Hernandez et al v. Altec Environmental Products, LLC et al
Filing
224
ORDER AND OPINION granting in part and denying in part 154 Motion for Summary Judgment. Signed by Judge Kenneth A. Marra on 10/1/2012. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-80532-CIV-MARRA
GUADALUPE HERNANDEZ and
MARLENE JERONIMO, his wife,
Plaintiffs,
vs.
ALTEC ENVIRONMENTAL PRODUCTS, LLC
and ALTEC INDUSTRIES, INC., and
ASPLUNDH TREE EXPERT CO.,
Defendants.
___________________________________/
ALTEC ENVIRONMENTAL PRODUCTS, LLC
and ALTEC INDUSTRIES, INC.,
Cross-Plaintiffs,
vs.
ASPLUNDH TREE EXPERT CO.,
Cross-Defendant.
___________________________________/
ORDER AND OPINION ON MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Altec Environmental Products, LLC and
Altec Industries, Inc.’s Motion for Summary Judgment [DE 154]. The Court has
carefully considered the motion, response, reply, oral argument of counsel, and is
otherwise fully advised in the premises.
On November 24, 2009, Guadalupe Hernandez (“Hernandez”), a Spanish
speaking ground worker for Asplundh Tree Expert Co. (“Asplundh”), had an accident
whereby a substantial portion of his right hand was severed. Hernandez was injured
when he was in the process of clearing debris underneath a wood chipper which was
being operated without the guard covering the in-feed roller. Plaintiffs’ Third
Amended Complaint (“Compl.”) ¶¶ 4, 8, 9. Hernandez and his wife have brought
claims against Altec Environmental Products, LLC (“AEP”) and Altec Industries, Inc.
(“Altec Industries”) based on strict product liability and negligence with respect to the
design of the wood chipper, as well as claims of defective warnings and instructions
and negligence in providing maintenance and operating instructions. AEP and Altec
Industries move for complete summary judgment.
Undisputed Facts1
1.
The wood chipper subject to this lawsuit is a CFD 1217 hand-fed brush chipper
used to reduce wood waste or wood trimmings to chips. Brian Player 8/4/11
Depo. 8.
2.
Prior to the accident, Hernandez had 11 years experience working for Asplundh,
with four years working with wood chippers. Hernandez 6/3/11 Depo. 28-29.
3.
The subject wood chipper was designed with eight ½" bolts attaching a guard
enclosure that covered the bottom of the housing for the in-feed roller (the
1
Plaintiffs have made it very difficult for the Court to create this list because, in
some instances, they have misstated the record in their Statement of Facts (DE 185),
and they have failed to cite the record in the body of their Memorandum in Opposition
to Motion for Summary Judgment (DE 184). In addition, Plaintiffs have ignored the Local
Rules, which require, in pertinent part, that “statements of material facts submitted in
opposition to a motion for summary judgment shall correspond with the order and with
the paragraph numbering scheme used by the movant . . . Additional facts which the
party opposing summary judgment contends are material shall be numbered and placed
at the end of the opposing party’s statement of material facts . . .” Local Rule 56.1.
Defendants, in turn, offer little aid by not responding to any of Plaintiffs’ numbered
statements, but instead, simply “dispute and deny” all 50 paragraphs. DE 190 at 2.
Page 2 of 22
safety cover). Brian Player Depo. 127. The in-feed rollers function to feed
brush into the chipping mechanism. Player 8/4/11 Depo. 16.
4.
On the day of the accident, there was no safety cover on the subject wood
chipper. Hernandez 5/11/11 Depo. 64; Hernandez 6/3/11 Depo. 38.
5.
Hernandez was aware that Asplundh had removed the safety cover on the
chipper approximately 10 weeks prior to the accident. Hernandez 5/11/11
Depo. 64, 114; Labbe Depo. 8-9.
6.
Generally Hernandez could not see whether the safety guard was on or off, but
he knew when it was off because debris would then fall to the ground.
Hernandez 5/11/11 Depo. 64, 77, 116; Hernandez 6/3/11 Depo. 38. When the
safety guard was off, he could see a “small part” of the chipper’s internal
components. Hernandez 6/3/11 Depo. 69.
