Provanzano v. MTD Products Company, et al

Filing 97

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERFor the forgoing reasons,1) the motion for summary judgment of defendant MTD Products Co. (Docket No. 36) is, with respect to the breach of express warranty claim i n Count I, ALLOWED, but is, with respect to all other claims, DENIED, and 2) the motion for summary judgment of defendant Lowes Home Centers, LLC (Docket No. 39) is, with respect to the breach of express warranty claim in Count II, ALLOWED, but is, with respect to all other claims, DENIED.So ordered.(Caruso, Stephanie) (Main Document 97 replaced on 10/17/2016) (Caruso, Stephanie).

United States District Court
District of Massachusetts
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Anthony Provanzano,
Plaintiff,
v.
MTD Products Co. et al.,
Defendants.

Civil Action No.
15-11720-NMG

MEMORANDUM & ORDER
GORTON, J.
Plaintiff Anthony Provanzano (“plaintiff”) brought this
action against defendants MTD Products Co. and Lowe’s Home
Centers, LLC (collectively, “defendants”) arising out of a
riding lawn mower accident during which four of plaintiff’s
fingers were amputated.

Plaintiff claims MTD’s lawn mower was

defective and unreasonably dangerous and as a result, caused
plaintiff’s injuries.

Plaintiff also seeks relief from Lowe’s

for selling such a product.
Defendants filed separate motions for summary judgment
against plaintiff.

For the following reasons, those motions

will be allowed, in part, and denied, in part.
I.

Factual and Procedural Background
Late in the afternoon of October 12, 2014, Provanzano began

to mow his lawn.

After making two or three passes around his

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front yard, he noticed grass was clumping and not being ejected
from the chute.

He got off the rider mower to see if the grass

was wet enough to clump and whether he had to remove the clog.
Before dismounting, however, he locked the parking break
and put the lawn mower in neutral.

He also testified that he

thinks he accidently pulled the deck height lever instead of the
blade engagement lever (“PTO lever”).

Provanzano recounted that

while dismounting he had one hand on the steering wheel and one
hand on the back of the seat to steady himself until he reached
the ground.

He then went to the back of the mower, surmised

there was a clog and attempted to clear it.

He walked around to

the right side of the mower where he compared the grass from the
chute and the uncut grass under foot.

At that point, Provanzano

reached under the cutting deck in an attempt to clear the clog
resulting in the amputation of four of his fingers.
Plaintiff purchased his riding lawn mower, manufactured by
defendant MTD Products, from a Lowe’s Home Centers in Danvers,
Massachusetts.
The riding lawn mower has a PTO lever which is used to
engage and disengage the cutting blade from the mower’s engine.
The PTO lever is located next to a deck height lever on the
right fender of the mower.

The riding mower also has an

operator presence control (“OPC”) switch in the seat frame which

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is designed to stop the engine and blade as soon as the riders’
weight is removed from the back of the seat.
In April, 2015, defendants removed the case from
Massachusetts state court to federal court.

Pending before this

Court are defendants’ motions for summary judgment on all counts
of the complaint.
II.

Defendants’ Motions for Summary Judgment
Defendants move for summary judgment on the merits of each

of plaintiff’s four claims.

The complaint alleges separately

against each defendant 1) breach of implied and express warranty
of merchantability (Counts I and II), 2) negligence (Counts III
and IV), 3) unfair or deceptive acts or practices under the
Massachusetts Consumer Protection Act, M.G.L. c. 93A (“Chapter
93A”) (Counts V and VI) and 4) double or treble damages under
that same statute (Counts VII and VIII).
A.

Legal Standard

The role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991).

The burden is on the moving party to

show, through the pleadings, discovery and affidavits, “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).

A fact is material if it “might affect the outcome of

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the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).

A genuine issue of material

fact exists where the evidence with respect to the material fact
in dispute “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
Once the moving party has satisfied its burden, the burden
shifts to the non-moving party to set forth specific facts
showing that there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).

The Court must view the

entire record in the light most favorable to the non-moving
party and indulge all reasonable inferences in that party=s
favor. O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
Summary judgment is appropriate if, after viewing the record in
the non-moving party’s favor, the Court determines that no
genuine issue of material fact exists and that the moving party
is entitled to judgment as a matter of law.
B.

