Lambert v. G.A. Braun International, LTD et al
Filing
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MEMORANDUM OPINION AND ORDER: Both of Defendant's Motions for Summary Judgment 27 and 36 are GRANTED, and Defendant's Motion for Leave to File a Reply Memorandum in Excess of Fifteen Pages 32 is GRANTED.. Signed by Chief Judge Joseph H. McKinley, Jr. on 6/17/2016. cc: Counsel(JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-cv-00390-JHM
CHASE LAMBERT
PLAINTIFF
V.
G.A. BRAUN INTERNATIONAL, LTD.
and G.A. BRAUN, INCORPORATED
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on two separate motions by Defendants for Summary
Judgment [DN 27, 36] and a Motion for Leave to File a Reply Memorandum in Excess of Fifteen
Pages [DN 32]. Fully briefed, these matters are ripe for decision.
I. BACKGROUND
This action involves an incident on May 29, 2013, in which Plaintiff Chase Lambert was
injured at work. Plaintiff was employed by Cintas Corporation in Louisville, Kentucky as a
wash alley attendant. (Defs.’ Fist Mem. Supp. Mot. Summ. J. [DN 27] at 7; Lambert Dep. [DN
27-10] at 66:1–9.) As a part of its business, Cintas transports soiled products that it picks up
from its customers and processes/cleans these products in its facility, where wash alley
attendants, like Plaintiff, wash and dry them. (Alsip Dep. [DN 27-1] at 13:17–25; 14:1–12.)
On the day of Plaintiff’s injury, Plaintiff was working the second shift in the wash alley.
(Defs.’ Fist Mem. Supp. Mot. Summ. J. [DN 27] at 7; Lambert Dep. [DN 27-10] at 52:2–21.)
Plaintiff was responsible for loading wet mats into the large industrial dryers manufactured by
Defendants. (Lambert Dep. [DN 27-10] at 46:11–2.) The wet mats move along an overhead
pulley system in bags along an overhead rail. (Id. at 47:9–25, 48:1–17.) As Plaintiff was
manually loading the wet mats into the dryer, the dryer was set on automatic mode and the drum
was rotating. (Id. at 46:2.) When one of the dryer fins hit one of the bags containing the wet
mats, Plaintiff’s hand got tangled in the bag, and, due to the rotation of the drum, Plaintiff was
lifted off of the ground several times resulting in a broken arm. (Id. at 48:15–22, 52:2–12,
48:21–22).
Plaintiff brought this suit against Defendants, alleging a manufacturing defect, design
defect, failure to warn claim, and breach of implied warranty. (Pl.’s Compl. [DN 1-2] at 3–4.)
Defendants now request the Court to grant summary judgment on all claims. (Defs.’ First Mot.
Summ. J. [DN 27] at 1; Defs.’ Second Mot. Summ. J. [DN 36] at 1.)
II. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by “citing to
particular parts of materials in the record” or by “showing that the materials cited do not
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establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1). “The mere existence
of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252.
III. DISCUSSION
Plaintiff has alleged a manufacturing defect, a design defect, a failure to warn claim, and
a breach of implied warranty. The Court will address them in turn.
A. Manufacturing Defect
“Under Kentucky law, a manufacturing defect exists in a product when it leaves the
hands of the manufacturer in a defective condition because it was not manufactured or assembled
in accordance with its specifications.” Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d
784, 788 (6th Cir. 2005) (citing Ford Motor Co. v. McCamish, 559 S.W.2d 507, 509–11 (Ky. Ct.
App. 1977)). This means that “[a] manufacturing defect claim requires” the determination that
“the product failed because of an error in the process of manufacture or assembly.” Id. To
prevail on this strict liability theory, “a litigant must show that a product ‘was not manufactured
or assembled in accordance with its specifications’ and that the deviation was a ‘substantial
factor’ in his injury. Low v. Lowe’s Home Centers, Inc., 771 F. Supp. 2d 739, 743 (E.D. Ky.
2011) (citing Greene, 409 F.3d at 788).
