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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Thomas Neely,

Plaintiff,

v. 

National Cart Co., Inc.; Win-Holt 

Equipment Corp.; and Wal-Mart Stores, 

Inc.,

Defendants.

No. CV17-8235-PCT-DGC

ORDER 

Plaintiff Thomas Neely asserts products liability and negligence claims against 

National Cart Co. Inc. (“National”), Win-Holt Equipment Corp. (“Win-Holt”), and 

Wal-Mart Stores Inc. (“Wal-Mart”). Doc. 1. National and Win-Holt move for summary 

judgment. Doc. 100. The motion is fully briefed (Docs. 105, 112), and oral argument will 

not aid in the Court’s decision. See Fed R. Civ. P. 78(b).

1

 For the following reasons, the 

Court will deny the motion.

I. Background.

Plaintiff alleges that he was injured in January 2016 at a Wal-Mart store in Prescott 

Valley, Arizona, while making deliveries for a beverage distribution company. Doc. 1 

at 2-3. According to the complaint, Plaintiff’s duties involved placing bottled drinks onto 

a large cart, called the ST-Rocket Cart, to restock shelves around the store. Id. at 3. 

 

1 Wal-Mart opposes summary judgment for National and Win-Holt. Doc. 110.
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Plaintiff was pulling the ST-Rocket Cart behind him one day, loaded with hundreds of 

pounds of bottled drinks, when the cart collided into the back of his right heel and its

unguarded, sharp steel caused severe damage to his leg and Achilles tendon. Id. at 4-5.

Plaintiff, National, and Win-Holt agree on the following facts. National and 

Win-Holt are producers and vendors of the ST-Rocket Cart for Wal-Mart, but Wal-Mart 

had final decision-making power related to the cart’s design. Subtle differences exist 

between the ST-Rocket Carts supplied by National and Win-Holt, but they perform 

substantially the same. Wal-Mart’s Prescott Valley store has around 51 ST-Rocket Carts 

produced by National and Win-Holt. Plaintiff cannot remember whether he was using a 

National- or Win-Holt-made ST-Rocket Cart during the incident, and he remembers 

nothing distinctive about the cart he used. There is no longer surveillance footage of the 

incident, nor any evidence of whether Plaintiff was using a National- or Win-Holt-made 

cart. Docs. 106-1-3; 101 at 1-3. 

National and Win-Holt assert that the ST-Rocket Cart was designed by Wal-Mart 

alone and that Wal-Mart owns the patents for the ST-Rocket Cart. Doc. 101 at 1. 

According to National and Win-Holt, Wal-Mart contacted its manufacturers and directed 

them to produce the ST-Rocket Cart according to its design specifications. Id. at 2. 

Plaintiff disputes that Wal-Mart was the sole designer, and asserts that Wal-Mart 

collaborated with National and Win-Holt in the cart’s design except for certain parameters 

that Wal-Mart set. Doc. 106 at 2. He also disputes that the patents Wal-Mart owns describe 

the ultimate ST-Rocket Cart design. Id. Plaintiff asserts claims for strict liability product 

design and negligent product design against all three Defendants, and negligence against 

Wal-Mart alone. Doc. 1 at 2-8. 

II. Legal Standard.

A party seeking summary judgment “bears the initial responsibility of informing the 

district court of the basis for its motion, and identifying those portions of [the record] which 

it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, 
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viewed in the light most favorable to the nonmoving party, shows “that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a party who “fails to 

make a showing sufficient to establish the existence of an element essential to that party’s 

case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 

322. Only disputes over facts that might affect the outcome of the suit will preclude 

summary judgment, and the disputed evidence must be “such that a reasonable jury could 

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). 

