Willard v. Park Industries CV-97-581-M 01/05/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Timothy Willard, Plaintiff

v. Civil No. 97-581-M

Park Industries, Inc., Defendant

O R D E R

In this diversity action, plaintiff Timothy Willard asserts

claims of (1) negligent design, (2) failure to warn, and (3)

breach of warranty of merchantability against defendant Park

Industries. Willard says he was injured when, after the roller

conveyor system designed and manufactured by Park malfunctioned,

he attempted to manually move several large, heavy pieces of

granite blocks along the failed roller conveyor system.

Presently before the court is Park's motion for summary

judgment on all counts. Plaintiff has neither objected to

defendant's motion, nor has he challenged any facts asserted by

defendant. And, plaintiff failed to appear at a scheduled

hearing on defendant's motion. Defendant's motion is granted and

judgment shall be entered in defendant's favor.

Background

The uncontested facts show that in October of 1994 Willard

injured himself while working at the Swenson Granite Company

("Swenson"), in Concord, New Hampshire. At the time, he was attempting to move a group of large, heavy pieces of granite

blocks along a roller conveyor system, designed and manufactured

by defendant. Park's roller conveyor system basically consists

of a set of rails and roller assemblies. The individual rollers

rotate on bearing assemblies to permit them to rotate about their

axles. The axles, themselves, do not rotate, but are fixed to

the rails by vertical bolts.

Swenson purchased the roller conveyor system from Park to

enable its employees to easily move (role) large granite blocks

to various stations. Park concedes that the bolts attaching the

axles to the rails will occasionally break due to the shear

stress caused by the displaced weight of the heavy granite

blocks. And, whenever a bolt breaks, the rollers fixed to the

rails by the broken bolts will become free.

In his complaint, plaintiff alleges that on the day of his

injury the displaced weight of the granite blocks he was moving

caused one of the vertical bolts to break. As a result, the

roller associated with that broken bolt became free from the rail

and subseguently floated forward, where it came into contact with

a second roller. The two rollers jammed up against each other,

causing the entire conveyor system to bind.

While plaintiff cannot identify the particular roller that

broke, he was aware of the failure and immediately sought to fix

the roller by replacing the broken bolt (the standard procedure).

Prior to replacing the bolt, however, it was necessary to remove

the existing granite blocks that were sitting on the conveyor

2 system. However, rather than using a crowbar or requesting the

assistance of co-workers to help him move the granite blocks over

the broken roller, plaintiff instead pushed the granite blocks

"with all [his] body and all [his] might." Plaintiff's Depo.

217, lines 22-23. Plaintiff says that his injury occurred while

he was pushing the blocks over the known broken roller.

Discussion

I. Standard for Summary Judgment.

Summary judgment shall be granted "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." Rule 56(c), Fed. R.

Civ. P. In considering whether or not a genuine issue of

material fact exists, the evidence of the nonmoving party is to

be believed and all justifiable inferences are to be drawn in his

favor. See Anderson v. Liberty Lobby, Inc.,

(1986) .

The moving party bears the burden of demonstrating that

there is no genuine issue as to any material fact. See Finn v.

Consolidated Rail Corp.,

(1st Cir. 1986) . "To

demonstrate that no genuine issue of material fact exists, the

moving party must point out 'an absence of evidence supporting

the nonmoving party's case.'" Oliver v. Digital Equip. Corp.,

3

(1st Cir. 1988) (quotingCelotexCorp. v.

Catrett,

(1986)).

"Once the defendant has made a properly supported motion for

summary judgment, however, [plaintiff] 'may not rest upon mere

allegation or denials of [his] pleading, but must set forth

specific facts showing there is a genuine issue for trial.'" Snow

v. Harnischfeger Corp.,

(1st Cir. 1993)

(quoting Anderson,

). "Thus, summary judgment is

proper when, . . . the party against whom judgment is sought

fails to show sufficient basis for the establishment of an

essential element of its case.'" Kauffmanv. Puerto Rico Tel.

Co., 841 F .2d 1169, 1172 (1st Cir. 1988).

II Negligent Design.

Willard alleges that Park negligently designed the conveyor

system it sold to his employer by failing to test the product to

determine the level of force that could be safely required of

humans to move the blocks when the rollers failed.

A product is defectively designed when it "is manufactured

in conformity with the intended design but the design itself

poses unreasonable dangers to consumers." Thibault v. Sears,

Roebuck & C o .,

(1978). This contrasts with a

manufacturing defect, which occurs when, "due to an accidental

variation caused by a mistake in the manufacturing process," the

product "does not conform to the great majority of products

manufactured in accordance with that design."

