Rodgers v. AWB Industries Inc et al

Filing 75

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 1/26/2017. (JLC)

FILED
2017 Jan-26 PM 04:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
GLORIA RODGERS, as Personal
Representative of the Estate of
JOHN RODGERS, Deceased,
Plaintiff,
v.
AWB INDUSTRIES, INC., d/b/a
AIRCRAFT TOOL SUPPLY
COMPANY, a corporation,
Defendant.

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) Case No.: 1:14-CV-605-VEH
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MEMORANDUM OPINION
INTRODUCTION
This diversity of citizenship action was brought in 2014 by the Plaintiff,
Gloria Rodgers as Personal Representative of the Estate of John Rodgers,
Deceased, against AWB Industries, Inc., d/b/a/ as Aircraft Tool Supply Company
(hereinafter “AWB” and/or “Defendant”) and McFarlane Aviation Inc.
(hereinafter “McFarlane”).1 After summary judgment motions had been filed by

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The lawsuit was initially filed on April 2, 2014, and was assigned to another judge.
Plaintiff initially sued AWB and McFarlane. On July 18, 2014, she amended her complaint to
add claims against Robert Baines. (Doc. 13). On September 18, 2014, she voluntarily dismissed
Mr. Baines, pro tanto. The case was reassigned to me on October 7, 2014. (Doc. 22). I then
entered an order of pro tanto dismissal of Mr. Baines. (Doc. 23).

AWB (doc. 45) and McFarlane (doc. 47), and after full briefing on those motions
(docs. 46, 48-52), the Plaintiff and McFarlane entered into a pro tanto settlement
agreement. On July 21, 2016, this court entered an Order of Pro Tanto Dismissal
dismissing all of Plaintiff’s claims against McFarlane. (Order, doc. 63).
Accordingly, AWB is the sole remaining defendant in this action. However, the
parties made reference to each other’s summary judgment filings, and the court
will also do so in this opinion.
The court held a hearing on AWB’s motion on August 4, 2016. Subsequent
to that hearing, the parties filed supplemental briefing. (Docs. 66-73).
This action arose from the tragic accidental death of John Rodgers, a selfemployed certified/licensed aircraft mechanic, who died after being struck by the
propeller of an airplane on which he was working. All of Plaintiff’s claims against
Defendant (and against McFarlane, while that entity was a party), are based on
Alabama law. Those claims are: Alabama Extended Manufacturer’s Liability
Doctrine (Count I); Breach of Warranty (Count II); and Negligence/Wantoness
(Count III). The prima facie elements of each claim include harm proximately
caused by the alleged breach.2 “Proximate cause is an act or omission that in a
natural and continuous sequence, unbroken by any new independent causes,
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See Analysis, infra.
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produces the injury and without which the injury would not have occurred. An
injury may proximately result from concurring causes; however, it is still
necessary that the plaintiff prove that the defendant's negligence caused the
injury.” Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994) (citations omitted). As
explained below, because Plaintiff has failed to point out evidence from which a
reasonable jury could find that AWB did any act, or failed to do any act, which
proximately caused the airplane propeller to strike John Rodgers, summary
judgment is due to be entered in AWB’s favor as to all of Plaintiff’s claims against
it.
SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is proper if
there is no genuine dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper 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 a judgment as a matter of law.”)
(internal quotation marks and citation omitted). The party requesting summary
judgment always bears the initial responsibility of informing the court of the basis
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for its motion and identifying those portions of the pleadings or filings that it
believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323. Once the moving party has met its burden, Rule 56(c) requires the
non-moving party to go beyond the pleadings in answering the movant.3 Id. at 324.
By its own affidavits – or by the depositions, answers to interrogatories, and
admissions on file – it must designate specific facts showing that there is a
genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and
which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
All reasonable doubts about the facts and all justifiable inferences are resolved in
favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts
that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is
genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. If the evidence presented by the non-movant to rebut the
moving party’s evidence is merely colorable, or is not significantly probative,
summary judgment may still be granted. Id. at 249.

