Coleman v. Ford Motor Company
///ORDER denying 18 Motion for Partial Summary Judgment (Liability); granting 21 Motion for Summary Judgment. The oral arguments scheduled for October 11, 2012 are CANCELLED. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Civil No. 11-cv-359-JL
Ford Motor Company
Richard Coleman, proceeding pro se and in forma pauperis,
brings this products liability action against Ford Motor Company.
He seeks to recover for injuries he claims to have suffered when
the jack he used to elevate the front end of his Mercury Tracer
“collapsed,” causing the car to fall onto his right arm.
initial review of the complaint, see L.R. 4.3(d)(1)(B),
Magistrate Judge McCafferty recommended that Coleman be allowed
to proceed on claims of strict products liability and failure to
Order of Aug. 19, 2011.
This court has jurisdiction over
this action between Coleman, a New Hampshire citizen, and Ford, a
Delaware corporation with its principal place of business in
Michigan, under 28 U.S.C. § 1332(a)(1) (diversity).
Both parties have moved for summary judgment.
Civ. P. 56.
See Fed. R.
Coleman seeks partial summary judgment as to
liability, while Ford seeks summary judgment as to all of
Although more than three months have passed
since Ford filed its motion for summary judgment, Coleman has not
filed any response.
Coleman’s own motion for summary judgment,
which he filed nearly two months before Ford’s, merely reiterates
the allegations of his complaint, without referring to any record
So it is neither a properly supported motion for
summary judgment nor an effective opposition to Ford’s motion for
summary judgment under Rule 56, which requires record support for
a party’s assertions “that a fact cannot be or is genuinely
Fed. R. Civ. P. 56(c)(1).
Even in the absence of any opposition to a summary judgment
motion, however, the court “must assure itself that the moving
party’s submission shows 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.”
NEPSK, Inc. v. Town of Houlton, 283 F.3d 1,
7 (1st Cir. 2002) (quotation marks omitted).
in support of its motion readily make that showing.
particular, they show that Coleman has no proof of at least one
essential element of each of his claims, entitling Ford to
See Celotex Corp. v. Catrett, 477 U.S. 317,
To prevail on a claim of strict products liability, as Judge
McCafferty explained in her report and recommendation, a
plaintiff must prove that (1) the defendant sold the product in a
defective condition unreasonably dangerous to the user, (2) the
defendant is engaged in the business of selling such a product,
and (3) the product was expected to and did reach the user
without substantial change in the condition in which it was sold.
Order of Aug. 19, 2011, at 7 (citing Brochu v. Ortho Pharm.
Corp., 642 F.2d 652, 654 (1st Cir. 1981) (quoting Restatement
(Second) of Torts § 402A (1967))).
Here, as Ford points out,
Coleman has no evidence that the jack reached him without
substantial change in the condition in which it was sold.
Coleman bought the Tracer, a 1993 model, at a public auto auction
in 2010, and admitted at his deposition that he did not know, and
has no information about, whether the jack that originally came
with the car had ever been replaced at any time in the
intervening 17 years.
Coleman testified that he believed the jack that collapsed
in his accident had never been used previously based on “the
appearance of the jack and the way it was still in the holster,”
which “seemed new.”
But it does not follow that this jack was
the same one that Ford initially provided with the Tracer,
replaced or, for that matter, that the jack that collapsed had
ever been sold by Ford, as opposed to someone else.
that aside, however, Coleman’s description of the contents of the
holster is inconsistent with the diagram set forth in the owner’s
manual for the 1993 Tracer.
Coleman testified that, when he
removed the jack from the trunk just prior to the accident, “the
handle was also in the packet in the holster.”
But the owner’s
manual shows that the jack handle was not originally placed in
any “holster,” but affixed to the floor of the trunk separate
from the jack.
Indeed, based on the diagram at least, the handle
seems much too long to fit under the access panel that covers the
jack and “tool bag,” and even the jack itself is placed outside
of that bag.
Moreover, while it might well be possible to
determine the provenance and the condition of the jack involved
in Coleman’s accident by examining the jack itself, that cannot
Coleman sold the vehicle--and the jack--to another
person after the accident, without taking any pictures, and has
never heard again from the buyer despite sending a letter
offering to re-purchase the jack after he filed this lawsuit.