4 To succeed at trial on his theory of negligent design,

plaintiff would have to prove by a preponderance of the evidence

that defendant violated its duty of care in the design of the

roller conveyor system in guestion and that the breach caused

plaintiff's injuries. See Goodwin v. James,

(1991) .

Unless Willard produces evidence from which a reasonable

jury could conclude that Park violated the standard of due care

in the design of the roller conveyor system. Park is entitled to

summary judgment. See Walker v. General Elec. Co.,

(1st Cir. 1992). In Walker, the plaintiff brought suit

against the manufacturer of a toaster-oven, alleging that the

toaster-oven had malfunctioned and caused a fire which destroyed

the plaintiff's home. The First Circuit upheld a directed

verdict for the defendant because, although there was evidence

that the toaster-oven malfunctioned, "there was no evidence that

defendant had violated the standard of due care in the design or

manufacture of the toaster-oven."

Similarly, in the present case, plaintiff has failed to come

forward with any evidence that defendant violated the standard of

care in its manufacture or design of the roller conveyor system.

Nothing in the pleadings suggests that defendant was negligent in

any way with respect to the design of the product. Although, as

in Walker, there is evidence that the roller conveyor system

malfunctioned, plaintiff has provided no evidence in support of

his claim that defendant's design posed an unreasonable danger to

5 consumers. See Thibault,

. Because no reasonable

juror could find in favor of plaintiff's claim of negligent

design on this undeveloped record, defendant is entitled to

judgment as a matter of law. Perhaps plaintiff could have

proffered some useful evidence, but he has not done so.

III. Strict Liability - Failure to Warn.

In Count II of his complaint, plaintiff alleges strict

liability against defendant, claiming that Park's roller conveyor

system was defective and unreasonably dangerous, and that it was

placed in the stream of commerce without an adeguate warning

concerning its unreasonably dangerous condition.

Under New Hampshire law, "an inadeguate warning constitutes

a design defect." Duford v. Sears, Roebuck & Co.,

(1st Cir. 1987) (citations omitted). In an action for strict

liability alleging a design defect, "the plaintiff must first

prove the existence of a 'defective condition unreasonably

dangerous to the user.'" Thibault,

(guoting

Buttrick v. Lessard,

(1969)).

The New Hampshire Supreme Court has observed "that there

will seldom be a case based upon strict liability where a person

will be able to testify from his personal knowledge that a

particular product was sold in a certain defective condition."

Foss v. Byrnes Chevrolet, Inc.,

(1979). Although

there is no general rule reguiring expert testimony, the Court

has recently taken the position that such "testimony is reguired

6 whenever 'the matter to be determined is so distinctly related to

some science, profession, business or occupation as to be beyond

the ken of the average layman." Lemav v. Burnett,

(1995) (citations omitted). "This requirement serves to

preclude the jury from engaging in idle speculation."

. This requirement concerning the introduction of expert

testimony also extends to the issue of a defendant's alleged

failure to warn. See

The plaintiff in a strict liability case must also prove

that the "purpose and manner of his use of the product was

foreseeable by the manufacturer." Thibault,

.

See also Fortier v. Olin,

(1st Cir. 1988) ("the

defect and danger must be examined having in mind the

manufacturer's general duty, which 'is limited to foreseeing the

probable results of the normal use of the product or a use that

can be reasonably anticipated.'" (quoting Thibault,

)) .

Similarly, a manufacturer's duty to warn "extends only to

dangers that are reasonably foreseeable." Duford,

; see also Thibault,

("Manufacturers cannot

foresee and warn of all absurd and dangerous uses of their

product."). Consequently, the New Hampshire Supreme Court has

"reject[ed] cases that demand that a manufacturer warn against

uses which were neither intended by the manufacturer nor within

the reasonably foreseeable use of the product." Thibault,

.

7 In addition to foreseeability, the plaintiff in a strict

liability case must prove causation. See

Specifically, the

plaintiff must show that "the unreasonably dangerous condition

existed when the product was purchased, and that the dangerous

condition caused the injury."

See, e.g., Buttrick v.

Lessard,

(1969) (plaintiff must prove that the

malfunction of automobile lights caused the accident and that the

malfunction arose from a defect present at the time of purchase).

However, "[p]roduct misuse, abnormal use, and a plaintiff's

decision to encounter a known risk are all valid defenses in a

products liability case," and are collectively known under New

Hampshire law as "plaintiff's misconduct." Fortier,

. "The words 'plaintiff's misconduct' accurately describe

what action by the plaintiff, combined with the interaction of a

defendant's product, caused an accident or injury." Thibault,

.

