                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 06-4141
                                 ___________

Depositors Insurance Company;             *
Brooke Miller,                            *
                                          *
              Plaintiffs/Appellants,      *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
Wal-Mart Stores, Inc.; Walgreen           *
Company,                                  *
                                          *
              Defendants,                 *
                                          *
General Electric Company; Frank           *
Fletcher Companies, LTD, doing            *
business as Cheyenne Home                 *
Furnishings and Cheyenne                  *
Industries, Inc.,                         *
                                          *
              Defendants/Appellees.       *
                                     ___________

                            Submitted: September 27, 2007
                               Filed: November 6, 2007
                                ___________

Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges.
                             ___________
RILEY, Circuit Judge.

       The district court1 granted the motions for summary judgment of General
Electric Co. (GE) and Frank Fletcher Cos., LTD, d/b/a Cheyenne Home Furnishings
and Cheyenne Industries, Inc. (Fletcher) (collectively, the defendants2) and dismissed
the claims of Depositors Insurance Co. (Depositors) and Brooke Miller (Miller)
(collectively, the plaintiffs) based on product liability, implied warranty of
merchantability, and negligence. We affirm.

I.     BACKGROUND
       Miller owned a home in Des Moines, Iowa, and purchased homeowners
insurance from Depositors. Miller bought an extension cord manufactured by GE and
a lamp manufactured by Fletcher. Miller placed the Fletcher lamp on an end table
near an upholstered chair, plugged the lamp into the GE extension cord, and plugged
the extension cord into an electrical outlet.

       On October 9, 2004, a fire occurred at the Miller residence. The fire damaged
the extension cord, lamp, end table, upholstered chair, and the house. The plaintiffs’
expert, Todd Hartzler, could neither locate the point of origin of the fire nor reach a
conclusion regarding the cause of the fire. Miller paid the $500 deductible on the
insurance policy, Depositors paid $88,503.36 in benefits, and Miller assigned her
subrogation interest to Depositors.

     The plaintiffs filed a complaint, alleging product liability, implied warranty of
merchantability, and negligence claims. The plaintiffs maintained either the GE


      1
        The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
      2
     The parties stipulated to the dismissal of Wal-Mart Stores, Inc. and Walgreen
Company.
                                         -2-
extension cord or the Fletcher lamp cord caused the fire. The defendants moved for
summary judgment on all the claims. The district court granted summary judgment
for the defendants. The plaintiffs appeal.

II.    DISCUSSION
       We review de novo a grant of summary judgment. Libel v. Adventure Lands
of Am., Inc., 482 F.3d 1028, 1033 (8th Cir. 2007). Federal Rule of Civil Procedure
56(c) provides summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” To be a genuine issue
of fact, the 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). To
be a material fact, the factual issue must potentially “affect the outcome of the suit
under the governing law.” Id. “Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, 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 Corp. v.
Catrett, 477 U.S. 317, 322 (1986).

      Because the federal courts have diversity jurisdiction over this case pursuant to
28 U.S.C. § 1332, we apply the law of the State of Iowa. See HOK Sport, Inc. v. FC
Des Moines, L.C., 495 F.3d 927, 934 (8th Cir. 2007).

        A.    Product Liability
        The plaintiffs asserted a manufacturing defect in either the GE extension cord
or Fletcher lamp cord caused the fire. In Wright v. Brooke Group, Ltd., 652 N.W.2d
159 (Iowa 2002), the Supreme Court of Iowa adopted the Product Restatement, which
provides a product “contains a manufacturing defect when the product departs from
its intended design even though all possible care was exercised in the preparation and

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marketing of the product.” Id. at 178; Restatement (Third) of Torts: Product Liability
§ 2(a) (1998). “[A] manufacturing defect is a departure from a product unit’s design
specifications.” Id. § 2 cmt. c; see also Parish v. Icon Health & Fitness, Inc., 719
N.W.2d 540, 545 (Iowa 2006) (noting, in adopting the Product Restatement, the
Supreme Court of Iowa also adopted the associated commentary). A departure from
the intended design of a product cannot be determined without knowing the actual
intended design of the product. Thus, under Iowa law, an essential element of any
manufacturing defect claim is the intended design of the product. See Wright, 652
N.W.2d at 178-79 (citing “[a] manufacturing defect exists only where an item is
substandard when compared to other identical units off of the assembly line” (quoting
In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050,
1054 n.4 (8th Cir. 1996))). Here, the plaintiffs never offered any evidence showing
(1) the intended design of either the extension or lamp cords or (2) how the
manufacturing of these cords departed from the intended product designs. Therefore,
the plaintiffs failed to make a showing sufficient to establish the existence of essential
elements of the manufacturing defect claims. The district court properly granted
summary judgment on the plaintiffs’ product liability claims.

