                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    May 27, 2014
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court

 THOMAS PLUSTWIK, an individual,

              Plaintiff - Appellant,

 v.                                                     No. 13-4089
                                                (D.C. No. 2:11-CV-00757-DS)
 VOSS OF NORWAY ASA, a New                                (D. Utah)
 York corporation,

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This case is therefore ordered submitted without oral argument.

      Plaintiff Thomas Plustwik initiated the present suit in Utah state court

against Defendant VOSS of Norway following an injury, which Plaintiff alleged



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
he received from a bottle of Voss brand sparkling water which apparently

exploded upon being bumped by another bottle when the box containing both

bottles was jostled. The injury occurred while Plaintiff was stocking Voss bottled

water into a refrigerator near the bar seating area of a Salt Lake City restaurant

where Plaintiff was an employee.

      Plaintiff filed a complaint in Utah State court alleging five causes of action:

(1) strict product liability, (2) negligence, (3) breach of express warranties, (4)

breach of implied warranty of merchantability, and (5) breach of implied warranty

of fitness for a particular purpose. The suit was subsequently removed to the

United States District Court for the District of Utah on diversity grounds. Once

in federal court, Defendant filed a motion for summary judgment. The district

court concluded that Plaintiff failed to submit admissible evidence to support

necessary elements of all of his claims. Therefore, the district court entered

summary judgment in favor of Defendant.

      Plaintiff now appeals that judgment. Having carefully considered the

record and briefs on appeal, we find no error in the district court’s ultimate

decision to grant Defendant’s motion for summary judgment. Plaintiff failed to

submit admissible evidence to support necessary elements of his strict product

liability claim. Under Utah law, a plaintiff in a strict product liability case must

show: “(1) that the product was unreasonably dangerous due to a defect or

defective condition, (2) that the defect existed at the time the product was sold,

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and (3) that the defective condition was a cause of the plaintiff’s injuries.”

Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1279 (10th Cir. 2003) (quoting

Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418 (Utah Ct. App.) (internal

quotation marks omitted)); see also Utah Code Ann. § 78B-6-703. “Accordingly,

it is not enough to simply show that the product failed.” Burns, 876 P.2d at 418.

The record shows that Plaintiff proffered no admissible evidence to the district

court which could support allegations of any defect recognized by Utah law as

giving rise to product liability in Defendant’s product. Riggs v. Asbestos Corp.

Ltd., 304 P.3d 61, 68 (Utah Ct. App. 2013) (“Utah law recognizes three types of

product defects: design defects, manufacturing flaws, and inadequate warnings

regarding use.”) (internal quotation marks omitted); see also Wankier v. Crown

Equip. Corp., 353 F.3d 862, 867 (10th Cir. 2003) (discussing factors germane to

determining the existence of the three types of defect which can support a

products liability claim under Utah law). Furthermore, Plaintiff put forth no

evidence that could show any of the defects he alleged in his complaint existed at

the time the product was sold. In the absence of evidence establishing any defect,

Plaintiff’s case relies entirely on the fact that Defendant’s product failed, which,

as mentioned above, “is not enough” to support a strict products liability claim.

Burns, 876 P.2d at 418. Since Plaintiff failed to submit any admissible evidence

to support necessary elements of strict product liability, his strict product liability

claim cannot survive summary judgment.

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         This failure to submit any admissible evidence of a defect in Defendant’s

product necessarily causes Plaintiff’s negligence claim to fail, since a negligence

claim stemming from product liability, such as Plaintiff’s, still requires at least

some evidence of defect. Bishop v. GenTec Inc., 48 P.3d 218, 225-26 (Utah

2002).

         Finally, there is no evidence in the record that Defendant created or

breached any warranties under the theories Plaintiff asserts in his three remaining

claims. See Utah Code Ann. § 70A-2-313 (stating elements of express

warranties); § 70A-2-314 (stating elements of warranties of merchantability); §

70A-2-315 (stating elements of implied warranties of fitness).

         For the foregoing reasons, we AFFIRM the district court’s decision

granting Defendant’s motion for summary judgment. Plaintiff’s motion for leave

to proceed in forma pauperis is GRANTED.



                                                 Entered for the Court




                                                 Monroe G. McKay
                                                 Circuit Judge




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