DEGENNARO v. RALLY MANUFACTURING INC. et al
Filing
49
MEMORANDUM AND ORDER granting in part and denying in part 44 Defts' Motion for Summary Judgment; that Pltf's claim for punitive damages is dismissed; that Counts One, Two, Four, Five, Seven, Nine and Ten are dismissed with prejudice. Signed by Judge Peter G. Sheridan on 10/27/2011. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALFRED DEGENNARO,
Civil Action No.: 09-443 (PGS)
Plaintiff,
v.
Memorandum and Order
RALLY MANUFACTURING INC., et al.,
Defendants.
SHERIDAN, U.S.D.J.
This matter comes before the Court on defendants Rally Manufacturing, Inc. (“Rally”)
and Pep Boys–Manny Moe & Jack of Delaware Inc.’s (“Pep Boys”) motion for partial summary
judgment.
On January 30, 2009, plaintiff Alfred DeGennaro (“Plaintiff”) filed a complaint against
Rally and Pep Boys (collectively “Defendants”) which sets forth eleven counts that can be
summarized as claims of: (1) negligence against Rally, Pep Boys, and John Doe packaging
company; (2) recklessness and wanton negligence against Rally, Pep Boys, and John Doe
packaging company; (3) strict products liability against Rally and Pep Boys; (4) breach of
contract against Pep Boys; (5) breach of express warranties against Rally and Pep Boys; (6)
breach of implied warranties against Rally and Pep Boys.
Defendants seek summary judgment dismissal of Plaintiff’s punitive damages claims
against Rally and Pep Boys. (Defendants’ Moving Br., p. 1). Pep Boys further seeks summary
1
judgment on the product liability claims in their entirety. (Defendants’ Moving Br., p. 2). For
the reasons set forth below, this Court grants in part and denies in part the Defendants’ motion.
I
The following summary of the facts is primarily drawn from the moving party’s
statement of undisputed facts. The facts are supplemented with allegations in the complaint and
Plaintiff’s submitted evidence where the Plaintiff has contested the moving party’s facts. On or
about February 15, 2007, Plaintiff purchased a Rally “Boost-It” battery pack from Pep Boys.
(Defendants’ Statement of Undisputed Material Facts, ¶¶ 1-2). The product was packaged
within a heat-sealed PVC wrapper. (Complaint, ¶ 13). Affixed to the Boost-It was a warning
label stating that “[f]ailure to follow instructions may cause damage or explosion hazard.”
(Plaintiff’s Opposition Br., Ex. F).
The unit also came with a separate instruction sheet
including cautions about the potentially flammable or explosive aspects of the product’s leadacid battery.1 (Plaintiff’s Opposition Br., Ex. G).
Soon after Plaintiff left the Pep Boys store, the Boost-It unit spontaneously exploded in
his hands. (Defendants’ Statement of Undisputed Material Facts, ¶ 3; Complaint, ¶ 7). Plaintiff
suggests that combustible gases collected within the heat-sealed plastic packaging of the Boost-It
and then exploded. (Complaint, ¶ 13). Plaintiff's expert witness Robert Hamlen, PhD., posited
1
According to the Boost-It instructions sheet:
“Working around Lead-Acid Batteries may be dangerous. Lead-acid batteries generate
explosive gases during normal charging and jump-starting operations”;
“All lead-acid batteries (car, truck, and boat) produce hydrogen gas which may violently
explode in the presence of fire or sparks. Do not smoke, use matches, lighters or open
flames while near batteries”;
“Do not operate this device while wearing vinyl clothing. Static electricity sparks maybe
[sic] generated when vinyl clothing is rubbed.” (Plaintiff’s Opposition Br., Ex. G).
2
that the Boost-It's heat-sealed packaging design was defective and that this defect “should have
been apparent to the designers.” (Plaintiff’s Opposition Br., Ex. H-2). Dr. Hamlen also asserted
that car mechanics and “personnel of a company dealing with lead-acid batteries” are familiar
with the danger posed by unventilated lead-acid batteries. (Plaintiff’s Opposition Br., Ex. H-3).
In their answer, Rally conceded that the heat-sealed packaging for Plaintiff’s Boost-It was
defective because it did not allow for sufficient ventilation.
(Defendants’ Statement of
Undisputed Material Facts, ¶ 4).
Plaintiff’s Boost-It was part of a two thousand unit order produced on Rally's behalf by a
Chinese manufacturer. (Plaintiff’s Opposition Br., p. 3, Ex. E-1 & Ex. J-13). On January 16,
2006, before units from this order were manufactured, Rally completed an engineering report on
a sample unit. (Defendants’ Statement of Undisputed Material Facts, ¶ 7). The January 16th
report identified no defects and the production sample was approved. (Defendants’ Statement of
Undisputed Material Facts, ¶ 7). However, the report indicates that no packaging was tested.
(Plaintiff’s Opposition Br., Ex. J-13, J-15). On April 3, 2006, before units from the Chinese
order were distributed, Rally completed another engineering test report. (Defendants’ Statement
of Undisputed Material Facts, ¶ 8). This report stated that all aspects of the sample unit passed
inspection, including the packaging. (Defendants’ Statement of Undisputed Material Facts, ¶ 8);
see also Plaintiff’s Opposition Br., Ex. J-16, J-18).
