             IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2007-IA-01171-SCT

WATSON QUALITY FORD, INC.

v.

CARLOS CASANOVA AND SHIRLEY CASANOVA

DATE OF JUDGMENT:             06/21/2007
TRIAL JUDGE:                  HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:    HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:      BARRY DOUGLAS HASSELL
                              MICHAEL WAYNE BAXTER
ATTORNEY FOR APPELLEE:        CARROLL RHODES
NATURE OF THE CASE:           CIVIL - OTHER
DISPOSITION:                  REVERSED AND RENDERED - 12/04/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
                     CONSOLIDATED WITH

                      NO. 2007-IA-01172-SCT

FORD MOTOR COMPANY

v.

CARLOS CASANOVA AND SHIRLEY CASANOVA

DATE OF JUDGMENT:             06/21/2007
TRIAL JUDGE:                  TOMMIE T. GREEN
COURT FROM WHICH APPEALED:    HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:      WALKER W. JONES, III
                              BARRY W. FORD
                              BRADLEY W. SMITH
                              EVERETT E. WHITE
ATTORNEY FOR APPELLEE:        CARROLL RHODES
NATURE OF THE CASE:           CIVIL - OTHER
DISPOSITION:                  REVERSED AND RENDERED - 12/04/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
       BEFORE SMITH, C.J., DICKINSON AND LAMAR, JJ.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    In this auto-accident case, the plaintiff alleges breach of both the implied warranty of

merchantability and the implied warranty of fitness for a particular purpose of a Ford van.

The question presented is whether the plaintiff has demonstrated a triable issue of material

fact, as to whether the alleged breaches of warranty were a proximate cause of the accident.

Because we find no such triable issue in the record, we reverse the trial court’s denial of

summary judgment.

                     BACKGROUND FACTS AND PROCEEDINGS

¶2.    On January 7, 2000, Carlos Casanova’s employer, Resilient Flooring, purchased a

new Ford Econoline E-250 van from Watson Quality Ford for use in its flooring business.

Casanova alleges that, when he drove the van off the lot, the van pulled to the right.

Casanova was involved in two separate wrecks while driving the van on January 20, 2000.

After the wrecks occurred – and without having any repairs performed on the van– Casanova

continued to drive the van to job sites both in and out of Mississippi. By May 2000,

Casanova put between 11,000 and 12,000 miles on the van.

¶3.    Casanova testified that he took the van back to Watson Quality several times between

January and April with complaints of continuous pulling. Casanova also testified that when

he took the van to Watson Quality on May 9, he was told not to drive the van, and to leave

it for diagnosis. But he stated he did not do so because, his boss, Jack DeMoney, told him

to return to work.

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¶4.    On May 11, Casanova traveled to Vicksburg for a job. While driving the van down

a hill at about ten miles per hour, he collided with a car coming up the hill at about twenty-to-

thirty miles per hour. Casanova stated that as he tried to turn the steering wheel to the left,

it was hard to turn, and he heard a loud pop, after which he could no longer steer the van.

The left front of the van hit the left front of the car, bounced off, and hit again. The van was

taken back to Watson Quality for a damage assessment. Ridgeland Body Shop repaired the

body of the van and replaced some damaged steering components, which were either

destroyed or recycled before either party could view them.

¶5.    Casanova and his wife Shirley filed suit against Ford and Watson Quality on May 6,

2003, alleging that the accident was caused by one or more “malfunctioning” steering

components in the van, and that Watson Quality had negligently failed to repair the

malfunctioning components.        The original complaint alleged six counts against the

defendants: negligence, gross negligence, strict liability (manufacture and design), strict

liability (failure to warn), breach of implied warranty of merchantability, and breach of

implied warranty of fitness for a particular purpose. On September 15, 2006, the parties

entered a Stipulation of Dismissal, dismissing the gross-negligence and strict-liability claims

against both parties. The plaintiffs also dismissed their negligence claim against Ford, but

maintained their negligence claim as to Watson Quality.

¶6.    Ford and Watson filed motions for summary judgment, which the trial judge denied

without opinion. We granted interlocutory appeal.




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                                STANDARD OF REVIEW

¶7.    This Court reviews the grant or denial of summary judgment de novo. Estate of

Johnson v. Chatelain, 943 So. 2d 684, 686 (Miss. 2006) (citation omitted). The evidence

must be viewed in the light most favorable to the non-moving party. Id. The burden of

demonstrating that there is no genuine issue of material fact falls upon the party requesting

the summary judgment. Id. (citation omitted).

