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                ARKANSAS COURT OF APPEALS

                                      DIVISION III
                                      No. CV-15-63

                                                Opinion Delivered   JANUARY 27, 2016

 EILEEN MADDEN                                  APPEAL FROM THE JACKSON
                              APPELLANT         COUNTY CIRCUIT COURT
                                                [NO. CV-2007-88]
 V.
                                                HONORABLE HAROLD S.
 MERCEDES-BENZ USA, INC. ET AL.                 ERWIN, JUDGE
                     APPELLEES
                                                AFFIRMED

                            BRANDON J. HARRISON, JUDGE

       This appeal arises out of an automobile collision where appellant Eileen Madden was

ejected from her vehicle and sustained serious injuries. Madden sued the manufacturers and

sellers of her vehicle and its seatbelt in the Jackson County Circuit Court alleging that her

seatbelt was defective, that the defect caused her seatbelt to come unlatched during the

collision, and that this defect proximately caused her injuries. She appeals from orders

granting summary judgment to the manufacturers and sellers of her automobile and its

seatbelt. We affirm.

                                          I. Facts

       Madden and her now-deceased husband, Norman, bought a used 1998 Mercedes-

Benz ML320 automobile from Little Rock Wholesale in October 2004. The Bill of Sale

indicated that they bought the vehicle “as is.” Prior to the purchase, the vehicle’s seatbelt

buckle was the subject of a recall campaign.         The campaign was initiated after a
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determination that the seatbelt buckle tabs in these vehicles had potentially been improperly

staked during the manufacturing process, and the improper staking could cause the seatbelt

buckle to unlatch. Pursuant to the recall campaign, this vehicle was inspected by Scott Reid

in August 2003; he determined that the defect was not present. This is pertinent because

on 20 March 2007, while driving the vehicle, Madden had an automobile collision with

Christopher Taylor. Madden was ejected from the vehicle and was seriously injured.

Although Madden maintains that she habitually wore her seatbelt—and there is evidence

indicating that her injuries are consistent with seatbelt usage—the police report from the

collision indicated that she was not wearing a seatbelt.

       Madden spent many weeks receiving acute care for her injuries. During that time,

the vehicle was determined to be a total loss, and Norman transferred the title of the vehicle

to their insurance carrier on 17 April 2007. The insurance carrier then scrapped and sold

the vehicle. This sale occurred without an inspection of the vehicle or its seatbelt for

potential defects.

           Madden filed her initial complaint on 24 May 2007, suing only Christopher Taylor

for negligence. 1 Later, Madden amended her complaint to include additional defendants;

Mercedes-Benz US International, Inc., Mercedes-Benz USA, LLC, 2 TRW Vehicle Safety




       1
         Taylor was served, and he defaulted on the complaint. On 15 October 2014, a
default judgment was entered against him, and he is not a party in this appeal.
       2
         Mercedes-Benz US International, Inc. and Mercedes-Benz USA, LLC (collectively
referred to as Mercedes) manufactured, distributed, and/or sold Madden’s vehicle.


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Systems, Inc. 3, Little Rock Wholesale, Robert Vowell, and Sandra David 4. She pursued

causes of action for negligence, products liability, and breach of warranty against Mercedes,

TRW, and the LRW defendants alleging that her vehicle’s seatbelt was defective, the defect

caused her seatbelt to become unlatched during the collision, and the defect proximately

caused her injuries.

       On 15 October 2012, Mercedes and TRW filed a joint motion for summary

judgment seeking the dismissal of all of Madden’s claims against them. Mercedes and TRW

generally argued that the presence of a defect was a necessary element of each of her claims

and that she failed to offer evidence of a defect in the seatbelt attributable to either of them.

The circuit court granted Mercedes and TRW’s joint motion for summary judgment on 24

June 2014. On 21 July 2014, Madden filed a motion for clarification of this order. In her

motion, she asked whether the court intended to grant summary judgment to Mercedes and

TRW on the breach of warranty claims. The court answered that its original order granted

summary judgment to Mercedes and TRW on all claims, including the breach-of-warranty

claims, in an order dated 15 October 2014.