“The burden of proof that the product was in a defective
condition at the time that it left the hands of the particular
seller is upon the injured plaintiff; and unless evidence can be
produced which will support the conclusion that it was then
defective, the burden is not sustained.”
Torts § 402A cmt. g (1965).
Restatement (Second) of
Here, as just discussed, there is no
evidence that the jack reached Coleman--some seventeen years
after Ford originally sold the vehicle--without substantial
change in its condition or, for that matter, that Ford even sold
the jack in the first place.
Because Coleman cannot prove this
essential element of his strict liability claim, Ford is entitled
to summary judgment.
See Brown v. Husky Injection Molding Sys.,
Inc., 751 F. Supp. 2d 298, 303-04 (D. Mass. 2010) (granting
summary judgment to defendant on strict products liability claim
where plaintiff could not rebut manufacturer’s evidence that the
condition of the product at the time of delivery differed from
its condition at the time of the accident or to “account for the
condition” of the product during the lengthy intervening period).
Ford is also entitled to summary judgment on Coleman’s
A decal affixed to the jack supplied with
a 1993 Mercury Tracer (assuming, despite the evidentiary gap just
discussed, that Coleman’s accident even involved that jack)
contained instructions for using it.
These included (1) to set
the parking brake, (2) to raise the vehicle until the tire was no
more than 1.2 inches off the ground, and (3) “caution:
get under vehicle when supported by jack alone.”
The decal also
referred to the “detailed jacking instructions” set forth in the
Those included a warning that “when one front
wheel is lifted off the ground, . . . the park position . . .
will [not] prevent the vehicle from moving and possibly slipping
off the jack,” so that, “to prevent the car from moving while
changing a tire, always set the parking brake fully and always
block (in both directions) the wheel that is diagonally opposite
the wheel being changed.”
The owner’s manual also warned:
To lessen the risk of personal injury, do not put any
part of your body under the vehicle . . . . The jack
is only for changing the tire in emergencies. Never
raise your vehicle by using a bumper jack. The . . .
jack could slip and you could be injured.
Coleman’s accident occurred after he used the jack to
elevate the front passenger wheel of the car so that he could
remove two bolts that, according to a mechanic, he needed to
remove to fix the calipers.
Without first setting the parking
brake, and after blocking the rear driver’s side tire in just one
direction, Coleman used the jack to raise the front passenger’s
side tire 3-6 inches off the ground, reached under the car with
his arm and shoulder, and reached up with a socket wrench to try
to turn one of the bolts.
As he did so, “the jack collapsed
inward,” in his words, which he explained as “the jack falling to
the inside of the vehicle” and onto his arm.
After the accident,
Coleman examined the jack, and found that it was in the same open
position it had been before the accident, and was not bent,
broken, or even scratched.
Indeed, it was in good enough shape
that Coleman saw fit to sell it to someone else without warning
that person about what had happened.
Based on Coleman’s account, a Ford design engineer who has
been designated as an expert witness in this matter opines that
the vehicle rolled off the jack and onto Coleman’s arm due to the
upward force applied by his wrench, rather than any failure of
In other words, the accident happened just as Ford had
warned it could:
the jack slipped after Coleman had used it to
raise the vehicle to make a repair, rather than to change a tire,
and did so without setting the parking brake or blocking the
diagonally opposite tire in both directions, and by reaching part
of his body under the vehicle.
Coleman has not come forward with
evidence that the accident happened for any other reason.
To recover on his failure-to-warn claim, Coleman must show,
among other things, that the accident would not have happened had
Ford adequately warned him of the danger of using the jack.
Brochu, 642 F.2d at 659; Bartlett v. Mut. Pharm. Co., 731 F.
Supp. 2d 135, 145-46 (D.N.H. 2010).
He cannot make that showing
here, where Ford warned him of the danger of using (or misusing)
the jack in a certain way, he proceeded to use the jack in that
way, and the very danger of which Ford had warned came to pass,
causing his injury.
Ford is entitled to summary judgment on the
For the foregoing reasons, Coleman’s motion for summary
judgment (document no. 18) is DENIED, and Ford’s motion for
summary judgment (document no. 21) is GRANTED.
arguments scheduled for October 11, 2012 are CANCELLED.
clerk shall enter judgment accordingly and close the case.
Joseph N. Laplante
United States District Judge
October 5, 2012
Richard Coleman, pro se
James M. Campbell, Esq.
Trevor J. Keenan, Esq.