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When Celotex was decided FED. R. CIV. P. 56(e) encompassed this express requirement,
but now this concept is covered by the language provided for under FED. R. CIV. P. 56(c).
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How the movant may satisfy its initial evidentiary burden depends on
whether that party bears the burden of proof on the given legal issues at trial.
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant
bears the burden of proof on the given issue or issues at trial, then it can only meet
its burden on summary judgment by presenting affirmative evidence showing the
absence of a genuine issue of material fact – that is, facts that would entitle it to a
directed verdict if not controverted at trial. Id. (citation omitted). Once the moving
party makes such an affirmative showing, the burden shifts to the non-moving
party to produce “significant, probative evidence demonstrating the existence of a
triable issue of fact.” Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it
can satisfy its initial burden on summary judgment in either of two ways. Id. at
1115-16. First, the movant may simply show that there is an absence of evidence
to support the non-movant’s case on the particular issue at hand. Id. at 1116. In
such an instance, the non-movant must rebut by either (1) showing that the record
in fact contains supporting evidence sufficient to withstand a directed verdict
motion, or (2) proffering evidence sufficient to withstand a directed verdict motion
at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When
responding, the non-movant may no longer rest on mere allegations; instead, it
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must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358
(1996). The second method a movant in this position may use to discharge its
burden is to provide affirmative evidence demonstrating that the non-moving party
will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this
occurs, the non-movant must rebut by offering evidence sufficient to withstand a
directed verdict at trial on the material fact sought to be negated. Id.
UNDISPUTED MATERIAL FACTS4
This case arises from an accident that occurred on July 19, 2012, in an
airplane hangar at the Anniston Regional Airport. John Rodgers was a certified,
licensed aircraft mechanic who leased space from Anniston Aviation to conduct
his business called Cheaha Aircraft Works. His business was separate from that of
Anniston Aviation. That is, he was self-employed.
Anniston Aviation is a privately owned company separate from Anniston
Regional Airport. Anniston Regional Airport is owned by the city. Anniston

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Keeping in mind that, when deciding a motion for summary judgment, the court must
view the evidence and all factual inferences in the light most favorable to the party opposing the
motion, the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel
Consumer Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection
with summary judgment, a court must review all facts and inferences in a light most favorable to
the non-moving party). This statement does not represent actual findings of fact. See In re
Celotex Corp., 487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the court has provided this
statement simply to place the court’s legal analysis in the context of this particular case or
controversy.
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Aviation leases the buildings and land from Anniston Regional Airport to conduct
business as Anniston Aviation, primarily selling fuel to airplanes and renting
hangars for airplane storage and maintenance. Scott Wallace (“Wallace”) is the
manager at Anniston Aviation. Rodney Findley (“Findley”) was an employee of
Anniston Aviation beginning in 2006 and took care of fueling up planes, book
work and accounting. Both Wallace and Findley were present at the time of the
incident. However, neither one of them (nor anyone else) saw the incident occur.
John Rodgers owned a model 2E-M Differential Pressure Tester (hereinafter
the “Tester”) that was manufactured by AWB. The Tester allows a mechanic, such
as John Rodgers, to test each cylinder on the engine of an airplane to make sure
the cylinder’s compression is within the manufacturer’s limits or specifications.
The Tester has a valve that stops air from flowing through it until the mechanic
needs air to be applied to the engine cylinder.
When used as intended by AWB, the aircraft mechanic hooks the Tester to
the engine with a sparkplug hole adapter or with an extension tube like John
Rodgers had on the day of the incident. The mechanic attaches a compressed air
line to the Tester by means of a standard fitting. The Tester’s valve, when in the
off position, keeps the air from entering the engine cylinder until the mechanic is
ready. When the mechanic is ready, he turns the valve from off to on, and air
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enters the engine cylinder. The mechanic can then check the cylinder’s air pressure
leakdown rate against its built-in calibrated standard to instantly determine if the
engine’s cylinder leakage is within the manufacturer’s limits.
John Rodgers was testing the cylinders on an airplane on the day of his
accident. Among the tools he owned and had available to test the cylinders were
the Tester and an extension tube manufactured by McFarlane (hereinafter the
“Extender”).
It is undisputed that John Rodgers was a skilled and knowledgeable airplane
mechanic. Among other things, John Rodgers earned a Federal Aviation
Administration (“FAA”) aircraft mechanic’s certificate, which included both a
Airframe and Powerplant rating (“A & P”). He also received an Inspection
Authorization (“IA”). An IA allows a certified mechanic to conduct annual
inspections on aircraft and return aircraft to service after annual inspections, major
alterations and after major repairs by signing the official FAA logbook for the
maintenance record of that aircraft.
The FAA publishes manuals for aircraft mechanics like John Rodgers. Its
“Aviation Maintenance Technician Handbook – Powerplant, Vol. I”,
FAA-H-8083-32 (2012), describes the purpose of the Tester as follows:
The differential pressure tester checks the compression of
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aircraft engines by measuring the leakage through the cylinders.
The design of this compression tester is such that minute valve
leakages can be detected, making possible the replacement of
cylinders where valve burning is starting. The operation of the
compression tester is based on the principle that, for any given
airflow through a fixed orifice, a constant pressure drop across
the orifice results. As the airflow and pressure changes,
pressure varies accordingly in the same direction. If air is
supplied under pressure to the cylinder with both intake and
exhaust valves closed, the amount of air that leaks by the valves
or piston rings indicates their condition; the perfect cylinder
would have no leakage. The differential pressure tester requires
the application of air pressure to the cylinder being tested with
the piston at top-center compression stroke.
(AWB MSJ Narrative Statement of Undisputed Facts, Doc. 45-1, facts 1-37).
On July 19, 2012, John Rodgers was using the Tester to test the cylinders of
an airplane engine. He was also using an Extender. No one was watching John
Rodgers perform the test and no one saw the accident, but it is undisputed that
John Rodgers was hit in the left side of his head and the left side of his chest by
the airplane propeller while performing the test on one of the two left cylinders of
the airplane (he had finished testing both right cylinders — ## 1 and 3 — without
incident), and that he died — on July 21, 2012 — from that blow.
The manner in which John Rodgers performed the final test is not known.
For example, it is not known whether or not John Rodgers rotated the propeller to
the “top dead center” for the left cylinder (which he should have done). However,

