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Ryan v. Brookdale Int'l Sys.

United States Court of Appeals for the Fifth Circuit

April 12, 2007, Filed

No. 06-20800 Summary Calendar

Opinion

 [*367]  PER CURIAM: 1 

 [**2]  Plaintiff-Appellant Stephen Ryan filed suit individually and on behalf of a nationwide class of individuals similarly situated alleging breach of express warranty, breach of implied warranty, and fraud against Defendants-Appellees Brookdale International Systems, Inc. and E.I. du Pont de Nemours and Company (collectively referred to as "Appellees"). These claims arise from the purchase of Emergency Escape Smoke Hoods, manufactured by Appellees, and marketed as a personal air filtration system to be used in fire and smoke emergencies. The product was supposed to provide fifteen minutes of protection from soot, smoke and carbon monoxide. Each device could only be used once and there was a shelf life of five or eight years depending on the model.

Ryan purchased three smoke hoods for a total of $ 199.50 plus $ 7.50 in shipping. One year later, in cooperation with the U.S. Consumer Product Safety Commission, Appellees voluntarily issued a "Suspend Use" advisory and recalled these devises after discovering that some of the smoke hoods could fail to work properly by exposing the user to carbon monoxide which could compromise their ability to escape the fire threat. Pursuant to the recall,  [**3]  Appellees offered purchasers a prorated refund based on the remaining shelf life of each smoke hood. Ryan claims he is entitled to a full refund plus shipping since he never received a benefit from the product and because the product sold by the Appellees was "useless."

The district court found that Ryan lacked standing to bring his claims and dismissed the case. The court cited Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315 (5th Cir. 2002), to support its finding that Ryan had suffered no injury in fact. Ryan timely appeals.

] Standing is a question of law that we review de novo. Rivera, 283 F.3d at 319.  [*368]  "To establish an injury in fact, plaintiffs must demonstrate 'an invasion of a legally protected interest which is. . . concrete and particularized.'" Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). Ryan never used his smoke hoods, so there is no allegation of injuries arising from any defects in the product; in fact it is unknown if his smoke hoods were in fact defective and would not have functioned properly. Instead, Ryan's only allegation of injury is the money he spent to purchase and [**4]  ship the product.

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230 Fed. Appx. 366 *; 2007 U.S. App. LEXIS 8447 **

STEPHEN M. RYAN, Individually and as for others similarly situated, Plaintiff - Appellant, v. BROOKDALE INTERNATIONAL SYSTEMS INC.; E.I. DUPONT DE NEMOURS & CO., Defendants - Appellees.

Notice:  [**1]  PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Subsequent History: On remand at, Motion granted by, in part, Motion denied by, in part, Claim dismissed by Ryan v. Brookdale Int'l Sys., 2007 U.S. Dist. LEXIS 82359 (S.D. Tex., Nov. 6, 2007)

Prior History: Appeal from the United States District Court for the Southern District of Texas, Houston. USDC No. 4:06-CV-1819.

Disposition: AFFIRMED IN PART, REMANDED IN PART.

CORE TERMS

smoke, hoods, injury in fact, product liability claim, contract law, implied warranty, purchaser, shipping, benefit of the bargain, carbon monoxide, alleged breach, district court, fraud claim, side effect, shelf life, no injury, manufactured, plaintiffs', Emergency, no-injury, Consumer, concrete, recalled, damages, refund, warn

Civil Procedure, Appeals, Standards of Review, De Novo Review, Justiciability, Standing, Injury in Fact