III. Summary Judgment.

A. Arizona Law.

Strict liability for defective product design exists where a plaintiff can prove (1) the 

defendant is a manufacturer of the product, (2) the product was defective in design and 

unreasonably dangerous, (3) the defect existed when the product left the defendant’s 

control, (4) the defect proximately caused the injury, and (5) damages. Cox v. Ford Motor 

Co., No. 1 CA-CV 09-0288, 2010 WL 3656041, at *2 (Ariz. Ct. App. Sept. 21, 2010); see 

also Sw. Pet Prods., Inc. v. Koch Industr., Inc., 273 F. Supp. 2d 1041, 1051 (D. Ariz. 2003); 

Anderson v. Nissei A SB Mach. Co., Ltd., 3 P.3d 1088, 1092 (Ariz. Ct. App. 1999). Under 

a strict products liability theory, “the manufacturer can be held liable ‘despite its best 

efforts to make or design a safe product.’” Golonka v. Gen. Motors Corp., 65 P.3d 956, 

962 (Ariz. Ct. App. 2003). But “liability will not be imposed on an entity that ‘bears[s] no 

causal connection to the production or distribution of the product.’” Atone v. Greater Ariz. 

Auto Auction, 155 P.3d 1074, 1076 (Ariz. Ct. App. 2007).

To establish a negligence claim, including negligent design, a plaintiff must prove 

“(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach 

by the defendant of that standard; (3) a causal connection between the defendant’s conduct 

and the resulting injury; and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230 

(Ariz. 2007). “‘In order to succeed on a negligent design claim, a plaintiff must prove that 
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the manufacturer acted unreasonably at the time of design . . . in light of the foreseeable 

risk of injury from use of the product.’” Hess v. Bumbo Int’l Tr., CV 13-944 TUC DCB, 

2014 WL 12527216, at *7 (D. Ariz. Sept. 11, 2014) (citing Golonka, 65 P.3d at 962). 

“Negligence may consist of action or inaction” – it is “the failure to use reasonable care” 

or “act as a reasonably careful person would act under the circumstances.” Id. (quoting 

Golonka, 65 P.3d at 963).

B. Discussion.

National and Win-Holt argue that they are not subject to strict or negligent product 

liability because Wal-Mart had ultimate decision-making authority on the ST-Rocket 

Cart’s design, and Plaintiff cannot show that they were in a joint venture with Wal-Mart to 

design the cart. Docs. 100 at 6; 112 at 2. Plaintiff responds that National and Win-Holt 

are manufacturers under A.R.S. § 12-681(3) and are subject to liability because they 

worked collaboratively with each other and Wal-Mart to design the cart. Doc. 105 at 7-9, 

11, 14.2

1. Liability as Product Designer.

A product liability action “means any action brought against a manufacturer or seller 

of a product for damages for bodily injury, death or property damage.” A.R.S. § 12-681(5). 

A “manufacturer” means an “entity that designs, assembles, fabricates, produces, 

constructs or otherwise prepares a product or component part of a product before its sale.” 

A.R.S. § 12-681(3) (emphasis added). “Thus, by statute in Arizona, a designer is subject 

to strict liability for a design defect.” Burlington N. & Santa Fe Ry. Co. v. ABC-NACO, 

906 N.E. 2d 83, 91 (Ill. App. Ct. Mar. 31, 2009). In this case, National and Win-Holt are 

subject to strict liability if they “design[ed] . . . or otherwise prepare[d]” the ST-Rocket 

Cart or its “component part[s]” before sale to Wal-Mart. See A.R.S. § 12-681(3).3 

 

2

 National and Win-Holt argue that Plaintiff cannot establish causation because he 

cannot prove which of them manufactured the cart that caused his injury. Doc. 100 at 4. 

Plaintiff agrees, and therefore did not allege defective manufacturing claims. His 

complaint alleges defective product design. See Docs. 101 at 3; 106 at 3; 1 at 1-6. 

3 The parties do not cite, and the Court has not found, any Arizona case holding that 

entities involved to varying degrees in product design are subject to strict liability. But the 
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National and Win-Holt contend that Plaintiff’s defective and negligent design 

claims fail because he cannot show that they were in a joint venture with Wal-Mart and 

had “equal right of control” over the design. Docs. 100 at 6; 112 at 3. But Plaintiff does 

not rely on a joint venture theory of liability. See Docs. 1, 105. He instead claims that 

National and Win-Holt are liable in their own right as designers of the cart. National and 

Win-Holt argue that they did not truly design the ST-Rocket Cart because Wal-Mart had 

final decision-making authority, but the statute does not require them to be a sole designer

or to have control over the ultimate design. See A.R.S. § 12-681(3). 