       When a motion for summary judgment is made and supported as provided in
       Rule 56, an adverse party may not rest upon the mere allegations or denials of
       his pleadings; his response must set forth specific facts showing there is a
       genuine issue for trial. If he does not so respond, summary judgment, if
       appropriate, shall be entered against him.

Id. at 687 (citation omitted). “Pursuant to Mississippi Rule of Procedure 56, summary

judgment is appropriate when the non-moving party has failed to ‘make a showing sufficient

to establish the existence of an element essential to the party’s case, and on which that party

will bear the burden of proof at trial.’” Bullard v. Guardian Life Ins. Co., 941 So. 2d 812,

814 (Miss. 2006).

                                        ANALYSIS

I. Mississippi Products Liability Act

¶8.    Defendants argue that Casanova’s exclusive remedy is to bring an action under the

Mississippi Products Liability Act (“MPLA”).          We disagree.     We find no statutory

requirement that makes the MPLA the exclusive remedy for claims of malfunctioning

automobiles. Moreover, this Court previously has held that breach of implied warranty



                                              4
claims are not barred by the MPLA. Bennett v. Madakasira, 821 So. 2d 794, 808 (Miss.

2002).

II. Implied Warranty of Merchantability

¶9.      The implied warranty of merchantability provides that, “[w]hen a sale of goods is

made, there is an implied warranty that the goods are merchantable if the seller is a ‘merchant

with respect to goods of that kind.” Vince v. Broome, 443 So. 2d 23, 26 (Miss. 1983) (citing

Miss. Code Ann. § 75-2-314).1 This Court has stated:

         There are five elements which a plaintiff must prove to recover under section
         75-2-314: (1) That a “merchant” sold “goods,” and he was a merchant with
         respect to “goods of the kind” involved in the transaction, (2) which were not
         merchantable at the time of the sale, and (3) injuries and damages to the



         1
             Mississippi Code Annotated Section 75-2-314(1)-(3) (Rev. 2002) states:

         (1) Except as provided in subsection (5), 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. Under this section the serving for value of food or
         drink to be consumed either on the premises or elsewhere is a sale.

         (2) Goods to be merchantable must be at least such as:
                (a)     Pass without objection in the trade under the contract
                        description; and
                (b)     In the case of fungible goods, are of fair average quality
                        within the description; and
                (c)     Are fit for the ordinary purposes for which such goods are
                        used; and
                (d)     Run, within the variations permitted by the agreement, of
                        even kind, quality and quantity within each unit and among
                        all units involved; and
                (e)     Are adequately contained; packaged and labeled as the
                        agreement may require; and
                (f)     Conform to the promises or affirmations of fact made on the
                        container or label if any.
         (3) Other implied warranties may arise from course of dealing or usage of trade.

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       plaintiff or his property, (4) caused proximately and in fact by the defective
       nature of the goods, and (5) notice to the seller of the injury.

Id. (internal citation omitted) (emphasis added). See also Crocker v. Sears, 346 So. 2d 921,

924 (Miss. 1977) (“[T]his Court has not hesitated to reverse awards in favor of buyers in

warranty cases where there was no evidence connecting the damage to the defect.”). Privity

of contract is not required. Miss. Code Ann. § 11-7-20 (Rev. 2004).

¶10.   Even though we must (for summary-judgment purposes) view as true Casanova’s

assertion that the van was unmerchantable because it pulled the right from the first day, he

must nevertheless offer evidence that the wreck was caused by the alleged defect.

Casanova’s expert, Rev. Victor Dixon, could not point to the cause of the wreck,2 and

Casanova offered no other proof of causation. Casanova testified that he heard a “pop” and

the steering ceased to work. There is not one scintilla of evidence as to what caused the

“pop” or the loss of control. Thus, because Casanova has failed to offer any evidence to

support one of the essential elements of his claim, no triable fact exists, and summary

judgment should have been granted. Even accepting as true all of Casanova’s assertions of

“pulling” problems and trips to Watson for repairs, no evidence exists that the wreck was

caused by the alleged “pulling” problem. Because no legal connection exists between the

“pulling” problem and the wreck, Casanova’s claim for breach of the implied warranty of

merchantability fails.



