Tryon v. Utah Shelter

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MARY TRYON, Plaintiff/Appellant,

v.

UTAH SHELTER SYSTEMS INC, Defendant/Appellee.

No. 1 CA-CV 22-0502
FILED 5-11-2023

Appeal from the Superior Court in Maricopa County
No. CV2017-094749
The Honorable Stephen M. Hopkins, Retired Judge

AFFIRMED

COUNSEL

Robinson & Allen, P.L.C., Mesa
By Dale W. Robinson
Counsel for Plaintiff/Appellant

Frame Law PLLC, Phoenix
By Paul K., Frame, Kristy M. Frame
Counsel for Defendant/Appellee
 TRYON v. UTAH SHELTER
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Angela K. Paton joined.

W I L L I A M S, Judge:

¶1 Mary Tryon appeals the superior court’s grant of summary
judgment for Utah Shelter Systems, Inc. (“USS”). We affirm summary
judgment for USS.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 William Tryon, Mary’s husband, purchased a steel hatch door
and two corrugated steel tubes from USS. The Tryons initially intended to
build a nuclear blast shelter using these and other materials purchased from
third parties.

¶3 At some point, the Tryons instead decided to use one of the
tubes as a storage container. In 2016, William had a steel door he purchased
from a third party installed to seal one side of the tube, buried the tube
horizontally on the Tryons’ property, and filled it with food and supplies.
Once buried, the container could only be accessed by ladder through
another vertically placed tube that the Tryons had purchased from a third
party.

¶4 On August 2, 2016, manure contaminated floodwaters flowed
onto the Tryons’ property and into the access tube that was open to the
surface. Water then flowed down into the storage container. William placed
a pump in the access tube six days later to remove the water from the
storage container. William entered the access tube later that day, was
overcome by a lack of oxygen and carbon dioxide buildup, and died.

¶5 Mary Tryon sued USS, the City of Phoenix, and Cox Cactus
Farm, L.L.C. for wrongful death. As relevant to this appeal, Mary alleged
USS “failed to provide proper ventilation and/or adequate warning to
purchasers of its underground shelters, of the inherent and significant
danger of enclosed storage containers to cause serious injury or death
because of potential oxygen depletion and/or the accumulation of
poisonous gas in the enclosed space.”

2
 TRYON v. UTAH SHELTER
Decision of the Court

¶6 USS moved for summary judgment, contending the tube was
not unreasonably dangerous when sold and “did not present hidden
dangers not contemplated by the ordinary user.” USS also contended the
risk of oxygen depletion was obvious and known.

¶7 The superior court granted USS’s motion concluding it owed
no duty to warn because “the risk of this confined space is obvious to ‘every
adult’” and because William “by virtue of attempting to design and build
his own shelter was presumably more aware of the danger (i.e., the need
for outside ventilation).” It also determined USS was a “component or
‘remote’ supplier.” Quoting a treatise that relied on Restatement (Third) of
Torts: Products Liability § 5 (1998), the court concluded that a “supplier of
raw materials or component parts normally has no duty to warn end users
of risks arising out of the incorporation of the component into a larger,
finished product.”

¶8 Mary moved for reconsideration and a new trial. Both were
denied. She then settled her claims against the City of Phoenix and Cox
Cactus Farm, L.L.C. Mary timely appealed the court’s final judgment. We
have jurisdiction under Article 6, Section 9, of the Arizona Constitution and
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶9 Summary judgment is appropriate when there is “no genuine
dispute as to any material fact and the moving party is entitled to judgment
as a matter of law.” Ariz. R. Civ. P. 56(a). We review a grant of summary
judgment de novo and view the evidence and reasonable inferences in a light
most favorable to Mary as the non-moving party. Zambrano v. M & RC II
LLC, 254 Ariz. 53, 58, ¶ 9 (2022).

¶10 “[B]oth negligence and strict liability standards impose a duty
to produce products with appropriate warning instructions . . . .” Dole Food
Co. v. N.C. Foam Indus., Inc., 188 Ariz. 298, 301 (App. 1996) (citation omitted);
see also A.R.S. § 12-681(5) (defining “products liability action” to include
“any action brought against a manufacturer or seller of a product for
damages for . . . the failure to warn or protect against a danger or hazard in
the use or misuse of the product”). The duty to warn arises if a product,
even if perfectly manufactured, is unreasonably dangerous without
appropriate warnings of its dangerous characteristics. Wilson v. U.S.
Elevator Corp., 193 Ariz. 251, 254 (App. 1998). It requires manufacturers and
sellers to “warn consumers of foreseeable risks of harm from using their
products.” See Watts v. Medicis Pharm. Corp., 239 Ariz. 19, 24, ¶ 13 (2016)

3
 TRYON v. UTAH SHELTER
Decision of the Court

(citing Restatement (Third) of Torts: Prod. Liab. § 2 (1998)). The duty
therefore only extends to dangers the manufacturer or seller knew or
should have known when the product was distributed or sold. Powers v.
Taser Int’l., Inc., 217 Ariz. 398, 404-05, ¶¶ 25-26 (App. 2007).