Application
1.

Counts I and II:

Breach of Express and Implied

Warranties of Merchantability
Plaintiff first claims that defendants breached express and
implied warranties of merchantability.
To the extent plaintiff asserts claims against defendants
for breach of express warranty in Counts I and II, the Court
will allow defendants’ motions for summary judgment.

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There are

no facts in the record indicating that plaintiff relied on any
specific warranties when he purchased the lawn mower. See M.G.L.
c. 106, § 2-313(1)(a).
With respect to the claims for breach of implied
warranties, however, the Court will deny defendants’ motions for
summary judgment.
Under Massachusetts law, manufacturers impliedly warrant
that their products will be “fit for the ordinary purposes for
which such goods are used.” Back v. Wickes Corp., 378 N.E.2d
964, 969 (Mass. 1978) (quoting M.G.L. c. 106, § 2–314(2)(C)).
To succeed on its breach of implied warranty of merchantability
claim, plaintiff must show that 1) defendant manufactured or
sold the product that injured plaintiff, 2) a defect or
unreasonably dangerous condition existed so that it was not
suitable for the ordinary uses for which goods of that kind were
sold, 3) plaintiff was using the product in a manner that
defendant intended or that could reasonably have been foreseen
and 4) the defect or unreasonably defective condition was a
legal cause of plaintiff’s injury. Lally v. Volkswagen
Aktiengesellschaft, 698 N.E.2d 28, 43 (Mass. App. Ct. 1998).
The plaintiff may base a claim for breach of an implied
warranty on a manufacturing, design or warning defect that makes
the product unreasonably dangerous. Evans v. Lorillard Tobacco
Co., 900 N.E.2d 997, 1010 (Mass. 2013).

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a.

Design defect

First, defendants aver that plaintiff cannot prevail on a
design defect theory because he did not show that moving the OPC
to a different location on the seat of the rider lawn mower
would have reduced the harm to the plaintiff.
disagrees.

The Court

Plaintiff’s theory is that placing the OPC in the

seat cushion, rather than the seat back, as defendant MTD does
with other mowers, and connecting it to the PTO, would have
reduced the blade stopping time.

Plaintiff maintains that

alternative design would have allowed the blades to come to a
complete stop, or at least slow down substantially, before he
reached under the mower.

The Court finds that plaintiff has

presented an adequate explanation of causation to survive
summary judgment. See Uloth v. City Tank Corp., 384 N.E.2d 1188,
1193 (Mass. 1978) (“[T]here is a case for the jury, if the
plaintiff can show an available design modification, which would
reduce the risk [of an injury] without undue cost or
interference with the performance of the machinery.”).
Defendants also contend that the alleged design defect in
the controls of the mower is unavailing.

Although plaintiff

testified that he did not look at the controls before he
mistakenly pulled the deck height lever instead of the PTO, it
is for the jury to decide whether altering the layout or color

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scheme of the controls could have reduced the harm that
occurred.
b.

Warnings defect

Plaintiff also claims the lawn mower was defective because
there was no warning label on the grass chute tube.

Defendants

respond that plaintiff’s expert could not be certain whether
different warnings would have changed the outcome and that
plaintiff testified that different warnings “maybe” would have
changed his reactions on that day.

In other words, defendants

maintain that plaintiff cannot show legal causation.
Viewing the evidence in the light most favorable to
plaintiff, as the Court must do, there is a genuine issue of
material fact for the jury as to whether the alleged defect in
the warnings contributed to the cause of plaintiff’s injury.
c.

Expert testimony

Finally, defendants submit that plaintiff’s claims fail
because of the absence of admissible expert testimony.

Under

separate cover, the Court has denied defendants’ motion to
exclude Mr. Sevart’s testimony and thus the Court finds this
argument unavailing.

Moreover, the fact that Mr. Sevart’s

testimony could be construed as materially inconsistent with the
plaintiff’s description of the accident is a question of fact
(and credibility) for the jury.

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Therefore, the Court will deny defendants’ motions for
summary judgment on Counts I and II with respect to the claims
for breach of implied warranty of merchantability but will allow
the motion with respect to the claims for breach of express
warranty.
2.

Counts III and IV:

Negligence

Defendants seek summary judgment on plaintiff’s negligence
claims.