       The LRW defendants moved for summary judgment on 30 June 2014. They

adopted by reference the motion for summary judgment filed by Mercedes and TRW and

all exhibits attached to it. Like Mercedes and TRW, they argued that Madden could not


       3
       TRW Safety Vehicle Safety Systems, Inc. (TRW) supplied the seatbelt for
Madden’s vehicle.
       4
        Little Rock Wholesale, Robert Vowell, and Sandra David (collectively referred to
as the LRW defendants) were sued because of their role in selling the vehicle to Madden
and her husband.

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prove a defect in the vehicle attributable to them. Additionally, LRW defendant Robert

Vowell asserted that he was not a proper defendant in this action because he neither bought

nor sold the vehicle. This motion was granted in its entirety in an order entered on 16

October 2014. Madden’s timely appeal of the orders granting summary judgment to

Mercedes, TRW, and the LRW defendants on all claims followed.

                                          II. Standard of Review

       On appeal, we determine if summary judgment was appropriate based on whether

the evidentiary items presented by the moving party in support of the motion leave a

material question of fact unanswered. The burden of sustaining a motion for summary

judgment is always the responsibility of the moving party. New Maumelle Harbor v. Rochelle,

338 Ark. 43, 991 S.W.2d 552 (1999). Once the moving party has established prima facie

entitlement to summary judgment by affidavits, depositions, or other supporting documents,

the opposing party must meet proof with proof and demonstrate the existence of a material

issue of fact. Id. The court views the evidence in the light most favorable to the party against

whom the motion was filed, resolving all doubts and inferences against the moving party.

Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001). A court may grant summary judgment

only when it is clear that there are no genuine issues of material fact to be litigated and that

the party is entitled to judgment as a matter of law. Mitchell v. Lincoln, 366 Ark. 592, 237

S.W.3d 455 (2006).

                         III. Summary Judgment in Favor of Mercedes and TRW

       Madden challenges the circuit court’s order granting summary judgment in favor of

Mercedes and TRW arguing that (1) she submitted proof that Mercedes and TRW supplied


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the seatbelt in a defective condition, and (2) the circuit court improperly granted summary

judgment on her breach of warranty claims.

                                A. The Products-Liability Claim

       To prevail in a products liability case against a supplier, a plaintiff bears the burden

of proving both (1) that the product was defective when it left the defendant’s control such

that it was unreasonably dangerous and (2) that the defect caused the injury. Ark. Code

Ann. § 4-86-102 (Repl. 2011); Higgins v. Gen. Motors Corp., 287 Ark. 390, 699 S.W.2d 741

(1985). For our purposes, the key question is whether the seatbelt was defective when it

left the control of Mercedes and TRW.

       The facts of this case make it difficult to establish a factual dispute on the presence of

a defect. The vehicle and its seatbelt are no longer available, and they were never inspected

by an expert for any party. In the absence of direct proof that the product is defective

because of a manufacturing flaw, Arkansas law requires that Madden offer “substantial

evidence” that “negates other possible causes of failure of the product not attributable to the

defendant.” Higgins, supra. “Substantial evidence is that which is of sufficient force and

character that it will compel a conclusion one way or another. It must force or induce the

mind to pass beyond suspicion and conjecture.” Id. Madden is not required to eliminate

all other possibilities—and she need not prove her case beyond a reasonable doubt—but she

must present evidence from which a jury can conclude that it is more probable than not

that this occurred. Id.

       The burden of sustaining a motion for summary judgment always rests with the

moving party. New Maumelle Harbor, supra. Mercedes and TRW established a prima facie


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entitlement to summary judgment by attaching to their motion the police report from the

collision indicating that Madden was not wearing her seatbelt, information indicating that

the vehicle was no longer available for inspection, and records from Scott Reid’s 2003

inspection of the vehicle showing that a defect in the seatbelt was not found. Most notably,

Mercedes and TRW also relied on Madden’s own expert’s testimony to negate the presence

of a defect attributable to them. Specifically, Madden’s expert, Gerald Barnett, testified that

he would have to be “a psychic” to determine whether a seatbelt-latch problem existed

when the vehicle was new or whether it was introduced later. Because Mercedes and

TRW’s joint motion for summary judgment established a prima facie entitlement to

summary judgment, the burden shifted to Madden to present some evidence of a defect

attributable to Mercedes and TRW.

