Rosemary Harrison v. B. F. Goodrich Company
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00271-COA
ROSEMARY HARRISON, ADMINISTRATRIX OF
THE ESTATE OF SIDNEY HARRISON, DECEASED,
INDIVIDUALLY AND ON BEHALF OF THE
WRONGFUL DEATH BENEFICIARIES OF SIDNEY
HARRISON, DECEASED
v.
B. F. GOODRICH COMPANY
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEE
1/3/2002
HON. ANDREW C. BAKER
TALLAHATCHIE COUNTY CIRCUIT COURT
C. KENT HANEY
DANA J. SWAN
O. STEPHEN MONTAGNET
W. THOMAS MCCRANEY
CIVIL - WRONGFUL DEATH
SUMMARY JUDGMENT IN FAVOR OF THE
DEFENDANT
AFFIRMED - 03/09/2004
BEFORE MCMILLIN, C.J., IRVING AND MYERS, JJ.
MCMILLIN, C.J., FOR THE COURT:
¶1.
This case comes before the Court as an appeal from a grant of summary judgment in favor of the
defendant, B. F. Goodrich Company (hereafter “Goodrich”). It is a wrongful death claim brought on behalf
of the wrongful death beneficiaries of Sidney Harrison, who died when the van in which he was riding as
a passenger overturned. The beneficiaries were the plaintiffs in the trial court and are the appellants before
this Court. For the sake of brevity, they will be referred to as “the Beneficiaries.” The claim against
Goodrich consisted of an allegation that the accident resulted when a defectively manufactured tire bearing
the B. F. Goodrich name blew out.
¶2.
The trial court granted summary judgment based on the uncontested fact that Goodrich did not
manufacture or market the allegedly defective tire but that it had been manufactured by another entity having
no business connection to Goodrich beyond the fact that Goodrich had entered into a licensing agreement
permitting the manufacturer to place Goodrich’s name on the tire.
¶3.
It is from that ruling that the Beneficiaries have perfected this appeal.
¶4.
There is an additional issue on appeal involving an unsuccessful attempt by the Beneficiaries to
amend their complaint to bring in as additional defendants those entities believed to have been engaged in
the actual manufacture of the blown tire.
¶5.
We find no reversible error in the trial court’s decision to grant summary judgment in favor of
Goodrich. We also conclude that the motion for leave to amend was never properly presented to the trial
court for decision and must be deemed as having been abandoned; the result being that the matter may not
be raised on appeal.
I.
Summary Judgment
¶6.
The evidence is undisputed that the named defendant, B. F. Goodrich Company, was not directly
involved in the design, manufacture, or distribution into commerce of the allegedly defective tire. By
affidavits and through depositions, uncontradicted facts emerged showing that Goodrich ceased all tire
manufacturing or marketing activities no later than 1988, and that the tire in question, though bearing the
trademark “B. F. Goodrich,” was not manufactured until approximately 1991. By that time, another
2
manufacturing entity was producing tires bearing the Goodrich trademark under authority of a trademark
licensing agreement between that entity and Goodrich.
¶7.
The direct allegations in the original complaint against Goodrich set out a products liability claim
based on strict liability in tort. Products liability claims based on principles of strict liability for defectively
manufactured items were first recognized in Mississippi when the Mississippi Supreme Court applied
Section 402A of the Restatement (Second) of Torts in State Stove Manufacturing Co. v. Hodges, 189
So. 2d 113, 118 (Miss. 1966), which involved the explosion of a water heater. The overarching principles
of strict liability for manufacturers and marketers of goods have since been codified by the Legislature in
Section 11-1-63 of the Mississippi Code.
¶8.
Both the original restatement relied on by the supreme court and the legislatively enacted provisions
governing strict liability apply by their terms to those actually engaged in the manufacture and marketing of
a product. The restatement dealt exclusively with the liability of a “seller,” which necessarily included the
manufacturer of a product who put the product into the stream of commerce even though there may have
been one or more intermediate sales of the product before it reached the consumer or user who ultimately
suffered injury due to the product’s defective or dangerous condition. It is plain that, on the facts of this
case, Goodrich cannot be brought into the definition of one on whom strict liability is placed by virtue of
Section 402A. The present statute, Section 11-1-63, by its explicit terms, confines product liability claims
to manufacturers or sellers of products. Miss. Code Ann. § 11-1-63(a) (Supp. 2003). Again, because
Goodrich fits neither of these descriptive terms on the uncontroverted facts before the Court, we are
satisfied that Goodrich was entitled to summary judgment on the theory of recovery advanced on the face
of the complaint.
3
¶9.
