The Court of Appeals for the First Circuit held that plaintiff must prove that a product is particularly dangerous when it is used under certain conditions. In Geshke v. Crocs, 740 F.3d. 74 (1st Cir. 2014) a 9 year old girl was injured when a Crocs sandal she was wearing became entrapped in the side of a moving escalator. Plaintiff claimed that the shoes presented a heightened risk of safety to wearers using escalators and that the defendant manufacturer failed to warn of this risk.
The Appellate Court said that the plaintiff had the burden of showing that Crocs posed a heightened risk of escalator entrapment. In opposition to Defendant’s Motion for Summary Judgment the Plaintiff offered evidence of a dozen prior incidents in which customers claimed to have had their feet entrapped in an escalator and that the sandals had a hang tag warning label which spoke in general about escalator safety. This was not enough. The Court of Appeals affirmed the entry of summary judgment saying:
“To sum up, the plaintiff’s case hinges on demonstrating that the defendant’s product was particularly dangerous on escalators. Yet even after full discovery, the plaintiff failed to adduce significantly probative evidence on this point sufficient to allow a reasonable jury to find in her favor. Thus, she has not made the required showing of each and every element essential to her case, See Celotex Corp. v. Catrett, (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.574, 586 (1986) (requiring non-movant to “do more than simply show that there is some metaphysical doubt as to the material facts”). She has pointed to CROCS sandals as a possible cause of her daughter’s misfortune, but [m]erely raising possibilities does not bridge the gap between fact and theory.” Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London, 637 .F.3d 53, 58 (1st Cir. 2011). (740 F.3d. at p. 80)”