       2
        Rev. Dixon admitted that he never examined the allegedly defective parts from the van after
the accident, nor did he conduct any tests, etc., on the parts.

                                                6
¶11.   Moreover, assuming that Casanova had successfully proven that the “pulling”

problem caused the wreck, he still would have no right of recovery, as he failed to offer the

defendants a chance to cure the defect. This Court has held: “[T]hough there may have been

a breach of the Warranty of merchantability, the seller has a right to attempt cure.” Fitzner

Pontiac-Buick-Cadillac, Inc., v. Smith, 523 So. 2d 324, 328 (Miss. 1988). An opportunity

for the seller to cure is a “reasonable requisite” of a buyer’s “right of recovery.” 3

III. Implied Warranty of Fitness for a Particular Purpose

¶12.   In Garner v. S&S Livestock Dealers, Inc., 248 So. 2d 783, 785 (Miss. 1971), this

Court explained:

        In order for the plaintiff to recover under the implied warranty of fitness for
       a particular purpose, the evidence must be sufficient for the jury to find (1) the
       seller at the time of the contracting had reason to know the particular purpose
       for which the goods were required; (2) the reliance by the plaintiff as buyer
       upon the skill or judgment of the seller to select suitable goods, and (3) the
       goods were unfit for the particular purpose.




       3
        As this Court stated in Fitzner Pontiac-Buick-Cadillac, Inc., v. Smith, 523 So. 2d 324, 328
n.1 (Miss. 1988):

       We recognize that a strict reading of the cure provision of Miss. Code Ann.§ 75-2-
       508 (1972) reveals no explicit application to the revocation situation with which we
       are here concerned . . . The law’s policy of minimization of economic waste strongly
       supports recognition of a reasonable opportunity for cure. Though the express
       language of Section 75-2-508 does not apply here, cure is not excluded by Section
       75-2-608. By analogy to Section 75-2-508 and in furtherance of the policy
       justification undergirding that statute and our common law doctrine of cure in
       contacts generally, we recognize that, before [the plaintiff] was entitled to get his
       money back, [the seller] had a right to a reasonable opportunity to cure the vehicle’s
       deficiencies.

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¶13.   Furthermore, this Court has held that no claim for breach of the implied warranty of

fitness for a particular purpose will lie when a product is to be used for its ordinary purpose.

Ford Motor Co. v. Fairley, 398 So. 2d 216, 219 (Miss. 1981) (“Neither was there any breach

of an implied warranty of fitness for a particular purpose since the automobile was purchased

for a very ordinary purpose.”). Here, Casanova offered no evidence that the van was

purchased for anything other than the ordinary purposes for which a van would be used.

Thus Casanova’s second warranty claim fails.

IV. Negligence of Watson Quality

¶14.   It is elementary that “[t]the elements of proof required to support a claim for damages

for negligence are a duty, a breach of that duty, damages, and proximate cause.” Rolison v.

City of Meridian, 691 So. 2d 440, 444 (Miss. 1997) (citations omitted). Casanova’s claim

of negligence fails not because he failed to offer proof of negligence, but rather because he

presented no evidence of causation. Even assuming, as we must for summary-judgment

purposes, that Casanova took the van to Watson Quality several times for repairs and that

Watson regularly failed to make repairs, he nevertheless has failed to connect in any way that

alleged negligence to the wreck. His testimony of a “pop” and a resulting inability to steer

is unconnected by any evidence to Watson’s alleged negligent repair. Casanova’s claim for

negligence against Watson fails.




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                                       CONCLUSION

¶15.   For the reasons stated, we reverse the trial court’s ruling and enter judgment for

the defendants.

¶16.   REVERSED AND RENDERED.

     SMITH, C.J., WALLER, P.J., CARLSON AND LAMAR, JJ., CONCUR.
RANDOLPH, J., CONCURS IN PART. DIAZ, P.J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY
EASLEY AND GRAVES; RANDOLPH, J., JOINS IN PART.


     DIAZ, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING
IN PART:

¶17.   Although I agree with Part III of the Court’s opinion regarding the alleged breach of

the implied warranty of fitness for a particular purpose, Maj. Op. at ¶ ¶11-12, I disagree with

Parts II and IV because the majority fundamentally misunderstands the minuscule standard

of proof necessary to withstand a motion for summary judgment.

