     Case: 19-10757      Document: 00515219015         Page: 1    Date Filed: 12/02/2019




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

                                                                               FILED
                                                                          December 2, 2019
                                    No. 19-10757
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk


ROBERT YOUNG, JR.

                                                 Plaintiff – Appellant

v.

CINTAS CORPORATION NUMBER TWO,

                                                 Defendant – Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:18-CV-990


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Robert Young suffered serious injuries when the shirt he was wearing
caught fire while he was welding. He sued the shirt’s manufacturer, Cintas
Corporation Number Two. The district court granted summary judgment to
Cintas on all claims.       The court rejected Young’s products liability claim
alleging a marketing defect because there is no duty to warn when the risks of
a product are “within the ordinary knowledge common to the community.” Am.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-10757      Document: 00515219015     Page: 2   Date Filed: 12/02/2019


                                   No. 19-10757

Tobacco Co. v. Grinnel, 951 S.W.2d 420, 426 (Tex. 1997). The district court
concluded that doctrine barred the marketing defect claim because “it is
common knowledge . . . that a non-flame retardant uniform suffers from the
danger of catching fire and causing injury when exposed to sparks derived from
welding.” The district court also dismissed Young’s negligence claim on the
ground that it was based only on allegations about the dangerousness of the
product. See Garrett v. Hamilton Standard Controls, Inc., 850 F.2d 253, 256–
57 (5th Cir. 1988) (explaining that a negligence claim failed because the jury
rejected the strict liability claim that involved some of the same elements as
the negligence claim). The district court thus held that the negligence claim
was “subsumed within the failed strict liability claim.”
      On appeal, Young first argues that his negligence claim did not rely
solely on the contention that the shirt was unreasonably dangerous. Instead,
he claims, his affidavit supported a “negligent undertaking” theory because he
stated that a Cintas representative knew Young was a welder yet selected a
cotton shirt for Young that was not flame retardant. Young contends that once
Cintas undertook this duty to select the shirt, the company had a duty under
Section 323 of the Restatement (Second) of Torts to exercise its duty with
reasonable care. But Young did not assert a negligent undertaking claim in
the district court, so this claim is forfeited.
      Moreover, the “common knowledge” doctrine defeats both a strict
liability and negligence claim. Grinnel, 951 S.W.2d at 437. And for the reasons
it stated, we agree with the district court that, as a matter of law, it is common
knowledge that a cotton shirt is flammable. See Coleman v. Cintas Sales Corp.,
100 S.W.3d 384, 386 (Tex. App.—San Antonio 2002, writ denied).
      The judgment is AFFIRMED.




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