The First Circuit Court of Appeals has affirmed a district court’s grant of summary judgment following pretrial discovery, agreeing that the plaintiff failed to demon- strate, under Massachusetts law, that CROCS® shoes present a heightened risk of escalator entrapment. Geshke v. Crocs, Inc., No. 12-2204 (1st Cir, decided January 17, 2014). The plaintiff’s 9-year-old daughter was allegedly injured when her right foot, clad in a CROCS® resin sandal, became entrapped in the side of an escalator. At issue on appeal was whether the plaintiff could carry her burden of proving the breach of a cognizable duty as to failure to warn and breach of implied warranty of merchantability.

The court determined that the “evidentiary pillars” the plaintiff adduced were insuf- ficient to “permit a rational jury to find that CROCS sandals pose a heightened risk   of elevator entrapment.”The evidence included (i) “cryptic incident reports” from the company’s files regarding previous complaints about children and escalator entrap- ment; according to the court, these reports constituted “meager anecdotal history” that “sheds no light on whether this quantum of complaints is atypical of the shoe industry”; (ii) an unauthenticated Japanese ministry report comparing escalator entrapment tests for a variety of shoe types including resin sandals made by seven unidentified manufacturers; (iii) the company’s response to that report, i.e., the design of a new sandal model for the Japanese market, characterized by the court as “not, in and of itself, sufficient to warrant a conclusion that the regulator’s concern is justified”; and (iv) the company’s decision to include “a generalized escalator safety warning on the hangtag of its sandals.” As to the latter, the court noted that the warning label “makes no mention of any special danger posed by CROCS. It speaks, in the most general terms, about escalator safety.”

In the court’s view, “To conclude from this evidence that CROCS posed a heightened risk of escalator entrapment would require a surfeit of speculation and surmise far beyond the outer limits of the summary judgment standard.”