However, though there has been no subsequent amendment to the complaint to allege some
alternate theory of recovery, it is evident from our review of the briefs and record before this court that the
Beneficiaries, by agreement or at least acquiescence, were permitted to raise a separate but related theory
of recovery against Goodrich. That theory of recovery has been discussed under the general heading of
the “apparent manufacturer” theory. That theory of recovery was set out in Section 400 of the Restatement
(Second) of Torts and states, in part, that “[o]ne who puts out as his own product a chattel manufactured
by another is subject to the same liability as though he were its manufacturer.” Restatement (Second) of
Torts § 400 (1965). Other courts have made short work of such claims, pointing out that the section
imposes liability only on a party somehow engaged in “putting out” the item and observing that a trademark
licensor is not engaged in any aspect of “putting out” the product.
¶10.
By way of example, in Affiliated FM Insurance Co. v. Trane Co. 831 F.2d 153, 156 (7th Cir.
1987), strict liability was sought to be imposed against Trane, who had designed heating equipment that
caused a fire, though the equipment itself had been manufactured by Trane-Canada, a legally distinct entity.
The court refused, saying that Trane had no part in the “putting out” of the heater since it “was not involved
in the manufacture, sale or installation of the heater.” Id. at 156.
¶11.
In a case specifically dealing with the liability of a trademark licensor for defective products bearing
the licensor’s logo, the United States District Court for the Northern District of Mississippi considered a
personal injury claim caused by an exploding vehicle battery marketed as a “NAPA 7000 series battery”
and purchased from a parts house that was a member of the National Automotive Parts Association (hence
NAPA). Harmon v. Nat’l Auto. Parts Ass’n, 720 F. Supp 79 (N.D. Miss. 1989). The court granted
summary judgment to NAPA when it was shown that NAPA was a membership organization providing
marketing and consulting services to its members and that it licensed the NAPA trademark to several
4
member organizations engaged in the manufacture and marketing of parts under the NAPA label. Id. at
80. The court concluded that there was no authority to impose strict liability on NAPA in those
circumstances where it was not shown to have been engaged in either the manufacture or distribution of
the product. Id.
¶12.
There is one possible distinction between the Harmon case and the one now before us since the
court in Harmon went on to specifically note that NAPA did not receive “any sort of financial benefit from
the licensing of the trademark.” Id. In the case before our Court, the record reveals that Goodrich
extracted a one-time payment of $1,000,000 for the right to use the B. F. Goodrich logo. Goodrich, in
its brief, attempts to make the point that no money was received by it for the trademark license in the year
that the tire was manufactured; however, the method of payment contractually agreed upon – whether a
one-time lump sum payment or an on-going series of payments – does not, in our view, alter the fact that
Goodrich was compensated for the use of its trademark name, whereas in the Harmon case, NAPA was
not. The question then becomes whether that distinction compels a different outcome.
¶13.
We determine that it does not. The core fact that Goodrich was not directly involved in the
manufacture or distribution of the allegedly faulty tire remains unchanged, and products liability law limits
itself to imposing liability on entities engaged in the actual production or sale of goods.
¶14.
A more compelling argument for liability might be made if it was alleged that an individual
specifically selected or relied upon a product on the determination that it bore the trademark of a particular
business entity that the individual, for whatever reason, felt comfortable in trusting. In that situation, a
business purposely inducing a belief through use of its trademark logo that it was the producer of the
product might arguably incur some liability to one injured from such a defective product because of the
specific – and justified – belief that the product was manufactured by the company whose name appears
5
thereon, even if it was shown that the name appeared solely as the result of a trademark licensing
arrangement. That claim, however, is not one that falls within the area of products liability law, which
imposes strict liability on actual manufacturers and sellers and is the theory of recovery under which the
Beneficiaries pursued their claim.
¶15.
The federal district court in Harmon found the proposition that liability might be established on that
alternative basis to be “an interesting one,” but concluded that it was not relevant to the case before it since
there was neither an allegation nor proof that Harmon had purchased or used the battery based on an
understanding that it had been manufactured by NAPA and that NAPA was an entity in which, for some
articulated reason, he elected to place substantial trust. Id. at 81. This case is in the same posture.
¶16.
The evidence shows that Harrison was a passenger in a vehicle belonging to the State of
Mississippi, and there is no assertion nor proof that he elected to ride in the vehicle because he was led to
believe that the tires, or at least one tire, on the vehicle had been manufactured by Goodrich, a company
in which he was prepared to put his trust. For the same reason set out by the federal district court, we find
it unnecessary to reach this “interesting question” of a purposely-induced misunderstanding of what entity
actually manufactured a product that proved to be unreasonably hazardous.