¶11 Mary contends USS owed a duty to warn because it knew the
tube “was designed to be buried underground and to be sealed up to
become a confined space.” But she offered no evidence to suggest the tubes
were designed to be used as underground storage containers. And while
she cites out-of-state caselaw to contend that a manufacturer or seller owes
a duty to warn if it “know[s] how products are going to be used and the
danger of those potential uses,” she presented no evidence to show USS
knew or reasonably should have known that the Tryons would, years after
their purchase, convert one of the tubes into an underground storage
container. See Restatement (Third) of Torts: Prod. Liab. § 2, cmt. m (1998)
(“[I]n connection with a claim of inadequate . . . warning, plaintiff should
bear the burden of establishing that the risk in question was known or
should have been known to the relevant manufacturing community.”). The
record instead shows the Tryons sent USS a sketch five months after they
purchased the tubes depicting them as parts of a complex nuclear blast
shelter. Roughly five years later, USS sent the Tryons a packet of shelter
installation “suggestions” and asked if the shelter depicted in the 2010
sketch was “still [their] intention.” There is no response in the record.

¶12 Mary also cites Maake v. Ross Operating Valve Co., 149 Ariz. 244
(App. 1985), for the proposition that component part manufacturers can
owe end consumers a duty to warn. There, the plaintiff suffered injury
when the power press he was operating made an unexpected additional
power stroke. Maake, 149 Ariz. at 245. The machine’s actuating system
consisted of two palm buttons and a “Handsaver” pneumatic valve that
Ross Operating Valve Company manufactured but did not install. Id. at
245-46.

¶13 We determined a reasonable jury could have found Ross’s
buttons and valve were unreasonably dangerous absent “a warning as to
the requirement of additional components” needed to prevent unexpected
power strokes. Id. at 247. But Maake differs from the present case because
there was ample evidence showing Ross knew the Handsaver valve and
palm buttons were installed on power presses, making their use on those
machines foreseeable. Id. Ross also admitted it “knew little about how [its
valves and buttons] were used on power presses” despite knowing for
nearly twenty years that they were used in that manner. Id. Here, in
contrast, there is no evidence to suggest USS knew of the Tryons’

4
 TRYON v. UTAH SHELTER
Decision of the Court

underground storage plans until after the accident occurred, nor is there
any evidence to suggest others have installed USS tubes in a comparable
manner.

¶14 Mary also cites deposition testimony from USS personnel
suggesting they knew confined spaces can be dangerous. But Mary’s expert
witness, Dr. Paul Rosenfeld, conceded the tube “was not a confined space
at the time of sale.” The tube only became a confined space when William
had one end sealed years later. There is no record evidence to suggest USS
knew or reasonably should have known the Tryons would install the tube
in this manner. See Restatement (Third) of Torts: Prod. Liab. § 2, cmt. m
(1998) (“Product sellers and distributors are not required to foresee and take
precautions against every conceivable mode of use and abuse to which their
products might be put.”); see also Powers, 217 Ariz. at 405, ¶ 25 (citing cmt.
m). In any event, the purchase invoice for the tubes included the following
statement:

Do not place these shelters into the water table or in a
locations [sic] where water can accumulate.

Mary disputed that this statement constituted a “warning,” but Dr.
Rosenfeld stated that it was. USS presented an undisputed expert affidavit
that the Tryons installed the tube in an area where water could, and did,
accumulate.

¶15 Mary also cites Dr. Rosenfeld’s opinion that USS should have
communicated “requirements for air monitoring . . . and forced ventilation”
and advised the Tryons to “install a ventilation system and an air
monitoring device before entering the [storage container].” USS contends
that Dr. Rosenfeld is not qualified to opine as to what warnings USS should
have provided. But we need not reach that issue here.

¶16 The record indicates the Tryons had purchased a ventilator
from a third party but had not installed it. USS also offered undisputed
testimony that the ventilator would not have worked in this case because
the storage container was “filled to the ceiling with debris and water.” Mary
thus did not show that the lack of ventilation warnings caused or
contributed to the accident. See Raschke v. Carrier Corp., 146 Ariz. 9, 12 (App.
1985) (affirming summary judgment for the defendant because “the failure
to warn was not the proximate cause of the accident”).

5
 TRYON v. UTAH SHELTER
Decision of the Court

CONCLUSION

¶17 We affirm summary judgment for USS. We do not reach the
superior court’s determination that any dangers presented by the storage
container were open and obvious. USS may recover its taxable costs
incurred in this appeal upon compliance with Arizona Rule of Civil
Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

6