7.
On November 24, 2009, the day of the accident, Hernandez saw debris under
the chipper, and he also noticed that the cover had been removed and he saw
moving parts of the wood chipper. Hernandez 5/11/11 Depo. 77, 91; Hernandez
6/3/11 Depo. 38. What he saw with the cover removed did not appear
dangerous to him. Hernandez 6/3/11 Depo. 67-68.
8.
Although Hernandez understood that moving parts can be dangerous, and that it
would be unsafe to put his hand into moving parts of the wood chipper, the job
he was doing required him to sweep debris underneath the exposed lower infeed roller. Hernandez 5/11/11 Depo. 26, 77, 92, 113; Hernandez 6/3/11 Depo.
38.
Page 3 of 22
9.
After chipping a pile of wood, Hernandez squatted down to clean debris
underneath the chipper when the accident occurred. Hernandez 5/11/11 Depo.
100, 102.
10.
Hernandez was shown how to clear debris with his hands from underneath the
chipper by his supervisor, Jean Labbe. Hernandez 5/11/11 Depo. 84; Hernandez
6/3/11 Depo. 40-43.
11.
At the time he was reaching under the chipper to remove the debris, Hernandez
was not looking to see where his hand was and instead, was looking to the side
of the chipper machine. Hernandez 5/11/11 Depo. 102-103.
12.
Hernandez knew that the safety cover had been removed from the wood
chipper at the time of the accident, but he was not thinking about that when he
reached under the chipper to remove debris. Hernandez 5/11/11 Depo. 103;
Hernandez 6/3/11 Depo. 68-69.
13.
Hernandez did not know the function of the safety cover and only learned after
the incident that it was for protecting people. Hernandez 6/3/11 Depo. 51, 69,
94-95. Hernandez agrees that had the safety cover been in place, the accident
would not have occurred. Hernandez 5/11/11 Depo. 131.
14.
Asplundh took possession of the wood chipper in early to mid-2008 to commence
the demonstration (“demo”) phase prior to purchasing it. Asplundh field tested
the unit for a number of months under the supervision of its general foreman
Wilson Gonzalez, who utilized his ground crews. During the demo phase, the
wood chipper jammed a number of times because of build up and clogging of
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debris within the in-feed rollers, including leafy material in between the in-feed
roller and the lower access plate/guard. Wilson Gonzalez (“Gonzalez”) Depo.
70-75, 90-91.
15.
Each time the unit jammed, Gonzalez notified Rory Montello (“Montello”), a
service writer at Altec Industries’ West Palm Beach service facility (where
maintenance, repairs and services were performed for various kinds of
equipment, including wood chippers). Gonzalez Depo. 91; Montello Depo. 5-9.
16.
Altec Industries, Inc., and Altec Environmental Products, LLC are both whollyowned subsidiaries of Altec, Inc., the parent holding company. Chard Depo. 1113; Affidavit of Robert Hunter. Altec, Inc. is not a party to this lawsuit. Altec
Industries and AEP are separate corporations, with facilities at different
locations that produce different lines of products. Affidavit of Bryan Player ¶ 9.
17.
AEP was created in 2006 and manufactures wood chippers. AEP designed,
manufactured and sold the CFD 1217 wood chipper that is the subject of this
law suit. Affidavit of Bryan Player ¶¶ 3, 6; Player Depo. 24, 46-47. Altec
Industries did not participate in, or contribute to, the design or manufacture of
the CFD 1217 wood chipper. Player Aff. ¶ 7.
18.
Bryan Player (“Player”), AEP’s principal engineer, was personally involved in the
design of the subject chipper. Player Aff. ¶5.
19.
AEP prepared and distributed both the Operator’s Manual and the Maintenance
Manual for the subject wood chipper. Player Depo. 21, 27. Player was involved
in the development and design of these manuals. Player Depo. 21, 24.
Page 5 of 22
20.
Prior to working at AEP, Player was employed as a project engineer at Altec
Industries. Player Aff. ¶ 1.