National and Win-Holt argue that Dillard Department Stores, Inc. v. Associated 

Merch. Corp., 782 P.2d 1187 (Ariz. Ct. App. 1989), shows that “an entity with no control 

over the product cannot be liable under strict product liability.” Doc. 112 at 4. In Dillard, 

the Arizona Court of Appeals held that “a broker which neither sold, manufactured, 

distributed, nor had any ownership or control over a product and which made no profit 

from its sale but [only] brought the manufacturer and seller together” was not subject to 

strict products liability. 782 P.2d at 1188, 1192-93. Dillard involved a luggage strap 

defectively made by an unknown manufacturer, not defective design. Id. at 1188. The

Court of Appeals’ discussion centered on whether the broker was like a seller and is 

inapposite here. Id. at 1191. The court did not discuss § 12-681(3) or a product designer’s 

liability.4 

In sum, Plaintiff alleges that National and Win-Holt actively participated with 

Wal-Mart in the defective design of the ST-Rocket Cart and therefore are designers subject 

 

meaning of A.R.S. § 12-681(3) is clear, and the Court notes that Arizona cases have 

“extended strict liability to a variety of enterprises that do not fit a common notion of 

manufacturer or seller,” recognizing that “strict product liability of an enterprise does not 

turn upon a precise definitional usage of [those] term[s].” Unique Equip. Co., Inc. v. TRW 

Vehicle Safety Sys., Inc., 3 P.3d 970, 976 (Ariz. Ct. App. 1999) (collecting cases); see also 

Torres v. Goodyear Tire & Rubber Co., 786 P.2d 939, 943 (Ariz. 1990); Bullock v. Zimmer, 

Inc., No. CV 10-334-PHX-SRB, 2010 WL 11515474, at *3 (D. Ariz. June 8, 2010) 

(collecting cases). 

4 Defendants also cite the Restatement (Second) of Torts § 404, Comment A, which 

states that an independent contractor is not liable for manufacturing a product that is 

defectively designed, unless the defect “is so obviously bad that a competent contractor 

would realize that there was a grave chance that his product would be dangerously unsafe.” 

Doc. 112 at 5. But the comment concerns a non-designing manufacturer.
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to liability under § 12-681(3). Defendants cite no authority requiring Plaintiff to show that 

they were in a joint venture with Wal-Mart to design the cart. As alleged designers of the 

cart, National and Win-Holt may be strictly liable under Arizona law. The Court will not 

grant summary judgment on this basis.

2. Evidence of National and Win-Holt’s Design Involvement.

National and Win-Holt argue that the evidence shows Wal-Mart was the sole 

designer. Docs. 100 at 6; 112 at 3. But the record shows a dispute of fact regarding whether 

National and Win-Holt were active and collaborative design participants. 

Muriel McSweeny, the senior fixture buyer of material-handling and a Wal-Mart 

employee for over 30 years, testified to the following. See Doc. 116-1 at 3, 4 (under seal). 

Other than three of Wal-Mart’s specifications, changes to the ST-Rocket Cart (from an 

earlier design) were the result of collaboration between Wal-Mart, National, and Win-Holt, 

including the swivel casters placement and design of the pull handle. Id. at 6-7, 10. When 

Wal-Mart received design-change suggestions from its internal safety department, it would 

contact National or Win-Holt and discuss how to incorporate the idea into the design. Id.

at 8. 

Dennis Salcedo, chief engineer of Win-Holt, testified to the following. See Doc. 

106-2 at 2, 10. While designing the ST-Rocket Cart, National and Win-Holt submitted 

versions of a label, and Wal-Mart used National’s pictogram and Win-Holt’s text. Id. at 10. 