      B.    Implied Warranty of Merchantability
      The plaintiffs also brought claims for breach of implied warranty of
merchantability, arguing the extension and lamp cords were not fit for the ordinary
purpose for which cords are used.3 Iowa Code section 554.2314 provides for an



      3
        The plaintiffs also argued the extension and lamp cords failed to conform to
the defendants’ promises, however, the plaintiffs never identified any promises made
by the defendants. See generally Iowa Code § 554.2314(2)(f) (providing the implied
warranty of merchantability guarantees goods “conform to the promises or
affirmations of fact made on the container or label if any”). “Mere allegations not
supported with specific facts are insufficient to establish a material issue of fact and
will not withstand a summary judgment motion.” Henthorn v. Capitol Commc’n, Inc.,
359 F.3d 1021, 1026 (8th Cir. 2004).
                                           -4-
implied warranty of merchantability.4          “[W]arranty liability under section
554.2314(2)(c) requires proof of a product defect as defined in Products Restatement
section 2.” Wright, 652 N.W.2d at 182; see also Restatement (Third) of Torts:
Product Liability § 2(a) cmt. n (stating a manufacturing defect claim and an implied
warranty of merchantability claim “rest on the same factual predicate” and thus “these
two claims are duplicative and may not be pursued together in the same case”).
Because the plaintiffs failed to make a showing sufficient to establish a manufacturing
defect in either the extension or lamp cords, the district court properly granted
summary judgment on the plaintiffs’ implied warranty of merchantability claims.

       C.    Negligence
       The plaintiffs asserted general negligence claims under the res ipsa loquitur
doctrine. Res ipsa loquitur is a rule of evidence and a type of circumstantial evidence,
which permits, but does not compel, an inference of negligence upon showing an
injury “would not have occurred absent some unspecified but impliedly negligent act.”
Sammons v. Smith, 353 N.W.2d 380, 385 (Iowa 1984); see also Brewster v. United
States, 542 N.W.2d 524, 528-29 (Iowa 1996) (en banc). “Under Iowa law, res ipsa
loquitur applies when ‘(1) the injury is caused by an instrumentality under the
exclusive control of the defendant, and (2) the occurrence is such as in the ordinary
course of things would not happen if reasonable care had been used.” Brewster, 542
N.W.2d at 529 (quoting Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682, 686
(Iowa 1993)).

      4
       Section 554.2314, in relevant part, provides:

      1. Unless excluded or modified (section 554.2316), a warranty that the
      goods shall be merchantable is implied in a contract for their sale if the
      seller is a merchant with respect to goods of that kind. . . .

      2. Goods to be merchantable must be at least such as . . .
            c. are fit for the ordinary purposes for which such goods are
            used.
                                          -5-
        Res ipsa loquitur depends upon the “defendant’s complete and exclusive control
of the instrumentalities that cause the injury.” Oak Leaf Country Club, Inc. v. Wilson,
257 N.W.2d 739, 744 (Iowa 1977) (quoting Eaves v. City of Ottumwa, 38 N.W.2d
761, 769 (Iowa 1949)). To satisfy the exclusive control requirement, “[t]he injury
must either be traced to a specific instrumentality or cause for which the defendant
was responsible, or it must be shown that the [defendant] was responsible for all
reasonably probable causes to which the accident could be attributed.” Graber v. City
of Ankeny, Iowa, 616 N.W.2d 633, 643 (Iowa 2000) (en banc) (quoting W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 39, at 248 (5th ed. 1984)).
The exclusive control must have occurred at the time of the negligent act.
Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 832 (Iowa 2000) (en banc).
The purpose of the exclusive control requirement is “‘to link the defendant with the
probability, already established, that the accident was negligently caused.’” Brewster,
542 N.W.2d at 528 (quoting Prosser and Keeton on the Law of Torts § 39, at 248).
“Failure to connect the defendant with the negligent event defeats the application of
res ipsa loquitur.” Id. at 528-29.

       “If it appears that two or more instrumentalities, only one of which was under
defendant’s control, contributed to or may have contributed to the injury, the [res ipsa
loquitur] doctrine cannot be invoked.”5 Humphrey v. Happy, 169 N.W.2d 565, 569


      5
       In support of this proposition, the district court cited to Highland Golf Club of
Iowa Falls, Iowa v. Sinclair Refining Co., 59 F. Supp. 911, 917-18 (N.D. Iowa 1945),
superseded on other grounds by statute Iowa Code ch. 668, as recognized in McGuire
v. Davidson Mfg. Corp., 258 F. Supp. 2d 945, 953 (N.D. Iowa 2003). The plaintiffs
argue the district court erred by citing to a superseded case.