21.
Keith McPherson, a prevention and product safety manager with Altec
Industries, performed a design review and hazards analysis of the wood chipper.
McPherson Depo. 5-12. The purpose of McPherson’s evaluation was to see if
hazards were adequately warned or guarded against. McPherson Depo. 56.
22.
Josh Chard is director of Product and Corporate Safety for Altec, Inc. Chard
Depo. 10.
Summary Judgment Standard
The Court may grant summary judgment "if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). The stringent burden of establishing the
absence of a genuine issue of material fact lies with the moving party. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The Court should not grant summary judgment
unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986), and any doubts in this regard should be resolved against the moving
party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
The moving party bears the initial responsibility of showing the Court, by
reference to the record, that there are no genuine issues of material fact that should
be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). When the non-moving party has the
burden of proof at trial, the moving party may carry its burden at summary judgment
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either by presenting evidence negating an essential element of the non-moving party's
claim or by pointing to specific portions of the record which demonstrate that the
non-moving party cannot meet its burden of proof at trial. Clark, 929 F.2d at 606–608
(explaining Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) and Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)).
After the movant has met its burden under Rule 56(a), the burden of production
shifts and the nonmoving party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Electronic Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). "A party asserting that a fact cannot be
or is genuinely disputed must support the assertion by citing to particular parts of
materials in the record . . . or showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A) and (B).
Essentially, as long as the non-moving party has had an ample opportunity to
conduct discovery, it must come forward with affirmative evidence to support its
claim. Anderson, 477 U.S. at 257. "A mere ‘scintilla' of evidence supporting the
opposing party's position will not suffice; there must be enough of a showing that the
jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th
Cir. 1990). If the evidence advanced by the non-moving party "is merely colorable, or
is not significantly probative, then summary judgment may be granted." Anderson,
477 U.S. 242, 249-50. The moving party bears the initial responsibility of showing the
Court, by reference to the record, that there are no genuine issues of material fact
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that should be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). When the non-moving
party has the burden of proof at trial, the moving party may carry its burden at
summary judgment either by presenting evidence negating an essential element of the
non-moving party's claim or by pointing to specific portions of the record which
demonstrate that the non-moving party cannot meet its burden of proof at trial.
Clark, 929 F.2d at 606–608 (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)
and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).
Discussion
A.
Altec Industries
Movants begin by pointing out that AEP and Altec Industries are distinct legal
entities, that AEP was solely responsible for the design, manufacture, assembly and/or
distribution of the subject wood chipper, and that, as a result, all claims against Altec
Industries are unfounded and should be dismissed. As Movants correctly point out,
Plaintiffs treat AEP and Altec Industries as if they were one and the same by
collectively referring to them as “Altec,” and merely alleging that “Altec” is
responsible for the defective design and negligent warnings. This is improper.
Movants have presented uncontroverted evidence that Altec Industries and AEP are
distinct legal entities and Plaintiffs have offered no evidence to the contrary. Movants
have also presented uncontroverted evidence that the subject wood chipper was solely
designed, manufactured, assembled and distributed by AEP. While Plaintiffs do not
explicitly present any evidence of Altec Industries’ involvement with the manufacture
Page 8 of 22
of the subject wood chipper, they cite to three deposition transcripts as apparent
evidence that certain Altec Industries’ employees were directly involved in the design,
safety review, hazard analysis, development and design of the operator’s manual and
the design, placement and evaluation of warnings for the subject wood chipper. See
Plaintiff’s Statement of Facts, ¶¶ 13-15.
The first employee listed is Brian Player (“Player”). He is AEP’s Principal
Engineer, has only worked through AEP throughout the scope of this project, and is on
record specifically stating that AEP, not Altec Industries, designed, manufactured and
sold the subject wood chipper that is the subject of this lawsuit. Player Affidavit.
Plaintiff has not offered any evidence that contradicts Mr. Player’s testimony on this
issue.