¶18.   “The summary judgment motion is the only pretrial motion which allows the Court

to ‘go behind the pleadings’ and consider evidence such as admissions, answers to

interrogatories, depositions, and affidavits.” Henderson v. Un-Named Emergency Room,

758 So. 2d 422, 424 (Miss. 2000) (quoting Lattimore v. City of Laurel, 735 So. 2d 400, 402

(Miss. 1999)). Although the motion is routine, its grant should be exceedingly uncommon,

as it is appropriate only when examination of the evidence indicates that “there is no genuine

issue of material fact” for a jury to consider. Id.




                                               9
¶19.   This rule presents perhaps the most commonly bandied-about phrase in all of appellate

jurisprudence, and perhaps this common repetitiveness is what leads today’s majority astray.

But this maxim means precisely what it says – that summary judgment is appropriate only

when the record is entirely, utterly, and completely devoid of evidence on a material issue.

If even a shred of evidence – viewed in the light most favorable to the nonmoving party,

Parker v. Harrison County Bd. of Supervisors, 987 So. 2d 435, 437 (Miss. 2008) – exists

that might lead a jury to conclude that an allegation is more likely true than false, then

summary judgment is inappropriate, and the case is rightly left to determination by a jury.

Summary judgment is not a tool by which courts distinguish between strong cases and weak

cases; it discriminates only against cases that present absolutely no plausible basis in

evidence.

¶20.   Casanova’s evidence, viewed in the most favorable light, clearly presents issues of

material fact for his claims of a breached implied warranty of merchantability and negligence

against Watson Quality Ford. After Casanova’s crash on May 11, 2000, an insurance adjuster

for Casanova’s employer determined that the left-front pitman arm, a critical component of

the steering mechanism, was broken. Casanova’s expert witness testified at deposition that

the odds that the pitman arm broke in the crash were “one in a million,” and that in twenty

years of experience, he had never seen a crash such as this result in a broken pitman arm.

This malfunction is precisely the sort of problem that would lead to the loss of steering

control that Casanova described. Plainly, the majority’s contention that Casanova failed to




                                             10
show a causal link between the van’s defect and his accident either fails to consider or fails

to understand this evidence.

¶21.   Likewise, the majority unduly diminishes evidence showing that Casanova gave

Watson Quality Ford an opportunity to cure the van’s defect. The majority correctly notes

that a seller, notwithstanding a breached warranty of merchantability, must be given a chance

to right its wrongs. Maj. Op. at ¶13. But Casanova put forth evidence showing that he took

the van back to Watson Quality Ford for repairs for three days in April 2000. Whether this

constituted a reasonable effort on Casanova’s part is a clear question of fact, supported by

evidence sufficient to withstanding summary judgment, to be determined by a jury. See

Mercury Marine v. Clear River Constr. Co., 839 So. 2d 508, 522 (Miss. 2003) (“The period

of time which constitutes a ‘reasonable’ opportunity [to cure defects] . . . is nowhere defined

as a matter of law, because it is an issue of fact.”).

¶22.   Today’s decision also misapplies our summary judgment standard to Casanova’s

claim of negligence against Watson Quality Ford. The majority’s insistence that Casanova

failed to demonstrate causation between Watson Quality’s failure to repair and the crash is

wholly unsupported by the record. Casanova clearly presented evidence sufficient to show

that the van’s steering mechanism malfunctioned from the very first time he drove it; that

Watson Quality failed to repair the malfunction; and that the malfunction (namely, the pitman

arm that ultimately broke) led to his crash on May 11, 2000.

¶23.   Plainly, the majority is unconvinced by the evidence presented in this case, but that

is not the question before us. On a motion for summary judgment, we do not look at the

                                               11
nonmoving party’s cards to determine whether he has a good hand. We determine only

whether he holds enough cards to play the game. Today’s decision misses that elementary

point, dealing to the plaintiffs of this state what can be described only as a rotten hand.

¶24.   The circuit court’s denial of summary judgment for Watson Quality Ford should be

affirmed, and this case should be remanded for trial. Because it is not, I dissent in part.

     EASLEY AND GRAVES, JJ., JOIN THIS OPINION. RANDOLPH, J., JOINS
THIS OPINION IN PART.




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