       To begin, Madden clearly calls into question whether she was wearing her seatbelt

during the collision. She testified that it was her habit to wear it, and Dr. Frank Peretti,

testifying in his role as the associate medical examiner at the Arkansas State Crime

Laboratory, stated that her injuries were consistent with seatbelt usage. Nevertheless,

evidence that Madden’s seatbelt came unlatched during the collision does not, in and of

itself, equate to evidence of a defect when the seatbelt was manufactured or supplied.

       In an attempt to question the functionality of her seatbelt, Madden highlights the

recall campaign for defective seatbelts that included her vehicle.        The recall itself is

insufficient evidence of a defect in the seatbelt. Scott Reid performed the recall inspection

on the vehicle and found no defect present. He testified that he performed the inspection

properly. Madden points out the short amount of time Reid dedicated to the inspection,


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but she offers no evidence that his inspection was inadequate or improper. Gerald Barnett

even testified that he had the opinion that Reid performed the buckle inspection properly.

       The other evidence Madden relied on to refute Mercedes and TRW’s motion for

summary judgment primarily comes from her expert witness, Gerald Barnett. Barnett said

through deposition testimony that he thought her seatbelt became unlatched during the

collision and that a defect present at manufacturing can appear long after a seatbelt leaves a

supplier’s control. He attempted to negate the possibility that some action by Madden or

another third party could have caused the seatbelt to unlatch when he testified that a foreign

object or spill would have caused the seatbelt to not latch at all, but he later testified that a

foreign object or spilled drink could cause a seatbelt to merely latch improperly. And, he

testified that he could not answer whether the defective condition in the seatbelt buckle

existed when the car came off the factory floor; he even stated that he’d have to be “a

psychic” to know whether the defect was present at this time. Barnett also said he would

need to examine the seatbelt to do more than speculate as to the cause of the belt unlatching.

       In a motion for summary judgment, once the moving party establishes prima facie

entitlement to summary judgment, the opposing party must meet proof with proof and

demonstrate the existence of a material fact. New Maumelle Harbor, supra. Here, Madden

failed to place a material fact on an element of her claim in dispute. Even if she had worn

her seatbelt during the collision and the seatbelt unlatched because of a defect, she cannot

establish that this defect was present when it left Mercedes and TRW’s control. The

evidence she presented would require a jury to speculate regarding the cause of the alleged




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defect. Therefore, we affirm the circuit court’s dismissal of Madden’s products liability

claims against Mercedes and TRW.

                              B. The Breach-of-Warranty Claims

       Madden also argues that the breach of warranty claims were not properly raised by

Mercedes and TRW in their motion for summary judgment nor were they properly decided

by the court. She contends that their motion for summary judgment does not specifically

address the viability of her breach-of-warranty claims.

       We disagree. Here, Mercedes and TRW sought summary judgment on all claims

by arguing that Madden failed to present any evidence of a defect when the vehicle was

manufactured. The existence of a defect is a common and necessary element for all of the

claims, and without this evidence, Madden’s case against Mercedes and TRW fails.

Moreover, Madden’s motion for clarification gave the circuit court the opportunity to

consider whether summary judgment on the breach-of-warranty claims was proper; and it

entered an order expressly granting judgment to Mercedes and TRW on her complaint as

a whole. We hold that the viability of Madden’s breach-of-warranty claims was properly

considered and ruled on by the circuit court.

       With that determination made, we turn to whether summary judgment on the

breach-of-warranty claims was appropriate. Here, Madden argues that the burden for

proving products liability is greater than that of breach of warranty. However, breach of

warranty and strict products liability claims are “essentially the same” insofar as both require

a product defect attributable to the defendant.       Higgins, supra.   Mercedes and TRW

consistently argue that summary judgment is appropriate because Madden failed to present


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evidence of a defect, and the presence of a defect is a common element essential to both

claims. We agree. A court is not required to address or negate every element of a claim.

