Collins v . Tool Exchange, et a l . CV-01-302-M 10/16/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Thomas A . Collins, J r . and Diane M . Collins, Plaintiffs

v. Civil N o . 01-302-M Opinion N o .

The Tool Exchange LLC and Black & Decker, Inc., Defendants

O R D E R

Plaintiffs have sued in eight counts to recover damages

suffered as a result of injuries Thomas A . Collins, J r .

(“Collins”) sustained while operating a used Black & Decker miter

saw he purchased from The Tool Exchange LLC (“The Tool

Exchange”). Before the court are: (1) The Tool Exchange’s motion

for partial summary judgment as to the failure-to-warn claims in

Counts IV and V I ; and (2) Black & Decker’s motion for summary

judgment on Counts I , I I I , and V . Plaintiffs object. For the

reasons given below, both motions for summary judgment are

necessarily denied. Summary judgment is appropriate when the record reveals “no

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

is entitled to a judgment as a matter of law.” FED. R . CIV. P .

56(c). “To determine whether these criteria have been met, a

court must pierce the boilerplate of the pleadings and carefully

review the parties’ submissions to ascertain whether they reveal

a trialworthy issue as to any material fact.” Perez v . Volvo Car

Corp.,

(1st Cir. 2001) (citing Grant’s Dairy-

Me., L L C v . Comm’r of M e . Dep’t of Agric., Food & Rural Res.,

, 14 (1st Cir. 2000)). In defending against a motion for

summary judgment, “[t]he non-movant may not rely on allegations

in its pleadings, but must set forth specific facts indicating a

genuine issue for trial.” Geffon v . Micrion Corp.,

9 ,

34 (1st Cir. 2001) (citing Lucia v . Prospect S t . High Income

Portfolio, Inc.,

7 0 , 174 (1st Cir. 1994)). When ruling

upon a party’s motion for summary judgment, the court must

“scrutinize the summary judgment record ‘in the light most

hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party’s favor.’” Navarro, 261 F.3d

at 94 (quoting Griggs-Ryan v . Smith,

1 2 , 115 (1st Cir.

1990)).

2 Here, several genuine issues of material fact preclude

summary judgment for defendants. The court begins with

plaintiffs’ failure-to-warn claims, against both defendants, and

concludes with plaintiffs’ strict products liability claim,

against Black & Decker only, for design defects other than lack

of an adequate warning.

Defendants move for summary judgment on the failure-to-warn

claims on the grounds that: (1) they had no duty to warn Collins

of the dangers associated with using a miter saw without a blade

guard because those dangers were obvious; and (2) even if they

had, and breached, a duty to warn Collins, their breach of duty

did not cause Collins’s injuries, because his history of saw use

demonstrates that he would have used the miter saw without a

guard even if he had been warned not t o . Both the duty to warn

and causation present disputed issues of material fact that

cannot be resolved in defendants’ favor on a summary judgment

record.

All parties agree that manufacturers and sellers are not

obligated to warn consumers against obvious dangers. See

3 Cheshire Med. Ctr. v . W.R. Grace & Co.,

6 4 , 567

(D.N.H. 1994) (citing McLaughlin v . Sears, Roebuck & Co.,

(1971)). And, “obviousness of the harm [is a ]

question[] of fact to be decided by the jury.” Price v . BIC

Corp.,

(1997) (citing Thibault v . Sears,

Roebuck & Co.,

0 2 , 809 (1978)). Defendants argue,

principally by analogy to other cases, that the dangers

associated with the spinning blade of a power saw are obvious, as

a matter of law. Plaintiffs counter that the danger associated

with operating this particular saw without a blade guard was not

obvious because, with the blade guard removed, it is very

difficult to detect that the saw ever had a blade guard. In

support of that proposition, plaintiffs offer Collins’s

affidavit, in which he described his inability to detect the

points of attachment that hold a blade guard in place on this

particular model of miter saw. By virtue of Collins’s affidavit,

plaintiffs have met their burden of creating a fact question as

to the obviousness of the danger of operating the saw in this

case without a blade guard.

4 Even assuming that the risk posed by the miter saw on which

Collins injured himself was obvious, causation is also at issue.

Defendants have provided powerful evidence – in the form of

Collins’s history of continuing to use unguarded saws, even after

having been injured by them – that no warning would have

prevented Collins from using his Black & Decker miter saw without

a blade guard. However, at the summary judgment stage, there is

no avoiding Collins’s statement, in his affidavit, that he would

have used a blade guard if he had been warned that it was

dangerous to operate the saw without one. While Collins will

have a difficult time convincing a reasonable jury that he would

have heeded a warning if one were printed on the housing of his

saw, or had been given an verbal warning by The Tool Exchange, it

is not for the court to say that Collins’s prospective trial

testimony i s , as a matter of law, beyond belief. Thus,

plaintiffs have minimally met their burden of creating a triable

issue of fact related to causation.

As for the remaining design defect claims in strict products

liability – those not based upon a failure to warn1 – Black &

1 In support of his defective design theory, Collins identifies the following design defects: (1) the blade guard was

5 Decker moves for summary judgment on the grounds that: (1)

plaintiffs’ expert has not opined that the miter saw was

defectively designed; and (2) Collins’s injury was caused by his

own misconduct in operating the saw rather than by a design

defect.

Plaintiffs’ expert disclosure may not be as comprehensive as

it could b e , but that disclosure, in combination with the

affidavit from their expert, included with their objection to

summary judgment, provides adequate evidence from which a

reasonable jury could conclude that, independent of its lack of

warnings, Collins’s miter saw had a design that “created a

defective condition unreasonably dangerous to the user.” Vautour

v . Body Masters Sports Indus., Inc.,

5 0 , 153 (2001)

(citing Chellman v . Saab-Scania A B ,

3 , 77 (1993)).

Black & Decker argues that Collins cannot recover for his injury

because he consciously put himself in harm’s way by using a

product he knew to be dangerous. However, as with the causation

weakly attached to the housing of the saw and was, therefore, easily removable; (2) the saw had no safety switches to stop the blade from spinning after its trigger was released; and (3) the saw blade remained in motion for many seconds after the trigger was released.

6 element in the failure-to-warn claim, plaintiffs have offered

evidence, via Collins’s affidavit, sufficient to create a

material issue of fact and survive summary judgment.

Specifically, Collins states that he had no idea the saw was

dangerous without a blade guard, and had no idea that a blade

guard could even be attached to his saw. Because the court

cannot judge Collins’s credibility or weigh the evidence he

proposes to offer, defendants are not entitled to summary

judgment on their “user misconduct” defense.

For the reasons given above, plaintiffs have produced enough

evidence to survive summary judgment on their failure-to-warn and

design defect claims. The obviousness of the dangers posed by a

miter saw without a blade guard, and the cause of Collins’s

injury, present triable fact questions. Accordingly, The Tool

Exchange’s motion for partial summary judgment (document n o . 21)

and Black & Decker’s motion for summary judgment (document n o .

22) are both necessarily denied.

7 SO ORDERED.

Steven J. McAuliffe United States District Judge

October 1 5 , 2002

cc: Edwinna C . Vanderzanden, Esq. William A . Mulvey, Jr., Esq. Cynthia L . Fallon, Esq.

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