The second employee, Josh Chard (“Chard”), is employed by Altec, Inc., the
non-party parent. Chard Depo. 10. No where in the record does Chard state that
Altec Industries was involved with the subject wood chipper, and Plaintiffs have failed
to cite any record evidence where Chard claims that Altec Industries had any
involvement with wood chippers. In fact, as Altec Inc.’s Director of Product and
Corporate Safety, Chard states that AEP is “the company that was formed to
manufacture environmental products, the wood chipper . . . product line.” Chard
Depo. 12.
Finally, the third employee, Keith McPherson (“McPherson”), is an engineer with
Altec Industries. McPherson Depo. 5. AEP consulted with Altec Industries to evaluate
whether the product’s warnings and stickers on its wood chippers were adequate for
Page 9 of 22
their intended purposes. Id. at 55. McPherson performed a design review and hazards
evaluation analysis of the involved wood chipper and produced a report of his findings
at the request of AEP. Id. at 16, 23. However, no where does McPherson state that
either he, or Altec Industries, participated in the design or manufacture of the subject
wood chippers. In fact, McPherson specifically states that “he was not aware of the
process they went through in coming up with the design. I was not involved in that.”
Id. at 42. He further reiterates that he is not a designer of agricultural equipment.
Id. at 52. He states that he was not involved with the decision to release the subject
wood chipper. Id. at 29. The consultation performed by McPherson consisted solely of
a third party opinion on whether the subject wood chipper contained sufficient
warnings. At no point does McPherson, and by extension, Altec Industries, suggest that
Altec Industries was involved in any of the final decisions regarding the release of the
subject wood chipper, including any aspect of its design, manufacturing, and
ultimately, which warnings were placed on the subject machines. There is no
evidence that McPherson had any final say on any aspect of the subject wood chipper
and AEP, at its own discretion, was free to utilize or disregard the report produced by
McPherson.
“It is aphoristic that a plaintiff cannot prevail on claims for negligence, breach
of warranty or strict liability, unless the plaintiff establishes that the product which
allegedly caused the plaintiff's injury was manufactured or sold by the defendant.”
Liggett Group Inc. v. Engle, 853 So.2d 434, 467 (Fla. App. Dist. Ct. 2003) rev’d on
other grounds, 954 So.2d 1246. Therefore, since Altec Industries did not design,
Page 10 of 22
manufacture, or distribute the subject wood chipper, and since Altec Industries is a
distinct legal entity from AEP, Altec Industries did not, and could not, have owed
Plaintiff any duties of care as alleged in Count VIII (Altec Industries - manufacturing
defects), Count IX (Altec Industries - design defects), Count X (Altec Industries defective warnings and instructions),2 Count XI (Altec Industries - negligent
manufacturer), Count XII (Altec Industries - negligent design), and Count XIII (Altec
Industries - negligent warnings and instructions)3 of the Third Amended Complaint.
Therefore, as to Altec Industries, final summary judgment is appropriate as to Counts
VIII - XIII. Summary judgment will be denied, however, as to the last count against
Altec Industries: Count XIV, for negligent maintenance and operating instructions, as
explained later in section E.
B.
AEP - Strict Liability
In order to hold a manufacturer liable on a theory of strict liability in tort, the
user must establish the manufacturer’s relationship to the product, the defect and
unreasonably dangerous condition of the product, and the existence of the proximate
causal connection between such condition and the user’s injuries or damages. West v.
Caterpillar Tractor Co., 336 So.2d 80, 87 (Fla. 1976). Stated differently, “a strict
product liability action requires the plaintiff to prove that (1) a product (2) produced
by a manufacturer (3) was defective or created an unreasonably dangerous condition
(4) that proximately caused (5) injury.” Tran v. Toyota Motor Corp., 420 F.3d 1310,
2
See infra § D.
3
Id.
Page 11 of 22
1312 (11th Cir. 2005) citing McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257
(11th Cir. 2002). Of particular interest in this case is the question of whether
Plaintiffs have presented evidence that the subject wood chipper created an
unreasonably dangerous condition that was a cause of Hernandez’s injury. Halpryn v.
Highland Ins. Co., 426 So.2d 1050, 1051 (Fla. Dist. Ct. App. 1983).