A plaintiff claiming negligence must establish the

basic elements of duty, breach of duty, cause in fact and
proximate cause. Colter, 525 N.E.2d at 1313.

To establish

breach, the plaintiff must prove that the defendant 1) failed to
exercise reasonable care to eliminate avoidable dangers to the
user and 2) there is an alternative design available which would
allow the product to perform the same function in a safer
fashion. Uloth, 384 N.E.2d at 1191.
Defendants aver that plaintiff cannot show causation with
respect to these counts but their arguments fail for the same
reasons articulated as to Counts I and II above.

Therefore, the

Court will deny defendants’ motions for summary judgment with
respect to Counts III and IV.
3.

Counts V through VIII:

Claims under Chapter 93A

The Court will deny defendants’ motions for summary
judgment on Counts V through VIII.

Plaintiff’s Chapter 93A

claims are based on the same breach of implied warranty and

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negligence theories as the common law claims and thus survive
summary judgment on the same grounds. See, e.g., Iannacchino v.
Ford Motor Co., 888 N.E.2d 879, 889 (Mass. 2008) (“An implied
warranty claim and a c. 93A claim . . . based on the same
economic theory of injury and the same set of alleged
facts . . . should survive or fail under the same analysis.”).
4.

The Assertion of Defendant Lowe’s that There Is
No Evidence of a Duty Owed to Plaintiff

In its separate motion for summary judgment, Lowe’s
proffers an additional argument, without citation, that
plaintiff cannot establish any claim against it in the absence
of a showing that Lowe’s had a duty to test the lawn mower for
compliance with ANSI blade stop time standards.
That argument is unpersuasive, however, because expert
testimony is not required to establish a duty in this case.
Generally under Massachusetts law, the existence of a duty is a
question of law for the Court to decide. Cottam v. CVS Pharmacy,
764 N.E.2d 814, 819 (Mass. 2002).
With respect to the breach of implied warranty claims, the
issue in this case under a warnings theory is whether a
reasonable person would comprehend the warnings on the mower,
not the technical specifications of the lawn mower. See id. at
823 (finding expert testimony on the existence of a duty not
required where the case involved issues of warnings defect).

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Similarly, plaintiff’s defective design theory focuses on
whether the product was defective and unreasonably dangerous,
not on the seller’s conduct. See Colter, 525 N.E.2d at 1313.
Thus, plaintiff is not required to present expert testimony on
Lowe’s duty to test the lawn mower for blade stop times.
Plaintiff also does not need to establish that Lowe’s has a
specific duty to test the blade speed with respect to his
negligence claims.

The duty for negligence is a reasonableness

standard, not compliance with any industry benchmarks. See
Wasylow v. Glock, Inc., 975 F. Supp. 370, 376 (D. Mass. 1996)
(“We impose liability when a product’s . . . seller has failed
to use reasonable care to eliminate foreseeable dangers which
subject a user to an unreasonable risk of injury.” (quoting
Colter, 525 N.E.2d at 1313)).
Even assuming the ANSI B71.1 is the industry standard for
blade stop time, plaintiff need not prove that Lowe’s failed to
abide by that standard to succeed on a claim for negligence. See
Bergendahl v. Mass. Elec. Co., 701 N.E.2d 656, 720 (Mass. App.
Ct. 1998) (failing to comply with industry standards “is not
conclusive upon the issue” of negligence).

Because plaintiff

could succeed on a claim of negligence against Lowe’s without
showing that Lowe’s failed to comply with ANSI standards,
plaintiff’s expert need not establish that defendant had a duty
to test the mower for compliance with the ANSI standard.

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Therefore, the Court rejects Lowe’s argument that plaintiff’s
claims fail because he did not provide expert testimony on
whether Lowe’s had a duty to test the mowers for ANSI
compliance.

ORDER
For the forgoing reasons,
1)

the motion for summary judgment of defendant MTD
Products Co. (Docket No. 36) is, with respect to the
breach of express warranty claim in Count I, ALLOWED,
but is, with respect to all other claims, DENIED, and

2)

the motion for summary judgment of defendant Lowe’s
Home Centers, LLC (Docket No. 39) is, with respect to
the breach of express warranty claim in Count II,
ALLOWED, but is, with respect to all other claims,
DENIED.

So ordered.

/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated October 17, 2016

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