After hearing of injuries related to a prior cart model, Win-Holt suggested a safety latch to 

Wal-Mart, which was incorporated into the design. Id. National then reviewed the safety 

latch suggestion and offered a different version of the same concept. Id. Win-Holt and 

National communicated regarding the ST-Rocket Cart’s design. Id. at 10-11.

Robert Unnerstall, Jr., President of National, testified to the following. Doc. 106-4 

at 3. The decision to put the swivel castors at the edge of the cart was a collaborative 

decision between the three entities. Id. As part of the re-design effort, Wal-Mart asked 

National to design the ST-Rocket Cart’s handle. Id.
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Plaintiff’s evidence suggests that National and Win-Holt communicated with each 

other and with Wal-Mart regarding design changes, that many differences between the AL 

and ST-Rocket Cart were the result of collaboration between the three entities, and that 

some of National and Win-Holt’s design suggestions were incorporated into the cart’s 

design. A dispute of fact exists about whether National and Win-Holt designed the 

ST-Rocket Cart with Wal-Mart. The Court will deny Defendants’ summary judgement 

motion.5 

IV. Motions to Seal.

Pursuant to the parties’ protective order (Doc. 44), National and Win-Holt have

jointly filed a motion to seal two pages of a deposition attached as Exhibit 4 to their 

statement of facts (Doc. 102), and Exhibits 1 and 7 of their response to Plaintiff’s separate 

statement of facts (Doc. 114). Redacted versions of the exhibits are filed on the docket. 

The lodged pages include information about Wal-Mart’s business dealings, and the Court 

finds compelling reasons for sealing them. See Pintos v. Pac. Creditors Ass’n, 605 F.3d 

665, 677-78 (9th Cir. 2010). For the same reasons, the Court will grant Plaintiff’s motion 

to seal. Doc. 116. 

Wal-Mart also moves to file under seal unredacted versions of several exhibits to its 

statement of facts, filed in opposition to National and Win-Holt’s summary judgment 

motion. Docs. 108, 109. The lodged documents contain confidential and proprietary 

information about Wal-Mart, but the Court did not consider Wal-Mart’s motion and 

attached materials and will deny the motion to seal.

 

 

5

 Defendants argue that even if they are subject to liability as designers, Plaintiff 

must still show which manufacturer’s cart hit him. Doc. 112 at 9. This argument was not 

raised in National and Win-Holt’s original motion for summary judgment and cannot be 

asserted for the first time in a reply brief. See Gadda v. State Bar of Cal., 511 F.3d 933, 

937 n.2 (9th Cir.2007); Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837 n.6 (9th Cir.2004). 

The Court also notes, however, that no material differences exist between their carts – a 

point Defendants concede. Thus, regardless of whose cart actually hit Plaintiff, the 

evidence at trial may show that both National and Win-Holt were designers of the cart.

The Court makes no determination about the specificity with which Plaintiff must prove 

each Defendant’s involvement in the design, but it would seem Plaintiff must show that a 

Defendant helped design a feature of the cart that caused his injury.
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IT IS ORDERED:

1. Defendants’ motion for summary judgment (Doc. 100) is denied. 

2. The pending motions to seal filed by National Cart Co. and Win-Holt 

Equipment Corporation (Docs. 102,114, and 116) are granted, but Wal-Mart’s motion to 

seal (Doc. 108) is denied. The Clerk is directed to accept for filing under seal the 

documents lodged on the Court’s docket at Doc. 103, Exhibits A and H to Doc. 106, and 

Doc. 115, keeping the existing document numbers.

3. The Court has set a telephone conference with the parties to set a final pretrial 

conference and trial date for August 20, 2019 at 4:30 p.m. Counsel for Plaintiff shall 

initiate a conference call to include all counsel and the Court. If a dial-in number is to be 

used, counsel for Plaintiff shall provide the dial-in number to all counsel and the court no 

later than August 21, 2019 at 12:00 noon.

Dated this 5th day of August, 2019.