UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 17-1303


D’JARIS A. MOORE,

                   Plaintiff - Appellant,

             v.

ELITE METAL PERFORMANCE LLC,

                   Defendant - Appellee,

             and

ROBERT W. MURPHY; CAR SHOP TRAILER SERVICES LLC, d/b/a Best
Price Trailers,

                   Defendants.


Appeal from the United States District Court for the District of South Carolina, at
Beaufort. Richard Mark Gergel, District Judge. (9:16-cv-00318-RMG)


Submitted: March 29, 2018                                    Decided: April 3, 2018


Before WILKINSON, TRAXLER, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James A. Brown, Jr., LAW OFFICES OF JIM BROWN, PA, Beaufort, South Carolina,
for Appellant.   Taylor S. Braithwaite, Robin A. Braithwaite, BRAITHWAITE
TIMMERMAN, LLC, Aiken, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

          In this products liability action, D’Jaris A. Moore asserts strict liability,

negligence, and breach of warranty claims against Elite Metal Performance, LLC (“Elite

Metal”), arising from an alleged manufacturing defect in a tow dolly manufactured by

Elite Metal. 1 Moore and the driver of the vehicle towing the dolly were driving on

opposite sides of an interstate highway when one of the dolly’s wheels detached and

struck Moore’s vehicle, resulting in injuries to Moore. Moore appeals the district court’s

orders granting summary judgment for Elite Metal and denying reconsideration. We

affirm.

          We review de novo a district court’s decision to grant summary judgment,

“applying the same legal standards as the district court and viewing all facts and

reasonable inferences therefrom in the light most favorable to the nonmoving party.”

Grutzmacher v. Howard Cty., 

, 341 (4th Cir.) (internal quotation marks

omitted), cert. denied, 

(2017). Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The relevant inquiry is

“whether the evidence presents a sufficient disagreement to require submission to a jury

or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.

Liberty Lobby, Inc., 

, 251-52 (1986). To withstand a motion for summary


          1
          Moore also asserted claims against additional parties, with whom she settled in
the district court.


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judgment, “the nonmoving party must rely on more than conclusory allegations, mere

speculation, the building of one inference upon another, or the mere existence of a

scintilla of evidence.” Dash v. Mayweather, 

, 311 (4th Cir. 2013). We

review the denial of a motion for reconsideration for abuse of discretion. Wilkins v.

Montgomery, 

, 220 (4th Cir. 2014).

      Moore first contends that the district court erred in granting summary judgment for

Elite Metal on her strict liability and negligence claims by failing to consider

circumstantial evidence demonstrating the unreasonably dangerous and defective

condition of the dolly. Because Moore’s injuries occurred in South Carolina and removal

to district court was based on diversity of citizenship, South Carolina substantive law

applies to her strict liability and negligence claims. Oglesby v. Gen. Motors Corp., 

, 251 (4th Cir. 1999). In order to prevail in a manufacturing defect action under

South Carolina law, a plaintiff “must establish three elements: (1) [s]he was injured by

the product; (2) the injury occurred because the product was in a defective condition,

unreasonably dangerous to the user; and (3) the product, at the time of the accident, was

in essentially the same condition as when it left the hands of the defendant.” Rife v.

Hitachi Constr. Mach. Co., 

, 569 (S.C. Ct. App. 2005). “It is well-

established that one cannot draw an inference of a defect from the mere fact a product

failed” and “the plaintiff must offer some evidence beyond the product’s failure itself to

prove that it is unreasonably dangerous.” Graves v. CAS Med. Sys., Inc., 

,

658-59 (S.C. 2012).



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       The district court properly granted summary judgment to Elite Metal on Moore’s

strict liability and negligence claims because Moore failed to show sufficient evidence of

a manufacturing defect. First, to the extent that Moore seeks to raise new arguments on

appeal regarding her theory of improper bearing lubrication, she fails to demonstrate

exceptional circumstances warranting consideration of these arguments. See In re Under

Seal, 

, 285 (4th Cir. 2014). We next observe that Moore’s arguments

regarding the newness of the dolly, its mileage, and the minor nature of its preaccident

repair are not indicative of whether “the [dolly] was in a defective condition

unreasonably dangerous to the user,” but rather whether it was “in essentially the same

condition at the time of the accident as it was when it left the hands of the defendant.”

See 

(internal quotation marks omitted).              Elite Metal’s

statement that it had not previously experienced a wheel detaching from one of its dollies

is also not indicative of a manufacturing defect. Thus, the only proffered evidence of a

manufacturing defect is a technician’s purely factual observations of postaccident

photographs of the dolly. Such evidence is insufficient because the ordinary juror would

be unable to deduce a specific defect from these observations without expert testimony. 2

See 

Watson v. Ford Motor Co., 

, 175 (S.C. 2010). Because

summary judgment on Moore’s strict liability and negligence claims was proper, the

district court did not abuse its discretion in denying reconsideration of these claims.


       2
        Moore does not challenge on appeal the district court’s exclusion of her expert
testimony.


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       Moore next claims that the district court erroneously applied South Carolina’s

choice of law rules to conclude that North Carolina or Florida—rather than South

Carolina—substantive law applied to her breach of warranty claim. 3 She contends that

the district court misapplied South Carolina’s “most significant relationship” test to

determine choice of law and failed to consider South Carolina’s public policy exception

to its choice of law provisions.

       Because Moore initially brought this action in South Carolina state court, South

Carolina choice of law provisions apply to her breach of warranty claim. 

. In the absence of a choice of law agreement, the substantive law of the

South Carolina Commercial Code “applies to transactions bearing an appropriate relation

to [South Carolina].” S.C. Code Ann. § 36-1-301(b); see S.C. Code Ann. § 36-1-101(1);

Thornton v. Cessna Aircraft Co., 

, 89-90 (4th Cir. 1989). This Court applies

the “most significant relationship” test to determine whether the relevant transactions

have an appropriate relation to South Carolina. In re Merritt Dredging Co., 

, 207 (4th Cir. 1988) (listing factors to consider).

       The district court did not err in determining that North Carolina or Florida

substantive law applied under the most significant relationship test, as Elite Metal

manufactured the dolly in North Carolina and sold it to a store in Florida, which later sold


       3
          Moore conceded before the district court that application of North Carolina or
Florida substantive law would bar her breach of warranty claim and she does not argue
on appeal that her breach of warranty claim would survive summary judgment under
either state’s laws.


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the dolly to a Florida resident. See 

(holding that “breach of

warranty claim bears an appropriate relationship to South Carolina” because “plaintiff’s

decedent was a resident of South Carolina, he purchased the airplane in South Carolina,

he acquired the protections of the warranty in South Carolina, and he permanently stored

and maintained the airplane in South Carolina”).        With regard to the public policy

exception to South Carolina’s choice of law rules, even if the exception applied to breach

of warranty claims, Moore fails to demonstrate entitlement to such exception. See 

(“[T]he absence of a comparable South Carolina statute of repose does not render the

Tennessee statute contrary to South Carolina public policy”). Thus, the district court also

properly granted summary judgment on Moore’s breach of warranty claim and did not

abuse its discretion in denying reconsideration of this claim.

       Accordingly, we affirm the district court’s orders granting summary judgment and

denying reconsideration. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                                              AFFIRMED




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