Although Plaintiff pled a manufacturing defect claim, he has failed to provide any
evidence of one. Neither Plaintiff nor his expert, Mr. Johnson, offer any evidence that the dryer
“was not manufactured or assembled in accordance with its specifications,” as is required for a
manufacturing defect claim. Low, 771 F. Supp. 2d at 744. The main thrust of Plaintiff’s case is
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his allegation of defective design, which will be addressed in the next section. Therefore, the
Court will grant summary judgment on the manufacturing defect claim.
B. Design Defect
“Whether based on a negligence or strict liability theory, Jones v. Hutchinson Mfg., Inc.,
502 S.W.2d 66, 69–70 (Ky. 1973),” in a design defect case, “the plaintiff must show that the
‘design itself selected by the manufacturer’—the plan, structure, choice of materials, and
specifications, id. at 69—was ‘unreasonably dangerous[,]’ Nichols v. Union Underwear Co., 602
S.W.2d 429, 433 (Ky. 1980).” Low, 771 F. Supp. 2d at 741. In order to do this and to establish
a prima facie case for design defect, a plaintiff must offer proof of: 1) “an alternative safer
design, practicable under the circumstances”; 2) “what injuries, if any, would have resulted had
the alternative, safer design been used”; and 3) “some method of establishing the extent of
enhanced injuries attributable to the defective design.” McCoy v. Gen. Motors Corp., 47 F.
Supp. 2d 838, 839 (E.D. Ky. 1998), aff’d, 179 F.3d 396 (6th Cir. 1999) (quoting Caiazzo v.
Volkswagenwerk A.G., 647 F.2d 241, 250 (2nd Cir. 1981)); see Caudill v. Toyota Motor Corp.,
No. CIV.A. 04-333-DLB, 2005 WL 3149311, at *3 (E.D. Ky. Nov. 23, 2005). “[T]he onus is on
[the] [p]laintiff to provide expert testimony setting forth ‘competent evidence of some
practicable, feasible, safer, alternative design.’” Franklin v. Enter. Rent-A-Car Co. of Cincinnati
& Kentucky, No. 4:10CV-00072-JHM, 2013 WL 820858, at *2 (W.D. Ky. Mar. 5, 2013)
(quoting Estate of Bigham v. DaimlerChrysler Corp., 462 F. Supp. 2d 766, 773 (E.D. Ky. 2006)).
First, for an alternative feasible design, “Plaintiffs must show ‘something more than that
it was ‘theoretically probable that a different design would have been feasible.’” Estate of
Bigham v. DaimlerChrysler Corp., 462 F. Supp. 2d 766, 776 (E.D. Ky. 2006) (quoting Brock v.
Caterpillar, Inc., 94 F.3d 220, 224 (6th Cir. 1996)). Even evidence or “proof that technology
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existed, which if implemented would feasibly have avoided a dangerous condition, does not
alone establish a defect.” Id. (quoting Brock, 94 F.3d at 224). “Under Kentucky law, design
defect liability requires such proof” that a feasible, alternative, safer design exists.
Caudill,
2005 WL 3149311, at *3 (citing Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 41–42 (Ky.
2004)). Second, the plaintiff must also produce evidence that the alternative design “would have
prevented the injury.” Dalton v. Animas Corp., 913 F. Supp. 2d 370, 375 (W.D. Ky. 2012)
(citing Cummins v. BIC USA, Inc., 835 F. Supp. 2d 322, 326 (W.D. Ky. 2011)); see Gregory,
136 S.W.3d at 42.
Plaintiff has failed to show that a feasible alternative or safer design existed. Plaintiff’s
expert, Mr. Johnson, examined the dryer and concluded that the dryer and its protective measures
were unsafe and hazardous. (Johnson Report [DN 19-1] at 8–11.) However, Johnson proffers no
alternative design, no proof that the design would be feasible and no argument or evidence that
the alternative design would have prevented the injury. He merely concludes that “there were no
protective measures implemented to eliminate the hazard of operator exposure to moving parts
with the dryer set in automatic mode,” “[d]ryer safeguards were not effective in all operating
modes,” and generally “Dryer No. 2 was not equipped with an appropriate means of machine
control logic and safeguarding to comply with applicable international and national safety
standards.” (Id. at 6.) Simply restating that the dryer was unsafe does not provide the requisite
alternative design, feasibility, or potential prevention of injury components necessary for design
defect claims.
