     Case: 16-11404         Document: 00513966730        Page: 1     Date Filed: 04/25/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                      No. 16-11404                                 FILED
                                    Summary Calendar                           April 25, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
TERRY CHAMBERS,

                 Plaintiff - Appellant

v.

TROY-BILT, L.L.C.,

                 Defendant - Appellee




                     Appeal from the United States District Court
                          for the Northern District of Texas
                                USDC No. 3:14-CV-569


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       In this products liability case, the district court 1 granted summary
judgment in favor of Defendant Troy-Bilt, L.L.C because there was no dispute
of material fact as to causation. We AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1   This case was considered by a magistrate judge pursuant to 28 U.S.C. § 636(c).
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                                 No. 16-11404
                                       I.
      This dispute concerns injuries that Terry Chambers sustained in a fire
that occurred in his garage.     According to Mr. Chambers, a lawn mower
designed and manufactured by Defendant Troy-Bilt, L.L.C. (“Troy-Bilt”)
exploded, causing the fire and his injuries.
      During his deposition, Mr. Chambers described the facts leading up to
the incident as follows. The day before the fire, Mr. Chambers’s wife, Peggy
Chambers, used the lawn mower to mow the front and back yard. After she
brought the lawn mower back to the garage, Mr. Chambers washed it off and
pulled it into the garage. The next day, Mr. Chambers noticed that his wife
had not mowed two strips of grass by the driveway, so he took out the lawn
mower, mowed the two strips of grass, washed off the lawn mower, and pulled
it into the garage. More specifically, he testified that he took the lawn mower
to the street and came straight back, which took around three minutes. He
then stopped the lawn mower in front of the garage, turned the engine off, and
used a hose to wash both the top deck and underneath the mower. After
waiting two or three minutes, Mr. Chambers turned the lawn mower back on,
drove it into the garage (a distance of about thirty feet), and turned off the
engine. Soon after Mr. Chambers was back in the house, Mrs. Chambers asked
him if he had heard what sounded like somebody shooting a gun. Another
minute or two later, Ms. Chambers asked Mr. Chambers if he was burning
something, at which point Mr. Chambers proceeded into the garage and saw
the lawn mower was on fire. Mr. Chambers sustained burns while attempting
to push the lawn mower out of the garage.
      According to Mr. Chambers’s causation expert, Richard Dyer, the fire
was caused when gasoline released from the fuel tank vaporized and the vapors
ignited when they came into contact with the hot engine exhaust components.
Importantly, however, Dyer stated that, if Mr. Chambers’s testimony
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                                      No. 16-11404
regarding the events leading up to the fire were true, the hot exhaust
components could not be a valid ignition source because they would not be hot
enough to ignite the gasoline vapors.
       In its subsequent motion for summary judgment, Troy-Bilt argued that
Mr. Chambers’s deposition testimony was a judicial admission and thus Mr.
Chambers could not establish causation based on Dyer’s testimony. In his
response, Mr. Chambers argued that his deposition testimony was an
evidentiary admission and pointed to the deposition testimony of his wife as
establishing a factual dispute regarding causation. The district court granted
Troy-Bilt’s motion for summary judgment, and Mr. Chambers appealed.
                                             II.
       The district court exercised diversity jurisdiction, 2 28 U.S.C. § 1332, and
we have jurisdiction over the appeal from a final judgment, 28 U.S.C. § 1291.
       We review a grant of summary judgment de novo. United States v.
Lawrence, 276 F.3d 193, 195 (5th Cir. 2001). Summary judgment is proper
where there is no genuine dispute of material fact, and a party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a). We “must view the evidence
introduced and all factual inferences from the evidence in the light most
favorable to the party opposing summary judgment[, and a] party opposing
summary judgment may not rest on mere conclusory allegations or denials in
its pleadings.” Hightower v. Tex. Hosp. Ass’n, 65 F.3d 443, 447 (5th Cir. 1995)
(citations    omitted).         “[C]onclusory       statements,       speculation,      and
unsubstantiated assertions cannot defeat a motion for summary judgment.”
RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010). We may affirm




       2 The parties submitted supplemental letter briefing on diversity jurisdiction, and we
are satisfied that the district court properly exercised subject matter jurisdiction.
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                                 No. 16-11404
the grant of summary judgment on any basis raised below that is supported by
the record. See City of Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014).
                                      III.
      On appeal, Mr. Chambers maintains that his deposition testimony was
an evidentiary admission, not a judicial admission. We need not decide this
issue because, even assuming arguendo that his statements were evidentiary
rather than judicial admissions, he failed to raise a fact issue refuting those
admissions.
      To refute his deposition testimony regarding how long the lawn mower
was running, Mr. Chambers points to the deposition testimony of his wife that
the lawn mower ran for nine or ten minutes.           The problem with Mrs.
Chambers’s testimony, however, is that her accounting of the duration is based
upon speculation. When asked how long the conversation between her and her
husband was, she was equivocal, stating “I’m going to say [it was] about two
minutes” and later that it was “three or four minutes.” As to how long Mr.
Chambers sat on the lawn mower in the garage, Mrs. Chambers expressed
uncertainty, first stating “for a few minutes,” then saying “I don’t know how
long it was,” and finally stating “I’m guessing it was two, three minutes. It
could have been a minute.” This type of speculation is not sufficient to create
a genuine issue of material fact. See Ruiz v. Whirlpool, Inc., 12 F.3d 510, 514
(5th Cir. 1994) (an expert’s opinion “that the relays for the evaporator blower
fan motor could have been a source of the fire” was not sufficient to defeat
summary judgment); see also Keating v. Pittston City, 643 F. App’x 219, 224–
25 (3d Cir.), cert. denied, 137 S. Ct. (2016) (“A lack of memory does not create
a genuine dispute because an answer such as ‘I don’t recall’ is insufficient
evidence to rebut affirmative testimony or at least create ‘fair doubt.’”).
Accordingly, there is no genuine dispute of material fact, and summary
judgment was proper. AFFIRMED.
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