Plaintiffs allege that AEP owed Plaintiffs a duty to “use reasonable care in the
designing, manufacturing, testing, inspecting, maintaining, repairing, providing
warnings and instructions for and replacing the subject wood chipper . . . so that the
subject wood chipper could be safely used in a manner for the purpose for which it
was made.” Compl. ¶ 21 as incorporated in Counts I, II and III. Plaintiffs allege that
AEP breached this duty by placing into the stream of commerce a wood chipper that
was unreasonably dangerous to users such as Hernandez. As a result of these alleged
defects, Plaintiffs claim damages proximately caused by the inherent danger of the
subject wood chipper.
In responding to AEP’s Motion for Summary Judgment, Plaintiffs focus
exclusively on an alleged design defect of the subject wood chipper.4 Plaintiffs argue
4
“ A product contains a manufacturing defect when the product departs from
its intended design even though all possible care was exercised in the preparation and
marketing of the product. . . ” Union Carbide Corp. v. Aubin, - F.3d-, No. 3D10–1982,
2012 WL 2327751, *6 (Fla. Dist. Ct. App. June 20, 2012). As the record is clear that
no manufacturing defects are at issue in this matter, and as a result of Plaintiff’s
admission that “Plaintiffs are providing no matters in opposition to the argument that
there are no genuine issues of material fact concerning the extent to which defective
manufacture caused the plaintiffs’ damages,” the Court finds there are no genuine
issues of material fact regarding the essential elements of Plaintiffs’ manufacturing
defect claims. DE 184 at 10, n.6. Accordingly, summary judgment is appropriate as a
matter of law as to those claims alleging manufacturing defects, including Count I (Strict
Page 12 of 22
that the foreseeable risk of harm posed by the wood chipper could have been reduced
or avoided by the adoption of a reasonable alternative design. Specifically, Plaintiffs
point out that the design of the subject wood chipper utilized a bolted-on lower access
plate/guard to cover the lower in-feed roller, as opposed to a more easily detachable
cover. By virtue of the bolted on cover, it was allegedly unreasonably difficult and
time consuming for workers on the job to remove and then replace the cover when
debris clogged the in-feed rollers. This design allegedly encouraged operators to
remove the guard and leave the guard removed: an allegedly foreseeable event.
Plaintiffs also point to an alternative design with a hinged door and safety interlock
that, in theory, could have eliminated or minimized the danger without seriously
impairing the product or making it unduly expensive.
The Florida Supreme Court has adopted the doctrine of strict liability as stated by
the American Law Institute Restatement (Second) of Torts § 402A and elaborated
somewhat on its language stating,
[t]he term “unreasonably dangerous” more accurately depicts liability of a
manufacturer or supplier in that it balances the likelihood and gravity of
potential injury against the utility of the product, the availability of other,
safer products to meet the same need, the obviousness of the danger,
public knowledge and expectation of the danger, the adequacy of
instructions and warnings on safe use, and the ability to eliminate or
minimize the danger without seriously impairing the product or making it
unduly expensive. Thus, an unsafe product, whether it be characterized as
inherently dangerous or unavoidably dangerous, would not necessarily be an
unreasonably dangerous product.
Norton v. Snapper Power Equipment, Div. of Fuqua Industries, Inc., 806 F.2d 1545, 1545
Liability Against AEP (Manufacturing Defects) and Count IV (Negligence Against AEP
(Negligent Manufacturer)). Celotex, 477 U.S. at 322.
Page 13 of 22
(11 th Cir. 1987) (“Norton”) quoting Radiation Technology, Inc. v. Ware Construction Co.,
445 So.2d 329, 331 (Fla. 1983).
In Norton, the issue was whether the failure to install a “dead man” device
rendered a Snapper mower unreasonably dangerous. In its motion for a directed verdict,
Snapper argued that Norton failed to demonstrate at trial that the new, highly effective,
“dead man” device was available or feasible for installation in 1981 Snapper mowers.