In Buttrick v.

the New Hampshire Supreme

Court addressed the issue of "plaintiff's misconduct" as a

defense in a products liability action. See

. There,

the plaintiff brought suit for personal injuries allegedly

resulting from a defect in a motor vehicle. Buttrick,

. The defendants produced evidence indicating that after he

discovered the defect, "plaintiff continued to use the car with

full knowledge of the defect and with no absolute assurance that

it had been repaired."

. According to the court, "the conduct of the plaintiff in

continuing to use the car with knowledge of [the] defect and his

operation of the car during the period leading up to the accident

will bear on the guestion of his . . . negligence."

.

Conseguently, if a jury finds the plaintiff's conduct to be "the

sole cause of the accident, the plaintiff is barred from

recovery." Thibault,

; see Buttrick,

.

In the present case, plaintiff has disclosed no witnesses,

expert or lay, to testify as to the allegedly defective condition

of the roller conveyor system, or to defendant's alleged failure

to provide proper warnings. In addition, plaintiff has stated in

his deposition that he cannot even identify which particular

roller was defective. Without such expert testimony, plaintiff's

allegations remain mere conjecture, as he has no competent

evidence beyond his own speculation regarding the condition of

the roller conveyor system.

Moreover, though plaintiff suggests that it was common for

the rollers to malfunction under the stress of the granite

blocks, he has not provided the court with reliable evidence

tending to show that defendant should have foreseen that

plaintiff would have simply pushed, without any assistance, the

granite blocks over the frozen rollers in the event of such a

malfunction. The very purpose of the roller conveyor system was

to assist plaintiff in moving the large blocks of granite. Given

that purpose, plaintiff has failed to show why defendant should have foreseen that plaintiff would not have sought other

temporary assistance in moving the blocks when the rollers

jammed.

Finally, plaintiff has failed to provide any evidence which

would tend to counter defendant's assertion that it was his own

misconduct (i.e., attempting to manually move the granite blocks

over a known broken conveyor) rather than the allegedly defective

conveyor system itself, that actually caused his injury.

Thus, because plaintiff has failed to present any evidence

of facts that might establish causation, foreseeability, and the

existence of an unreasonably dangerous defect in the product, he

cannot sustain his burden of proof at trial. Accordingly, even

taking the undisputed facts of record and considering them in the

light most favorable to plaintiff, defendant's motion for summary

judgment must be granted on his strict liability claim.

IV. Breach of Warranty.

In Count III of his complaint, plaintiff alleges that

defendant breached express and implied warranties, because the

conveyor system was neither of merchantable guality, nor safe for

the particular purposes intended.

As there is no common law of breach of warranty in New

Hampshire, plaintiff's right of recovery, if any, is governed by

New Hampshire Revised Statutes Annotated (RSA) 382-A:2-313, 2-

314, or 2-315. "RSA 382-A:2-314 generally provides that a seller

impliedly warrants that his goods are merchantable or generally

10 fit for the 'ordinary purposes' for which the goods are used,

unless the seller validly excludes or modifies the warranty."

Xerox Corp. v. Hawkes,

(1984); see also H .G .

Fischer X-Rav Co. v. Meredith,

(1981) ("Absent

a valid disclaimer, see RSA 382-A:2-316, any express warranties

made by the seller and an implied warranty of merchantability

attach to the goods that are the subject of a sale.").

If a plaintiff is to succeed on a claim of breach of implied

warranty of merchantability, there must be actual proof of such

noncompliance with the warranty. See, e.g., Elliot v. Lachance,

("the plaintiff has the burden of proving that

[the] injury resulted from the unmerchantability or

unsuitableness of the product"). Because "proof of mere injury

furnishes no rational basis for inferring that the product was

defective for its intended use," plaintiff may not rely on the

sole fact that an accident occurred to show a breach of warranty.

(citations omitted). Rather, he must provide the court with

evidence that the product was unfit for its ordinary and intended

use.

Plaintiff concedes that he does not know which particular

roller of the conveyor system caused the malfunction, and he has

not submitted any evidence to the court to support a finding that

the product was "defective." Apparently, given the nature of the

product and its intended use under conditions of high stress,

occasional mechanical failures were generally expected, and were

routinely repaired in an accepted fashion. The record does not

11 show that plaintiff's injuries were caused by such mechanical

failure, but by his apparent insistence on pushing the granite

blocks notwithstanding the known roller failure. Because

plaintiff has not presented evidence of facts which would support

a finding that the roller conveyor system was unfit for its

ordinary purposes, he cannot sustain his burden of proof at

trial. Accordingly, defendant's motion for summary judgment is

granted as to the claimed breach of warranty of merchantability.

Conclusion

For the reasons set forth herein, defendant's motion for

summary judgment (document 15) is granted in its entirety.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 5, 1999

cc: Timothy Willard Charles P. Bauer, Esg.

12