim to

survive summary judgment.

C. Warranty Claims

1. Express Warranty

The district court was correct in finding that Delain cannot make out an

express warranty claim against Dorel because it was Bobbie not Delain who

bought the latches. 

Successful assertion of breach of an express warranty requires: 1)

an affirmation or promise made by the seller to the buyer; 2) that

such affirmation or promise was part of the basis for the bargain,

e.g. that the buyer relied on such affirmation or promise in making

the purchase; 3) that the goods failed to comply with the affirmation

or promise; 4) that there was financial injury; and 5) that the failure

to comply was the proximate cause of the financial injury to the

buyer. 

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Lindemann v. Eli Lilly & Co., 816 F.2d 199, 202 (citing Gen. Supply & Equip.

Co. v. Phillips, 490 S.W.2d 913, 917 (Tex. Civ. App.—Tyler 1972, writ ref’d

n.r.e.)); see also Tex. Bus. & Com. Code § 2.313. This requires that “an

affirmation or promise” be made to the plaintiff in order for an express warranty

claim to stand. See Lujan v. Tampo Mfg. Co., 825 S.W.2d 505, 511 (Tex.

App.—El Paso 1992, no writ).

2. Implied Warranty

This contact between the seller and the plaintiff is not required, however,

in breach of implied warranty cases. See Garcia v. Tex. Instruments, Inc., 610

S.W.2d 456, 465 (Tex. 1980). To recover damages for breach of an implied

warranty of merchantability, a plaintiff must prove there was some defect in the

product, that is to say, a condition of the goods that renders them unfit for the

ordinary purpose for which they are used. See Otis Spunkmeyer, Inc. v. Blakely,

30 S.W.3d 678 (Tex. App.—Dallas 2000, no pet.); see also Tex. Bus. & Com. Code

§§ 2.314–15. Delain’s proof on the design defect also satisfies the requisite proof

to make out a claim on breach of implied warranty.

IV. CONCLUSION

For the foregoing reasons, we agree with the district court that Dorel is

entitled to summary judgment on the breach of express warranty claim but

reverse the district court’s judgment as to the design defect, negligence

(including gross negligence), and breach of implied warranty claims.

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