The only potential proposal of an alternative design, reading the record
generously in Plaintiff’s favor, is as follows: “At the front of the dryer where loading occurs,
there was no sensitive protective equipment, such as pressure sensitive protective devices or
mats, which would stop the dryer from spinning if a person was in the loading area where
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exposure to rotating parts could occur.” (Id.) However, Johnson does not truly propose an
alternative design; rather, he simply states that the dryer itself lacked certain safety features and
gives examples of those features. Even if construed as an alternative design proposal, neither
Plaintiff nor Johnson points to evidence in the record that proves that it is feasible or that it
would have mitigated or prevented Plaintiff’s injury. See Estate of Bigham, 462 F. Supp. 2d at
776 (granting summary judgment for defendant because the plaintiffs failed to offer competent
expert testimony and to identify at least one design alternative).
Furthermore, Plaintiff ignores the fact that the dryer system was designed with sufficient
safeguards when used in automatic mode in the manner intended. Defendants designed a key
switch on the front of the dryer to switch the dryer from automatic to manual. When switched to
manual the dryer drum cannot automatically spin. A laborer who is manually loading a dryer,
switch to the manual setting, in order to make the dryer drum rotate, must remove his hands from
the dryer to operate controls on the outside of the dryer. Thus, the evidence is clear that the
Defendants designed sufficient safeguards to protect against what occurred in this case.
Therefore, Plaintiff has failed to establish by competent evidence that a feasible
alternative or safer design existed. Because Kentucky law requires such proof for design defect
liability, see Gregory, 136 S.W.3d at 41–42, and because Defendants have shown that it designed
the dryer in a safe manner, free from design defects, Plaintiff’s claim fails as a matter of law. 1
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“A plaintiff in Kentucky can bring a defective design claim under either a theory of negligence or strict liability.”
Dalton, 913 F. Supp. 2d at 377 (quoting Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 535 (Ky. 2003)). “We
think it apparent that when the claim asserted is against a manufacturer for deficient design of its product the
distinction between the so-called strict liability principle and negligence is of no practical significance so far as the
standard of conduct required of the defendant is concerned.” Nichols, 602 S.W.2d at 433. Under either theory, “the
standard required is reasonable care.” Id. Therefore, because Plaintiff cannot succeed on a strict liability theory,
assuming Plaintiff has asserted a negligent design claim, it must fail for the reasons set forth above in the strict
liability analysis.
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C. Failure to Warn
Plaintiff additionally claims that Defendants failed to exercise reasonable care “to warn
Plaintiff of dangers that were latent, unknown, or not obvious” and “to discover the existence of
dangerous conditions and either correct or warn of them.” (Compl. [DN 1-2] ¶ 17.) Under
Kentucky law and the Restatement (Second) Torts § 388, a defendant is liable under a negligent
failure to warn claim if he “(a) knows or has reason to know that the chattel is likely to be
dangerous for the use for which it is supplied, (b) has no reason to believe that those for whose
use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable
care to inform them of its dangerous condition or of the facts which make it likely to be
dangerous.” Tipton, 101 F.3d at 1149–50 (citing Restatement (Second) of Torts § 388 (1965)).
“Under the negligence theory of recovery, a manufacturer must ‘warn the consumer of nonobvious dangers inherent in the probable use of the product,’ even dangers from foreseeable
misuse.” Id. at 1150 (quoting Byrd, 629 F.Supp. at 605). In the case of negligent failure to
warn, “the manufacturer is not charged with hindsight, as with strict liability.” Id. (citing Byrd,
629 F. Supp. at 605 n. 5).
Plaintiff’s evidence on this claim consists of his expert’s opinion that Defendants failed
to provide “information” about how users are supposed to program the dryer and “what
safeguards are necessary to prevent the operator from being exposed to rotating parts during
loading.” (Pl.’s Resp. [DN 30] at 6; Johnson Report [DN 19-1] at 11.) As discussed, the dryer
system was designed in a way to prevent the drum from spinning in automatic mode while being
loaded manually. Aside from that, it is clear that the Defendants knew of the dangers involved
and that they warned of that danger by placing the following amputation hazard warning in the
Operations Manual and on the front of the dryer itself:
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[Wilbur Aff. 9, Ex. E].