After noting that “the use of ‘state of the art’ evidence infuses some measure of ‘fault’
analysis into the strict liability equation,” the Eleventh Circuit concluded that “the ability
to eliminate or minimize the danger without seriously impairing the product or making it
unduly expensive” is a factor in determining whether a product is unreasonably
dangerous. Norton, at 1549. But the Eleventh Circuit was quick to point out that “the
feasibility of alternative design is only one factor in the analysis.” Id.
Whether a product is unreasonably dangerous is normally a question for the jury.
Norton at 1548. However, “[a] manufacturer is not strictly liable for all injuries caused
by its product, however it is used. On the contrary, a manufacturer is liable only when
the product is used as intended.” Jennings v. BIC Corp., 181 F.3d 1250, 1256 (11th Cir.
1999) (citing High v. Westinghouse Electric Corp., 610 So.2d 1259, 1262 (Fla.1993)).
At the hearing on the instant motion, the Court pressed Plaintiffs’ counsel to
cite any cases that held a manufacturer strictly liable for failing to modify a design of
a product that when used as directed was not harmful or dangerous, but when
foreseeably misused or put to an unintended use, could be found to be unreasonably
Page 14 of 22
dangerous. Hr’g Tr. at 50-51, 57. Counsel replied in the affirmative, stating Norton
was right on point in its decision to reverse the lower court’s judgment
notwithstanding the verdict because expert opinions were offered that “state of the
art” deadman devices were available, but Snapper instead decided to pursue their
own form of dead man device. Norton, 806 at 1549-50; Hr’g Tr. at 54.
There is, however, a critical factual difference between this case and Norton.
In Norton, the mower was found to be defective or unreasonably dangerous as
designed. In this case, it is undisputed that the wood chipper as designed was not
dangerous. When counsel was presented with this factual distinction, counsel simply
responded that the wood chipper in this case was unreasonably dangerous as designed
because “it didn’t work the way it was supposed to,” and thus promoted the
foreseeable misuse of operating the chipper without the safety cover. Hr’g Tr. at 72,
75. Plaintiffs have no authority for the proposition that a manufacturer may be
strictly liable for a foreseeable misuse of a product or for a product that is not
unreasonably dangerous as designed, but which merely functions in an allegedly
unsatisfactory or inefficient manner.
In High v. Westinghouse Elec. Corp., the Florida Supreme Court concluded that
in order for strict liability to apply to a manufacturer, the manufactured product at
issue “must have been used for the purpose intended.” Id. at 1262. When the
manufactured product is not used as intended “strict liability does not apply.” Id. In
reaching this conclusion, the Florida Supreme Court's majority rejected “the dissenting
Page 15 of 22
view that ‘intended use’ includes unintended uses of a product if they were reasonably
foreseeable by the defendant.'” Jennings v. BIC Corp., 181 F.3d at 1256 (quoting High,
610 So.2d at 1263) (“Since use of a lighter as a children's plaything was not its
intended use, the manufacturer is not strictly liable for injuries incurred when it is so
used, even if such use was reasonably foreseeable by BIC”).
The subject wood chipper was designed and manufactured with a safety guard,
and was, without dispute, reasonably safe for consumer use so long as the safety guard
remained in place. The fact that the safety guard could be, and was in the instant
case, removed from the machine, resulting in the loss of a substantial portion of
Hernandez’s hand, does not render the machine unreasonably dangerous so as to
permit a jury finding to that effect. This is so because a manufacturer is, as a matter
of law, under no duty to produce a fail-safe product, so long as the product poses no
unreasonable dangers for consumer use. Veliz v. Rental Service Corp. USA, Inc., 313
F. Supp. 2d 1317, 1326-27 (M.D. Fla. 2003). Producing an otherwise safe wood chipper
with a detachable safety guard poses no such unreasonable dangers. Knox v. Delta
Intern. Machinery Corp., 554 So.2d 6, 7 (Fla. Dist. Ct. App. 1989). Even Hernandez, an
experienced ground worker with years of working with wood chippers, concedes this
point by agreeing in his deposition that had the safety cover been in place, the
accident would not have occurred. Hernandez 5/11/11 Depo. 131.
