Hager v. Crepaco, Inc.
Hager v. Crepaco, Inc.
Opinion of the Court
OPINION AND ORDER
Before the court is Defendants’ Motion for Summary Judgment as to Count Three. For the following reasons, .the motion is granted.
I. BACKGROUND
Plaintiff Samuel Hager, Jr. (“Hager”) was a maintenance employee for more than twenty years at Congra Frozen Foods in Crozet, Virginia. On October 8, 1994, Hager was injured when Clean-in-place (“CIP”) machine No. 358 overflowed and splashed lye on a substantial portion of his body.
Defendants Crepaco, Inc. and/or APV Crepaeo, Inc. (“Crepaco”), is a Delaware corporation with its principal place of business in Illinois. Crepaco designs, manufactures, and sells CIP machines. • Robert Schneider (“Schneider”), the after-market sales manager for Crepaco, admits that Crepaco designed, manufactured, and sold CIP machine No. 358 between May 2, 1973, and September 18,1973.
On October 7, 1996, Hager filed a four count complaint against Crepaco for’ bodily injuries he sustained when the CIP machine spewed scalding liquid.
II. DISCUSSION
Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); GCIU Employer Retirement Fund v. Chica
Here, Crepaco does not address the material facts encompassing Hager’s strict liability claim. Rather, based on the Illinois statute of repose, 735 ILCS 5/13-213(b) (1993),
Nevertheless, Hager attempts to save his strict liability claim by arguing that Illinois law is not controlling. Under a conflict of law analysis, Hager claims that Virginia substantive law governs. Hager correctly notes that federal courts sitting in Illinois apply the “most significant relationship test” when determining which substantive state law applies. Miller v. Long-Airdox Co., 914 F.2d 976, 978 (7th Cir. 1990). Lex loci delicti, the place where the injury occurred, is considered the most important factor in this analysis. Id. (citing Restatement (Second) of Conflict of Laws § 145, Comment e, at 420). Hager, therefore, concludes that Virginia law applies to this case because'the injury giving rise to this action occurred in Virginia, the CIP machine was sold in Virginia, Hager lives in Virginia, and Crepaco does business in Virginia.
Assuming arguendo, that Hager is correct,' and Virginia substantive law controls, Hager still may not bring a claim sounding in strict product liability. Virginia has not adopted § 402 of the Restatement (Second) of Torts. Sensenbrenner v. Rust, Orling & Neale, Architects Inc., 236 Va. 419, 374 S.E.2d 55, 57 n. 4 (1988). Thus, in Virginia, tort recovery based on a strict product liability theory is not permitted. Harris v. T.I., Inc., 243 Va. 63, 413 S.E.2d 605, 609-10 (1992); Sensenbrenner, 374 S.E.2d at 57. In fact, the only permutation of strict liability recognized in Virginia involves “ultra-hazardous activities, such as blasting.” Providence Village Townhouse Condominium Ass’n v. Amurcon-Loudoun Corp., No. 12206, 1994 WL 740045, at *3 (Va. Cir. Ct. Jan.19, 1994); Philip Morris Inc., v. Emerson, 235 Va. 380, 368 S.E.2d 268, 282 (1988). Accordingly, as a matter of law, under Illinois or Virginia law, Hager may not maintain a tort claim against Crepaco sounding in strict product liability.
III. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment as to Count Three is granted.
IT IS SO ORDERED.
. The pleadings do not reflect what Hager was doing or where he was in relation to the CIP machine when it allegedly malfunctioned.
. Schneider does not admit that it sold the CIP machine directly to Hager's employer. However, for purposes of deciding this motion, that point is irrelevant.
. Count I advances a negligence theory. Count II seeks damages based on breach of warranties. Count IV is brought by Hager's spouse for loss of consortium. (Compl.HH 4—9, 10-16,21-23).
. The court notes that neither party complied with the filing requirements of Local Rule 12(M) and 12(N). However, Crepaco’s memorandum supporting its motion does present the material facts in numbered paragraph form and is supported by affidavit. Although Crepaco's motion does not lend itself to a concise response in accordance with Local R. 12(N)(3)(a), nothing prevented Hager from submitting its own version of the. uncontested facts pursuant to 12(N)(3)(b). Furthermore, Hager’s pleadings do not address, in any form or manner, the material facts which Crepaco claims are necessary to decide its motion. Hager simply chose to argue questions of law. Therefore, the court treats Crepaco’s uncontested facts as admitted by Hager. Oates v. Discovery Zone, 116 F.3d 1161, 1167 (7th Cir. 1997); Knox v. McGinnis, 998 F.2d 1405, 1408 n. 8 (7th Cir. 1993).
. In relevant part, 735 ILCS 5/13-213(b) provides:
[N]o product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier____
Reference
- Full Case Name
- Samuel HAGER, Jr., and, Priscilla Hager, husband and wife v. CREPACO, Inc. and/or APV Crepaco, Inc.
- Status
- Published