Golden Tee, Inc. v. Venture Golf Schs., Inc., 333 Ark. 253, 969 S.W.2d 625 (1998). Mercedes

and TRW offered argument and evidence to the circuit court on whether there was a defect,

and a determination that there is no evidence of a defect is sufficient to resolve the outcome

of each of the claims presented. We hold that the court did not err when it disposed of the

breach-of-warranty claims against Mercedes and TRW.

                        IV. Summary Judgment in Favor of the LRW Defendants

       Madden also raises several challenges to the court’s order granting summary judgment

to the LRW defendants. First, she contends that the court erred in granting summary

judgment on her products liability claim against the LRW defendants because she submitted

proof that the LRW defendants supplied the seatbelt in a defective condition. She also

contends that the circuit court erred in granting summary judgment on her breach of

warranty claims against the LRW defendants. For this point, she argues that (1) the LRW

defendants waived any defense related to disclaimer of warranties, (2) the “as is” clause in

the bill of sale was insufficient for the LRW defendants to disclaim all warranties, (3) the

defective seatbelt amounted to a latent defect that could not be disclaimed, (4) her express-

warranty claim was improperly dismissed, and (5) the claims against Robert Vowell were

improperly dismissed because Sandra David was acting as his agent at the time of the sale of

the vehicle.




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                                  A. The Products-Liability Claim

       To establish a cause of action for products liability, Madden must prove that (1) when

the LRW defendants sold the vehicle to her, a seatbelt defect was present that rendered her

vehicle unreasonably dangerous, and (2) the defect proximately caused her injuries. Ark.

Code Ann. § 4-86-102; Higgins, supra. A finding of liability on the part of the manufacturer

is not necessary for a supplier to be held liable for a defective product. The facts and analysis

on this issue as presented by the LRW defendants are essentially the same as those presented

by Mercedes and TRW in their motion for summary judgment on the products liability

claims against them.

       The LRW defendants adopted the arguments and evidence presented by Mercedes

and TRW in their motion for summary judgment and used that motion and its attached

exhibits to establish prima facie entitlement to summary judgment. That evidence includes

the testimony of Madden’s expert, Gerald Barnett, wherein he, as we have noted already,

stated that he would have to be “a psychic” to know when the alleged defect had occurred

and that he would have to examine the seatbelt to do more than speculate as to the cause of

the belt unlatching. Madden failed to offer any evidence that demonstrates the existence of

a material fact that would allow a jury to move beyond speculation regarding the cause of

the alleged defect.    We affirm the court’s order granting summary judgment on the

products-liability claim against the LRW defendants.

                                B. The Breach-of-Warranty Claims

       A preliminary issue raised by Madden is whether the LRW defendants waived any

defense they had related to the disclaimer of warranties. She argues that the disclaimer of


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warranties is an affirmative defense, and pursuant to Arkansas Rule of Civil Procedure 8(c),

the LRW defendants were required to assert the defense in their answer. We disagree.

Arkansas Code Annotated section 4-2-316 governs the disclaimer of warranties. Nothing

in that statutory section indicates that the disclaimer of warranties is an affirmative defense,

and Madden offers no authority for her argument that the exclusion or modification of

warranties is an affirmative defense that is waived if not timely raised in a responsive

pleading. In any event, the LRW defendants also reserved and pled all affirmative defenses

available under Ark. R. Civ. P. 8(c) in their answer as a belt-and-suspenders approach.

       Turning to the merits, we note that the exclusion or modification of warranties is

governed by Arkansas Code Annotated section 4-2-316. The statutory sections pertinent

to our review are as follows:

       (3) Notwithstanding subsection (2):

              (a)     unless the circumstances indicate otherwise, all implied
              warranties are excluded by expressions like “as is”, “with all faults” or
              other language which in common understanding calls the buyer’s
              attention to the exclusion of warranties and makes plain that there is
              no implied warranty; and

              (b)    when the buyer before entering into the contract has examined
              the goods or the sample or model as fully as he desired or has refused
              to examine the goods there is no implied warranty with regard to
              defects which an examination ought in the circumstances to have
              revealed to him; and

              (c)    an implied warranty can also be excluded or modified by
              course of dealing or course of performance or usage of trade.