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it is undisputed that, after he completed testing the two right cylinders, he
disconnected the air hose from the Tester and pushed the air hose under the
airplane instead of pushing it over the engine. It is further undisputed that, at the
time of the accident, he had already screwed the [Extender] into the sparkplug hole
on the left front cylinder” — the # 2 cylinder. It is also undisputed that the airplane
propeller suddenly rotated around and struck John Rodgers in the head and chest
and that he subsequently died from those injuries.
After the accident, the compressed air hose was found on the floor of the
hanger, not hooked to the airplane, or to the Extender, or to the Tester. In fact, the
Tester was found lying on top of the engine and was not hooked to the engine in
any way.
ANALYSIS
As explained below, a necessary element of each of Plaintiff’s claims
against AWB is that the Tester proximately resulted in the injury to John Rodgers.
However, there is simply no evidence that John Rodgers was — or was not — in
fact using the Tester or intending to use the Tester at the time the accident
happened. This lack of evidence ultimately is fatal to all of the Plaintiff’s claims
against Defendant.

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Alabama Extended Manufacturer’s Liability Doctrine (Count I)
The Alabama Supreme Court has expressly modeled its Alabama Extended
Manufacturer’s Doctrine (“AEMLD”) on § 402A of the Second Restatement of
Torts and the landmark line of common-law cases beginning with Judge Cardozo's
MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), that allow
consumer tort recovery without direct proof of negligence in the manufacturing
process. See Atkins v. American Motors Corp., 335 So. 2d 134, 137-38 (Ala.
1976); see also RESTATEMENT OF THE LAW, THIRD, Torts: Products Liability, § 3,
at 111. To prevail under the AEMLD, a plaintiff must present evidence that the
defendant “put[] on the market a product which is not reasonably safe, and the
plaintiff is injured as a result of a contemplated use of that product.” Atkins, 335
So. 2d at 140 (emphasis supplied); see also Taylor v. General Motors Corp., 707
So. 2d 198, 201 (Ala. 1997).
Plaintiff’s claim under the AEMLD is that John Rodgers was injured by the
Tester’s defective design in that John Rodgers thought he was connecting the
Tester — rather than the Extender (which was already connected to the airplane
engine cylinder) — to the air compressor hose, and that, if the Tester had been
designed differently, he would not have been able to make that mistake. However,
no one knows what John Rodgers was thinking when he connected one end of the
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Extender to the airplane cylinder and the other end to the air compressor hose. A
jury would have to speculate that, despite his years of experience, he confused the
Extender with the Tester. Further, it is undisputed that, if the Extender or the air
compressor hose had been manufactured so that they were not compatible with
each other, the accident could not have occurred. Therefore, Plaintiff has failed to
present evidence that any aspect of the design of the Tester or the warnings
accompanying it proximately caused the accident that injured John Rodgers.5
Accordingly, summary judgment is due to be granted as to Plaintiff’s claim in
Count I.
Breach of Warranty (Count II)
In Count II of his Complaint, Plaintiff asserts a claim for breach of an
express and/or implied warranty of merchantability. In either event, Plaintiff is
asserting a claim for breach of contract. See Ex parte Miller, 693 So. 2d 1372,
(Ala. 1997) (express warranties are treated like any other type of contract and
interpreted according to general contract principles). “To prevail on a breach of
contract claim, a plaintiff is required to present evidence in support of the

