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Shepherd v. Weather Shield Manufacturing8/18/2000
defendant Weathershield as to the defective design and construction of their products where they met - apparently met industry standards in past laboratory tests. The Admiralty Condominium case in 1989 in Port Clinton, Ohio, which was cited by Mr. Wilkins and plaintiff's attorney only showed that the same types of windows and doors were involved in that proceeding and that Mr. Wilkins faulted the design and manufacture in his conversations with a Mr. Lemke who was a Weathershield representative.
The basis for the plaintiff's Consumer Protection Act claim is the alleged fact that Weather Shield had known since 1989 that windows of the same type sold to her were defective. As proof of this contention, the plaintiff cites the testimony of Dan Wilkins regarding his knowledge of a project in Port Clinton, Ohio, for which he had been hired as an expert in 1989. However, the proof is sparse regarding this project and the basis for linking the 1989 Ohio project and the construction of the plaintiff's house. Regarding the Ohio project, Mr. Wilkins testified:
Q . What did that investigation reveal?
A. That the windows had a glazing detail comprised of an interior plastic or vinyl receiver at the wood stop and the exterior snap-in metal glazing bead very similar to what I described for Cybil Shepherd's house.
Q. What was the effect of those details back in `89, on the problem back in `89?
A. Essentially, as I've described today, they let water in and trapped water against wood and the wood rotted.
Q. And in your expert opinion is there any difference in those details that you discovered in 1989 as opposed to the details in the window and door design in this litigation?
A. Functionally, they're identical.
We agree with the trial court that this and related testimony of Mr. Wilkins is insufficient to establish a claim that Weather Shield had prior knowledge that the products installed in the plaintiff's house were defective. Accordingly, we concur with the trial court's denying the plaintiff relief pursuant to the Tennessee Consumer Protection Act.
CONCLUSION
Based upon our review, we affirm the trial court's finding that the plaintiff failed to state a claim against the defendant pursuant to the Tennessee Consumer Protection Act. We reverse the finding of the trial court that the plaintiff is entitled to recover damages against Weather Shield and remand for the dismissal of those claims. Costs of the appeal are assessed against the plaintiff, Cybill Shepherd.
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