Ark. Code Ann. § 4-2-316(3) (Repl. 2001).

       The bill of sale executed when Madden and her husband bought the vehicle from

the LRW defendants provided that the seller warranted only good and marketable title to
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the vehicle, and the property was “otherwise sold in ‘as is’ condition.” Arkansas Code

Annotated section 4-2-316(3)(a) provides that “all implied warranties are excluded by

expressions like ‘as is.’” Moreover, Madden and her husband acknowledged that they knew

the vehicle was sold “as is.”

       Although the inclusion of the “as is” clause in the bill of sale seems to settle the issue

of whether the LRW defendants made any warranties to Madden, she argues otherwise.

She contends that Ark. Code Ann. § 4-2-316(3)(b) imposes an additional requirement

necessary to disclaim all implied warranties. That section provides that “when the buyer

before entering into the contract has examined the goods or sample or model as fully as she

desires or has refused to examine the goods there is no implied warranty with regard to

defects which an examination ought in the circumstances to have revealed to him.” Ark.

Code Ann. § 4-2-316(3)(b). Madden argues that the conjunction “and” in Ark. Code Ann.

§ 4-2-316(3)(a) & (b) requires that the LRW defendants prove both the existence of an “as

is” clause and that the buyer examined the goods or refused to examine the goods in order

to be entitled to the defense of disclaimer of warranties.

       We disagree and hold that Arkansas Code Annotated section 4-2-316(b) is only

applicable when the defendants assert the exclusion or modification of an implied warranty

due to the buyer’s opportunity to examine the goods or a sample or model. See AMI Civ.

2514 note. Our reading of the provision itself as well as the notes on use of the jury

instruction indicates that the conjunction “and” was used to demonstrate that there are

multiple ways in which a disclaimer may be made. We hold that the “as is” clause in the

bill of sale was sufficient to disclaim all implied warranties.


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         Madden also argues that her breach-of-warranty claim against the LRW defendants

should have survived because the defective seatbelt amounted to a latent defect that could

not be disclaimed. But, as she herself concedes, this contention depends on the same

evidence she relied upon in sustaining her claim for products liability. As discussed more

fully above, Madden failed to establish a triable dispute on the point that a seatbelt defect

was present when she bought the vehicle.

         Next, Madden argues that the circuit court mistakenly dismissed her express warranty

claim.    The bill of sale contains no express warranty other than the conveyance of good

and marketable title. The only potential evidence that there was any other express warranty

comes from Madden’s testimony that Sandra David told her that the car was a good vehicle

that drove well. The statements purportedly made by Sandra David are insufficient to create

an express warranty because it is error to introduce oral testimony to vary the terms of a

sales agreement. See Green Chevrolet Co. v. Kemp, 241 Ark. 62, 406 S.W.2d 142 (1966).

Additionally, a necessary element for a breach-of-express-warranty claim is that the party

asserting the breach relied on the warranty term in making the decision to buy the vehicle.

Madden made no allegation that she relied on Sandra David’s statements, and a failure to

plead reliance on the warranty torpedoes an express-warranty claim. Ciba-Geigy Corp. v.

Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). The circuit court’s dismissal of the express-

warranty claim is likewise affirmed.

         Because we affirm the dismissal of all Madden’s claims against the LRW defendants,

we need not consider her final argument regarding whether Sandra David acted as Robert

Vowell’s agent when she sold the vehicle to Madden.


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      Affirmed.

      VAUGHT and HIXSON, JJ., agree.

       David A. Hodges and Timothy F. Watson, Sr., for appellant.

       Quattlebaum, Grooms & Tull PLLC, by: Steven W. Quattlebaum, E. B. Chiles IV, and

Amber Davis-Tanner; Barber Law Firm PLLC, by: G. Spence Fricke and A. Cale Block, for

appellees Mercedes-Benz U.S. International, Inc.; Mercedes-Benz USA, LLC; and TRW

Vehicle Safety Systems, Inc.

       Huckaby Law Firm, PLC, by: D. Michael Huckaby, Jr., and Kathryn B. Knisley, for

appellees Little Rock Wholesale, Robert Vowell, and Sandra David.




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