In Knox, the appellate court affirmed final summary judgment in favor of the
defendant based on a holding that the jointer machine, which the plaintiff was using
Page 16 of 22
when he was injured, did not, as a matter of law, contain an unreasonably dangerous
defect.
The jointer machine was designed and manufactured with a safety guard,
and was, without genuine dispute, reasonably safe for consumer use so
long as the safety guard remained on the machine. The fact that the
safety guard could be, and was in the instant case, detached from the
machine, resulting in the loss of two of the plaintiff James Knox’s fingers,
did not, as urged, render the machine unreasonably dangerous so as to
permit a jury finding to that effect. This is so because a manufacturer is,
as a matter of law, under no duty to produce a fail-safe product, so long
as the product poses no unreasonable dangers for consumer use.
Producing an otherwise safe jointer machine with a detachable safety
guard poses no such unreasonable dangers.
Knox, 554 So. 2d at 7. “Products liability does not make the manufacturer an insurer
of all foreseeable accidents which involve its product. Virtually any product is capable
of producing injury when put to certain uses or misuses.... [T]he availability of an
alternative design does not translate into a legal duty in products liability. An action
is not maintainable in products liability merely because the design used was not the
safest possible.” Husky Indus., Inc. v. Black, 434 So.2d 988, 991 (Fla. Dist. Ct. App.
1983) (citing Hunt v. Blasius, 384 N.E.2d 368, 372 (1978)); Grunow v. Valor Corp. of
Florida, 904 So.2d 551, 556 (Fla. Dist. Ct. App. 2005).
To hold otherwise would make a manufacturer or distributor an insurer of its
product. See Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 493 (Fla. 1979) (“A
manufacturer, although liable for injuries caused by a defect in its product, is not an
insurer for all physical injuries caused by its product”); West v. Caterpillar Tractor
Co., 336 So.2d 80 (Fla.1976). Plaintiffs have failed to point to any evidence that the
Page 17 of 22
bolted-on guard cover was “not reasonably safe.” The failure to offer any evidence
showing that the wood chipper’s design utilizing a bolted-on safety cover constitutes a
defect is fatal to their claim, regardless of whether the claim is based on strict
liability or negligence. Edic ex rel. Edic v. Century Products Co., 364 F.3d 1276, 1280
(11th Cir. 2004); Clark, 929 F.2d at 606–608; Babine v. Gilley's Bronco Shop, Inc., 488
So.2d 176, 178 (Fla .Dist. Ct. App.1986) (“[T]here is no requirement for a
manufacturer to provide all designed and recommended safety devices with its
product. Warning of the need of additional equipment for safe operation of the
product is sufficient.”)
Since Plaintiffs have not produced any evidence that the subject wood chipper
was defectively designed, or, as a result of its design, created an unreasonably
dangerous condition as necessary to sustain a strict liability claim for the design of the
wood chipper, summary judgment must be granted as to Count II (Strict Liability
Against AEP - Design Defects).
C.
AEP - Negligence, Design Defect
The very same issues related to the counts for strict liability of a design defect
are applicable to Plaintiffs’ counts for negligence. As mentioned above, under Florida
law, where there is a failure to offer any evidence showing that a design feature
constitutes a defect, the claim for a defective design must be dismissed whether the
claim is based on negligence or strict liability. Edic ex rel. Edic v. Century Products
Co., 364 F.3d 1276, 1280 (11th Cir. 2004). Pursuant to this standard, summary
Page 18 of 22
judgment is appropriate as to Count V (Negligent Design) as fundamentally lacking any
evidence that the subject wood chipper was “unreasonably dangerous.” See Compl.
¶¶ 37, 39, 42, 54.
D.
AEP - Warnings and Instructions
Count III (Strict Liability - Defective Warnings and Instructions) and Count VI
(Negligent Warnings and Instructions) allege that AEP failed to provide adequate
warnings and instructions to Hernandez on how to use, maintain, recognize and
appreciate the dangers inherent within the wood chipper. Compl. ¶¶ 30-36, 44-45.