¶17.
In concluding that there is no liability for an allegedly defective product on the part of a trademark
licensor who was not involved in the design, manufacture, or sale of the product under the facts before us,
we note that this appears in accord with the applicable provisions in Section 14 of the Restatement (Third)
of Torts, dealing with apparent manufacturer issues. The official comment to the section contains the
following commentary:
The rule stated in this Section does not, by its terms, apply to the owner of a trademark
who licenses a manufacturer to place the licensor’s trademark or logo on the
manufacturer’s product and distribute it as though manufactured by the licensor. In such
6
a case, even if purchasers of the product might assume that the trademark owner was the
manufacturer, the licensor does not “sell or distribute as its own a product manufactured
by another.” Thus, the manufacturer may be liable under §§ 1-4, but the licensor, who
does not sell or otherwise distribute products, is not liable under this Section of this
Restatement.
Trademark licensors are liable for harm caused by defective products distributed under the
licensor’s trademark or logo when they participate substantially in the design, manufacture,
or distribution of the licensee’s products. In these circumstances they are treated as sellers
of the products bearing their trademarks.
Restatement (Third) of Torts: Product Liability § 14, cmt. d (1998).
¶18.
We conclude that the trial court was correct in granting summary judgment in favor of Goodrich,
and we affirm as to that issue on appeal.
II.
Leave to Amend
¶19.
The Beneficiaries, after the hearing on Goodrich’s summary judgment motion but while the trial
court still had the motion under advisement, filed a motion for leave to amend the complaint to bring in as
additional defendants certain entities that were said to have been involved in the manufacture of the tire.
These additional defendants had apparently been unearthed after it came to light that Goodrich had not
been the tire’s actual manufacturer or marketer. The motion was filed on October 1, 2001.
¶20.
Within a few days of the filing of the motion for leave to amend, the court entered a written opinion
ruling in Goodrich’s favor on the summary judgment motion. A subsequent final judgment was entered on
January 17, 2002. Neither the court’s opinion nor the formal final judgment made mention of the motion
for leave to amend. The Beneficiaries filed a notice of appeal from that judgment without making any effort
to obtain a hearing or ruling on their pending motion for leave to amend. Now, in this appeal, the
Beneficiaries contend that it was reversible error for the trial court to not grant the leave to amend.
7
¶21.
The denial of a motion by the district court, although not formally expressed, may be implied by the
entry of final judgment (which is in effect an overruling of pending pretrial motions) or of an order
inconsistent with the granting of the relief sought by the motion. Addington v. Farmer's Elevator Mut.
Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981).
¶22.
In the case before us, the motion for leave to amend was filed on October 1, 2001. Although there
is no evidence in the record that a copy of the motion was forwarded to the trial court, we note the standing
requirement of Rule 4.03 of the Uniform Rules of Circuit and County Court that “[t]he moving party at the
same time [as the motion is filed with the clerk] shall mail a copy thereof to the judge presiding in the action
. . . .” URCCC 4.03(1). The final judgment, based on the trial court’s ruling on the summary judgment
motion, was not entered until January 17, 2002. The Beneficiaries were certainly aware of the fact that,
during this extended period of over three and one-half months, the trial court had a motion for summary
judgment under advisement, yet the record does not reflect any effort on the Beneficiaries’ part to bring
the motion for hearing. “It is the duty of the movant, when a motion . . . is filed . . . to pursue said motion
to hearing and decision by the court.” URCCC 2.04.
¶23.
Considering all of the foregoing circumstances, we conclude that, in the situation where the court
was actually aware of the motion (or certainly would have been on notice of the pending motion had the
requirements of Rule 4.03 been followed) and where the Beneficiaries permitted over three and one-half
months to pass without making any effort to pursue a ruling on the motion in the face of knowledge that the
trial court had taken the summary judgment motion filed against them under advisement, the Beneficiaries
must be seen as having abandoned their motion. By suffering the entry of a final judgment against them on
these facts without having pursued an actual ruling by the trial court on the merits of their motion to amend
or by attempting to bring the matter before the trial court in a post-judgment motion under Rules 59 or 60
8
of the Mississippi Rules of Civil Procedure, they must now be barred from an attempt to raise for the first
time in this appeal the issue of whether the motion should, or should not, have been granted by the trial
court. Mitchell v. Glimm, 819 So. 2d 548, 552 (¶11) (Miss. Ct. App. 2002) (citing Gatlin v. State, 724
So. 2d 359, 369 (¶43) (Miss. 1998)).
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF TALLAHATCHIE COUNTY IS
AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANTS.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
9
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