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Plaintiff has provided expert opinions to support her AEMLD claim. However, those
expert opinions cannot establish proximate causation here, because they are based on
speculation. FED. R. CIV. P. 702 allows expert opinions only if they are “based on sufficient facts
or data.” Id. (emphasis supplied).
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following elements of his claim: ... (4) damage sustained as a result of the
defendants’ nonperformance.” Southern Medical Health Systems, Inc. v. Vaughn,
669 So. 2d 98, 99 (Ala. 1995) (emphasis supplied). “To establish [a] claim of
breach of the implied warranty of merchantability, [a plaintiff] must ‘prove the
existence of the implied warranty, a breach of that warranty, and damages
proximately resulting from that breach.’ ” Spain v. Brown & Williamson Tobacco
Corp., 872 So. 2d 101, 110 (Ala. 2003) (quoting Tucker v. General Motors Corp.,
769 So. 2d 895, 901 (Ala. Civ. App. 1998) (quoting Barrington Corp. v. Patrick
Lumber Co., 447 So. 2d 785, 787 (Ala. Civ. App. 1984) (quoting, in turn, Storey v.
Day Heating and Air Conditioning Co., 56 Ala. App. 81, 83, 319 So. 2d 279, 280
(1975)) (alterations and emphasis supplied).
Because, as explained in analyzing Plaintiff’s AEMLD claim, Plaintiff has
failed to present evidence that any aspect of the Tester proximately caused the
accident that injured John Rodgers, summary judgment is due to be granted as to
Plaintiff’s claim in Count II.
Negligence/Wantoness (Count III)
Plaintiff’s third claim is made under theories of negligence and/or
wantonness. As with an AEMLD claim, “[t]he element of proximate cause is
essential to the plaintiff's prima facie case of negligent failure to adequately warn.”
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Gurley v. Am. Honda Motor Co., Inc., 505 So. 2d 358, 361 (Ala. 1987). Thus,
“[u]nder both the AEMLD and the negligence theory, [the plaintiff] has the burden
of proving proximate causation.” Clarke Indus., Inc. v. Home Indem. Co., 591 So.
2d 458, 461 (Ala. 1991). To establish a claim of wantonness, “the plaintiff must
prove that the defendant, with reckless indifference to the consequences,
consciously and intentionally did some wrongful act or omitted some known duty.
To be actionable, that act or omission must proximately cause the injury of which
the plaintiff complains.” Norfolk S. Ry. Co. v. Johnson, 75 So. 3d 624, 646 (Ala.
2011), as modified on denial of reh'g (July 8, 2011) (emphasis supplied) (internal
citation omitted). “Proximate cause is an essential element of both negligence
claims and wantonness claims.” Id. (internal citation omitted).
Because, as explained in analyzing Plaintiff’s AEMLD claim, Plaintiff has
failed to present evidence that any aspect of the Tester proximately caused the
accident that injured John Rodgers, summary judgment is due to be granted as to
Plaintiff’s claim in Count III.
CONCLUSION
While the accident was tragic, Plaintiff has the burden to bring forward, in
opposing summary judgment, substantial evidence to support her claims against
AWB. Proximate causation is a necessary element of each of those claims.
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Plaintiff has failed to point to any admissible evidence that shows that any aspect
of the Tester proximately caused the accident. Speculation cannot be allowed to
substitute for evidence. Summary judgment will be granted to AWB by separate
order.
DONE and ORDERED this the 26th day of January, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

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