It is hard to imagine what additional information the Defendant could have provided to
safeguard an operator from being exposed to rotating parts during loading. The Court finds that
no reasonable jury could find in favor of the Plaintiff on his failure to warn claim.
Besides, “[t]he Kentucky Court of Appeals specifically stated that all product liability
actions, ‘regardless of whether the case involves failure to adequately warn, defective design or
other products liability theories, [require proof that] the product is defective.’” Shetler v. ALDI,
Inc., No. 3:10-CV-00778-JHM, 2012 WL 3264937, at *7 (W.D. Ky. Aug. 9, 2012) (quoting
Leslie v. Cincinnati Sub-Zero Products, Inc., 961 S.W.2d 799, 803–04 (Ky. Ct. App. 1998); see
Shea v. Bombardier Recreational Products, Inc., No. 2011-CA-000999-MR, 2012 WL 4839527,
at *4 (Ky. Ct. App. Oct. 12, 2012) (“Negligence and strict liability theories of recovery overlap
to the degree that, in either instance, the plaintiff must prove the product was defective and the
legal cause of the injury.”); see also Tipton, 101 F.3d at 1150 (holding that under Kentucky law,
theories of negligence or strict liability both require that a jury first find the product was
defective); Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 782 (Ky. 1984) (“The
sole question in a products liability case is whether the product is defective as defined in
[Nichols, 602 S.W.2d at 433]. Adequate warnings and descriptive literature are evidentiary
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considerations.”); Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky. Ct. App. 1970) (whether the
action involves negligent design, negligent failure to adequately warn, or the sale of a defective
product that is unreasonably dangerous because of an inherent defect or inadequate warning, in
every instance, the product must be a legal cause of the harm”). So, when “[t]he failure to warn
claim is based on the assertion that the product is defective,” and there is “no proof of a probable
defect,” causing “the negligent design or manufacture claim [to fail],” the negligent failure to
warn claim must similarly fail. Shetler, 2012 WL 3264937, at *7 (W.D. Ky. Aug. 9, 2012).
Here, Plaintiff’s negligent failure to warn claim is based on the same assertion that the Braun
dryer was defective in manufacture and/or design, and both of those claims failed.
Thus,
Plaintiff’s negligent failure to warn claim cannot succeed either as there is no proof that the
product is defective.
D. Breach of Implied Warranty
Defendants’ Second Motion for Summary Judgment fully addresses the breach of implied
warranty claim. In support, Defendants argue that Plaintiff’s breach of implied warranty claim
fails as a matter of law because Plaintiff was not in privity of contract with Defendants and
Defendants successfully disclaimed any implied warranties. Plaintiff does not respond to the
privity argument. “Federal Rule of Civil Procedure 56(e) requires that the nonmoving party’s
response designate specific facts demonstrating the existence of genuine issues of material fact.”
Spurlock v. Whitley, 79 F. App’x 837, 839 (6th Cir. 2003). Therefore, “[t]he nonmoving party is
deemed to have waived its opportunity to designate facts in accordance with Rule 56(e) when it
fails to properly file a response. Id. (citing Guarino v. Brookfield Twp. Trustees, 980 F.2d 399,
405 (6th Cir. 1992)). It is not the role of the district court to develop facts for the nonmoving
party; therefore, Plaintiff has effectively waived its opposition to this argument. Id.; Caterpillar
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Fin. Servs. Corp. v. Sunnytime Seeding & Landscaping, LLC, No. CIV. 10-316-GFVT, 2011
WL 4834242, at *2 (E.D. Ky. Oct. 12, 2011). Regardless, the Court finds the privity argument
persuasive on the merits and enough to grant summary judgment in favor of Defendants.
