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Obomsawim v. Tempur-Pedic North America, LLC

United States District Court, D. Maryland

January 5, 2015



WILLIAM M. NICKERSON, Senior District Judge.

Before the Court is a Motion for Summary Judgment and Declaratory Judgment by Defendant Tempur-Pedic North America, LLC (Tempur-Pedic), ECF No. 97, a Motion for Summary Judgment by Third-Party Defendant and Fourth-Party Plaintiff Old PFS, Inc. (Purnell), [1] ECF No. 98, and a Motion for Summary Judgment by Fourth-Party Defendant Cruz Transportation Services (Cruz). ECF No. 100. The motions are fully briefed and ripe for review. Upon a review of the papers, facts, and applicable law, the Court determines (1) that no hearing is necessary, Local Rule 105.6, (2) Tempur-Pedic's motion will be granted in part and denied in part, and (3) Purnell and Cruz's motions will be denied.


Robbin Obomsawim brings this negligence action as legal representative of her deceased mother, Esther Whitman, against Tempur-Pedic for injuries sustained by Ms. Whitman allegedly as the result of plastic covering left on the base of her Tempur-Pedic Ergo bed. Ms. Obomsawim ordered over the phone from Tempur-Pedic a king-sized Cloud mattress and Ergo adjustable base on April 24, 2012, for her mother. The king-sized bed consists of two twin long mattresses and two Ergo adjustable bases that are fixed together at the time of delivery. Tempur-Pedic sent the products to its contractor Purnell. Purnell then transferred the mattress and bed to Cruz for final delivery to Ms. Whitman's Dayton, Maryland, home.

The Tempur-Pedic mattress and base are both shipped with a plastic covering to provide protection during transportation and delivery. Delivery personnel are required to remove all plastic packaging from delivered products prior to installation. In the case of Ms. Whitman's delivery, this step was incomplete, in that the plastic covering was not removed from the base and the bed was assembled with the plastic in place, even though the bed is not designed to be used with any packaging or shipping materials remaining. Ms. Obomsawim alleges that this remaining plastic caused the mattress to slide off the base, which caused Ms. Whitman to fall off of the bed on May 5, 2012. As a result of her fall, Ms. Whitman suffered a broken leg. Tempur-Pedic and Cruz allege that the fall was instead due to Ms. Whitman's generally poor health.

At the time of this incident, Tempur-Pedic had a longstanding contractual relationship with Purnell to deliver Tempur-Pedic products in DC, Maryland, and Virginia. Tempur-Pedic provided training materials to Purnell regarding the safe delivery and installation of its products. Purnell, in turn, was tasked with training its employees on the proper delivery and set-up of the beds, including removing products from packaging and shipping materials. With Ms. Whitman's order, the deliverymen with Cruz claim that they received no instruction on the installation of the bed, and believed the plastic was supposed to remain on the base. Ms. Obomsawim contends that she and her husband asked for the plastic to be removed at the time of installation. Cruz alleges that the family actually requested that the plastic be left on.

Under the terms of the Home Delivery Shipper-Carrier Transportation Agreement ("Agreement") between Tempur-Pedic and Purnell, Purnell was not permitted to use third-party subcontractors to deliver Tempur-Pedic products without its prior written consent. ECF No. 97-3 ¶ 10. If Purnell did not obtain prior written consent to use a specific subcontractor, then Purnell was deemed "in material breach of this Agreement [and]... liable for... the negligence and willful misconduct of any such Subcontractor to the extent as if [Purnell] had performed the service." Id . There is no written evidence suggesting that Tempur-Pedic approved Purnell's engaging Cruz to deliver its products. The Agreement also provided that Purnell would defend, indemnify, and hold Tempur-Pedic harmless from claims, costs, and expenses arising out of "the negligence or willful misconduct of [Purnell] or any Subcontractor." Id . ¶ 15.

On November 20, 2012, Ms. Obomsawim filed this action on behalf of Ms. Whitman against Tempur-Pedic asserting claims of product liability and negligence. In April, 2013, Tempur-Pedic filed a Third Party Complaint against Purnell, alleging that it was responsible for any negligent acts that produced Ms. Whitman's injury and must indemnify Tempur-Pedic should it be held liable. ECF No. 31. In August of the same year, Purnell then filed a Fourth Party Complaint against Cruz, alleging that Cruz was in fact the negligent party responsible for the injury, and requesting indemnification. ECF No. 57. Ms. Obomsawim has not cross filed to bring a direct action against either Purnell or Cruz.


Summary judgment is appropriate if the record before the court "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). See also Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (noting that trial judges have "an affirmative obligation... to prevent factually unsupported claims and defenses from proceeding to trial" (internal quotation marks omitted)). A fact is material if it might "affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there is a genuine issue of material fact, the Court "views all facts, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party." Housley v. Holquist, 879 F.Supp.2d 472, 479 (D. Md. 2011) (citing Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987)).


A. Ms. Obomsawim's Negligence Claims

Tempur-Pedic's motion for summary judgment requests judgment on the ground that it did not violate a duty of care owed to Ms. Whitman and it is not liable for the actions of Purnell or Cruz. Purnell then filed a motion for summary judgment that largely adopts Tempur-Pedic's motion. ECF No. 98 at 4 ("[Tempur-Pedic] argues strenuously and ultimately, persuasively, that no evidence exists which proves that they negligently breached a duty to Plaintiff."). Purnell also underscores the lack of master-servant relationship between it and Tempur-Pedic and it and Cruz. Id. at 5. Finally, Cruz has also filed a Motion for Summary Judgment. ECF No. 100. In it, Cruz, as Purnell, adopts Tempur-Pedic's motion, but also adds arguments of its own: that Cruz itself engaged in no negligent activity and even if it did, it could not be imputed to Tempur-Pedic; that Ms. Obomsawim violated a standard of care to Ms. Whitman by failing to remove the plastic herself;[2] and that Ms. Obomsawim's expert testimony is unreliable. Because the three motions before the Court are similar in substance with respect to Ms. Obomsawim's claim of negligence, the Court shall address Cruz and Purnell's motions collectively with the portion of Tempur-Pedic's motion that addresses this specific issue of negligent installation.

Tempur-Pedic acknowledges that it had a duty of reasonable care to Ms. Whitman, but avers that it met its duty in arranging to have the mattress delivered to her. Tempur-Pedic argues that there is no breach of duty in this case because it used reasonable care "by hiring a reputable delivery company... to deliver the bed, .... provide[ing] careful instructions to Purnell to ensure that Purnell delivered and installed Tempur-Pedic products properly, ... [and] instruct[ing] Purnell to remove all plastic packaging from Tempur-Pedic products prior to installation." ECF No. 97-1 at 9. Because it engaged Purnell to deliver the bed and mattress and provided instructions related to delivery, Tempur-Pedic concludes that it "took all reasonable steps necessary to ensure that its products were delivered and set up ...

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