“It is well-established that Florida law imposes a duty to warn ‘where a product
is inherently dangerous or has dangerous propensities’ unless such dangers are known
or obvious. Farias v. Mr. Heater, Inc., 684 F.3d 1231, 1233 (11th Cir. 2012). AEP
argues just that - that it has no duty to warn consumers that their wood chipper would
be dangerous if operated without the safety guard. Knox v. Delta Intern. Machinery
Corp., 554 So.2d 6, 7 (Fla. Dist. Ct. App. 1989) (“Nor was a warning required that the
[jointer] machine would be dangerous if the safety guard was removed; a
manufacturer has no duty to warn consumers of such an obvious danger”); see also
Veliz v. Rental Service Corp., 313 F. Supp. 2d 1317 (M.D. Fla. 2003). Therefore, since
Plaintiffs’ only claim is that Defendant failed to warn that the wood chipper should not
be used without the safety cover, and since, as a matter of law, there is no duty to
warn of such “an obvious danger,” summary judgment is appropriate as to Counts III
and VI.
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E.
Negligence, Maintenance and Operating Instructions
Count VII (AEP - Negligent Maintenance and Operating Instructions) and Count
XIV (Altec Industries - Negligent Maintenance and Operating Instructions) alleges that
Rory Montello, an employee of Altec Industries, was negligent in providing
maintenance and repair services to Asplundh, which resulted in Plaintiffs’ injuries.
Plaintiffs allege that Montello specifically directed Gonzalez, an Asplundh employee,
to remove the lower in-feed roller access plate/guard as an operating instruction and
as a means of addressing the repeated instances of jamming of the in-feed rollers
while being operated in the field. As a result of Altec Industries’ instructions,
Hernandez claims he was exposed to a foreseeable unreasonably dangerous condition
during the performance of his duties. Compl. ¶¶ 47-54, 88-98. Plaintiffs cite to
Gonzalez’s deposition at 246, lines 11-20 for this fact. The question posed by
Plaintiff’s counsel to Gonzalez was:
Q:
Real quick: The gentleman from Altec, Rory Montello, in addressing your field –
in addressing your problem with the in-feed roller, said, “remove the cover.
That will prevent the cover from pressing the debris against the in-feed rollers
and that will allow to you chip wood with the in-feed rollers turning,” correct?
Mr. Hood: Object to the form of the question.
A:
That’s . . . Yes.
Q:
That’s what he told you, thank you. I’m done.
Defense counsel, Mr. Hood, followed up:
Page 20 of 22
Q:
That was in the context of maintenance, correct?
Mr. Giuliani: Object to the form.
A:
Yes.
When Montello was asked at his deposition about whether he gave this
instruction, Montello testified: “No, I don’t remember any conversation about it
clogging, and I know that there is no way you can tell him to remove it to clean it out,
to run it without the plate being on.” Montello Depo. 68, lines 14-17.
The conflict in testimony on whether an agent of Altec Industries directed
Asplundh to remove the safety guard, and hence whether Altec Industries was
negligent, creates a genuine issue of a material fact that cannot be resolved as a
matter of law. Therefore, this one claim must be resolved at trial.
However, since Montello specifically testified (twice) that he works for Altec
Industries (not AEP), and Plaintiffs have presented no evidence to the contrary,
summary judgment is appropriate as to Count VII against AEP. AEP was not involved in
the maintenance or repair of its wood chipper. Montello Depo. 5, 21. The motion for
summary judgment must be denied as to Count XIV (Altec Industries - Negligent
Maintenance and Operating Instructions) and the case will proceed to trial on Count
XIV. Therefore, it is hereby
ORDERED AND ADJUDGED that Altec Environmental Products, LLC and Altec
Industries, Inc.’s Motion for Summary Judgment [DE 154] is granted in part and denied
in part in accordance with the conclusions made herein. Summary judgment is
Page 21 of 22
granted as to all counts against AEP. Trial will proceed on Count XIV against Altec
Industries alone.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 1st day of October, 2012.
_________________________
KENNETH A. MARRA
United States District Judge
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