In Kentucky, “privity of contract is an essential element of a claim for breach of
warranty.” Pruitt v. Genie Indus., Inc., No. CIV.A. 3: 10-81-DCR, 2013 WL 139701, at *3 (E.D.
Ky. Jan. 10, 2013); (quoting Allen v. Abbott Labs., No. 11-146-DLB, 2012 WL 10508, at *5
(E.D. Ky. Jan. 3, 2012)); see KRS § 355.2-318; Compex Int’l Co. v. Taylor, 209 S.W.3d 462
(Ky. 2006) (dismissing an implied warranty claim was against the manufacturer of a product for
lack of contractual privity where the buyer purchased the product from a third party distributor);
Brown Sprinkler Corp. v. Plumbers Supply Co., 265 S.W.3d 237, 240 (Ky. Ct. App. 2007)
(stating that an implied warranty claim must establish that the plaintiff enjoyed privity of
contract with the defendant against whom the implied warranty claim is asserted).
Privity of contract requires “an underlying contractual relationship,” one existing in a
“buyer-seller relationship.” Compex, 209 S.W.3d at 465. However, “Kentucky law provides
that the warranty of a seller ‘extends to any natural person who is in the family or household of
[the seller’s] buyer or who is a guest in his home if it is reasonable to expect that such person
may use, consume or be affected by the goods and who is injured in person by breach of the
warranty.’” Allen, 2012 WL 10508, at *5 (quoting KRS § 355.2-318); see Williams v. Fulmer,
695 S.W.2d 411, 413 (Ky. 1985) (holding that “[i]f liability is based on the sale of a product, it
can be extended beyond those persons in privity of contract only by some provision of the
U.C.C. as adopted by Kentucky,” the only such provision being KRS § 355.2-318). Therefore,
“privity of contract for purposes of a breach of warranty claim requires a buyer-seller
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relationship, with narrow statutory exceptions provided for the family members and household
guests of that buyer.” Id.
This narrow extension to household members does not extend to employees.
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Kentucky Court of Appeals has found that it is “obvious” that “the Legislature did not intend to
include employees of the buyer within the parameters of the statute.” McLain v. Dana Corp., 16
S.W.3d 320, 326–27 (Ky. Ct. App. 1999). As the Kentucky Supreme Court noted in Williams,
“the Legislature was aware, when enacting our version of the Uniform Commercial Code, that
other alternatives to the statute existed which extended the concept of privity to allow a broader
range of injured persons to assert warranty theories of recovery.” Id. (citing Williams, 695
S.W.2d at 414). However, Williams makes clear that “commercial sales law is statutory,” and
the Kentucky “Legislature chose to limit actions for breach of warranty as provided in KRS §
355.2-318. It is not the function of the courts to extend the concept of privity to include those
whom the Legislature has not seen fit to protect.” Id.; see Taylor v. Southwire Tools & Equip.,
130 F. Supp. 3d 1017, 1021 (E.D. Ky. 2015) (“Warranties do not extend to employees of a
commercial purchaser.”).
Here, the facts as set forth in Defendant’s Second Motion for Summary Judgment are
sufficient to demonstrate that Defendants are entitled to judgment on this claim as a matter of
law. Plaintiff was simply an employee of Cintas’; he was neither the commercial purchaser
himself nor a member of the same family or household as Cintas. Plaintiff, as the non-moving
party, has both failed to address this argument and to direct the Court’s attention to any specific
evidence that supports a finding of privity of contract. The record, therefore, does not establish
the requisite privity of contract between Plaintiffs and Defendant to support a claim for breach of
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implied warranty under Kentucky law. Accordingly, Defendant’s Second Motion for Summary
Judgment regarding Plaintiffs’ breach of implied warranty claim is granted.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that both of Defendant’s
Motions for Summary Judgment [DNs 27, 36] are GRANTED, and Defendant’s Motion for
Leave to File a Reply Memorandum in Excess of Fifteen Pages [DN 32] is GRANTED.
June 17, 2016
cc: counsel of record
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