      In Highland Golf Club of Iowa Falls, 59 F. Supp. at 912-13, a golf club brought
a general negligence claim under the res ipsa loquitur doctrine against a gasoline
vendor. A fire occurred in the golf club’s garage while the gasoline vendor was
delivering gasoline. The district court entered a directed verdict for the gasoline
                                          -6-
(Iowa 1969) (quoting with approval 38 Am. Jur. Negligence § 300 (1941)). “‘Unless
there is vicarious liability or shared control, the logical rule usually is applied, that the
plaintiff does not make out a preponderant case against either of two defendants by
showing merely that [the plaintiff] has been injured by the negligence of one or the
other.’” Novak Heating & Air Conditioning v. Carrier Corp., 622 N.W.2d 495, 498
(Iowa 2001) (en banc) (quoting Town of Reasnor v. Pyland Constr. Co., 229 N.W.2d
269, 272 (Iowa 1975)); see also Pastour v. Kolb Hartware, Inc., 173 N.W.2d 116, 126
(Iowa 1969) (holding if multiple instruments controlled by different defendants caused
the injury, res ipsa loquitur can only apply if the defendants “have been properly
charged as joint tortfeasors or have been in joint control of the instrumentality or
agency causing the injury, or where one was vicariously liable for the other’s



vendor because “the situation lack[ed] the element of exclusive control of the
instrumentalities which is necessary to give rise to the doctrine of res ipsa loquitur.”
Id. at 918. The district court never concluded the golf club was negligent. Id. at 919
(recognizing “fires are frequent occurrences and in a great many cases without any
negligence on the part of anyone”).

       In the discussion of the applicable law, the district court noted “[w]here the rule
of res ipsa loquitur is applicable, this does not change the rule that the plaintiff must
plead and prove his freedom from contributory negligence.” Id. at 914. Before Iowa
adopted the principles of comparative fault, “the doctrine of contributory negligence
prohibited any party who caused the injury from recovering.” Jeffrey A. Stone, The
Law of Contribution and Tort-Based Indemnity in Iowa, 55 Drake L. Rev. 113,
116-17 (2006). The enactment of the Iowa Comparative Fault Act abolished the
defense of contributory negligence, relieving the plaintiff from the obligation of
pleading and proving freedom from contributory negligence. See Iowa Code ch. 668.

       Insofar as Highland Golf Club of Iowa Falls was decided based on the golf
club’s contributory negligence, the Iowa Comparative Fault Act superseded the
decision; however, the district court also decided Highland Golf Club of Iowa Falls
based on the gasoline vendor’s lack of exclusive control over the instrumentalities
causing the injury. The enactment of the Iowa Comparative Fault Act has not affected
this interpretation of the case.
                                            -7-
negligence” (quoting E. H. Schopler, Applicability of res ipsa loquitur in case of
multiple defendants, 38 A.L.R.2d 905, 906 (1954))).

       Here, the plaintiffs identify two instruments—the GE extension cord and the
Fletcher lamp cord—that potentially could have caused the fire. The plaintiffs never
specifically identify the instrument that caused the fire; rather, the plaintiffs proceed
on the assumption that identifying two instruments that potentially could have caused
the fire is a sufficient basis upon which to apply the res ipsa loquitur doctrine. The
plaintiffs, however, are incorrect. We hold the plaintiffs’ alternative theories of the
instrument that caused the fire precludes the application of the res ipsa loquitur
doctrine. Again, “the plaintiff does not make out a preponderant case against either
of two defendants by showing merely that [the plaintiff] has been injured by the
negligence of one or the other.” Novak Heating & Air Conditioning, 622 N.W.2d at
498 (quoting Town of Reasnor, 229 N.W.2d at 272).

       Additionally, the plaintiffs never argued Fletcher and GE are vicariously liable
or joint tortfeasors. Finally, GE’s control over the extension cord and Fletcher’s
control over the lamp are independent acts of control over separate and distinct
instruments. Cf. Town of Reasnor, 229 N.W.2d at 272 (holding two construction
contractors had not shared control when one contractor completed its work before the
other contractor began its work). Here, the plaintiffs alleged the defendants
negligently manufactured the cords. Neither GE nor Fletcher shared control over the
other’s manufacturing operation. The district court properly granted summary
judgment on the plaintiffs’ general negligence claims.

III.   CONCLUSION
       We affirm the judgment of the district court.
                       ______________________________




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