Prior to the explosion of Plaintiff’s Boost-It, Rally knew of at least one Boost-It unit
which appears to have exploded in a similar fashion. On November 29, 2006, Rally’s President
Wayne Yodzio received an e-mail containing pictures of a damaged Boost-It from an employee
of AutoZone Mexico. (Defendants’ Statement of Undisputed Material Facts, ¶ 9). On the next
day, November 30th , Mr. Yodzio e-mailed a response to AutoZone Mexico stating that Rally had
3
“never experienced a significant failure on this item.” (Defendants’ Statement of Undisputed
Material Facts, ¶ 13; Plaintiff’s Opposition Br., Ex. J-11). Mr. Yodzio reported that Rally’s head
engineer had reviewed the pictures, prior Boost-It engineering reports, and Rally’s customer
complaint files. (Defendants’ Statement of Undisputed Material Facts, ¶ 13). Mr. Yodzio
further reported that:
[O]ur assessment is that the unit was damaged or dropped during
shipping. In addition, it does not appear from the photo that the
battery exploded which was my biggest concern. From the
pictures it appears that the plastic housing exploded. We would
like to receive the damaged unit as soon as possible so we can
have our engineering department evaluate the actual cause of the
damage.
Plaintiff’s Opposition Br., Ex. J-11.
Rally tested the remnants of the exploded Boost-It from AutoZone Mexico and
memorialized the results in a January 31, 2007 engineering report. (Defendants’ Statement of
Undisputed Material Facts, ¶ 17; see also Plaintiff’s Opposition Br., Ex. J-2, J-19).
The
engineering report also references another damaged Boost-It; the genesis of that unit is
unexplained. (Plaintiff’s Opposition Br., Ex. J-19). The report describes both units’ casings as
“broken and/or damaged extensively.” (Plaintiff’s Opposition Br., Ex. J-19). The January 31st
report concludes that “[b]oth products [were] damaged during shipment” and suggests replacing
the units or providing a refund. (Defendants’ Statement of Undisputed Material Facts, ¶ 18; see
also Plaintiff’s Opposition Br., Ex. J-19). The report does not identify a ventilation problem or
any other design defects in the product.
Rally conducted further testing on the Boost-It after the Plaintiff’s unit exploded in
February 2007. (Defendants’ Statement of Undisputed Material Facts, ¶ 20). This testing
resulted in an engineering report, dated March 12, 2007, which identified a defect in the Boost4
It’s heat-sealed packaging. (Defendants’ Statement of Undisputed Material Facts, ¶ 20). On
March 26, 2007, Rally formalized an “Engineering Change Notice” ordering that manufacturers
omit the “heat-seal” on certain parts of the Boost-It’s plastic packaging. (Defendants’ Statement
of Undisputed Material Facts, ¶ 21; see also Defendants’ Moving Br., Ex. L).
Rally also commissioned a report on the Boost-It from an independent testing company,
Intertek ETL Semko (“Intertek”). The April 23, 2007 report included analysis of both a new
Boost-It and a damaged unit. (Plaintiff’s Opposition Br., Ex. I). Intertek's report did not identify
any packaging defect or ventilation concern and stated that:
Review of the damaged product showed damage . . . consistent
with results experienced from a drop of the product. If there were
any undue internal pressures within the enclosure, the impact from
the drop could cause the enclosure damage, however we were
unable to re-create this situation in the new sample.
Plaintiff’s Opposition Br., Ex. I-10.
Pep Boys had no role in the design, manufacture, or packaging of Boost-It, but sold 2,213
units from 2005 through February 17, 2007. (Defendants’ Statement of Undisputed Material
Facts, ¶ 5; Plaintiff’s Opposition Br., Ex. L). For the same time period, Pep Boys has no records
of any customer complaint, claim, or lawsuit concerning the Boost-It. (Plaintiff’s Opposition
Br., Ex. M-1).
After the February 2007 explosion of Plaintiff’s Boost-It, Pep Boys’s liability department
received reports of two other relevant incidents involving the Boost-It. On February 22, 2007, a
Pep Boys employee reported that he heard a hissing sound upon opening the packaging of two
Boost-It units. (Plaintiff's Opposition Br., p. 6 & Ex. M-7). On March 9, 2007, a Pep Boys
manager reported that a Boost-It exploded in his hands. (Plaintiff's Opposition Br., p. 6 & Ex.
M-10). On March 12, 2007, in an e-mail chain concerning the latter incident, Timothy Hurford,
5
a General Liability Manager for Pep Boys, stated that “[w]e are having a lot [sic] of these type
complaints we may want to pull these.” (Plaintiff’s Opposition Br., p. 12 & Ex. M-9). Later,
Hurford responded to a co-worker’s request for more details on the complaints by stating that
there had been a “customer claim.” (Plaintiff’s Opposition Br., Ex. M-9).
II
Summary judgment is appropriate when the moving party demonstrates 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). A genuine dispute as to a material fact exists only if a reasonable jury
could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Thus, the judge must view the evidence through the “prism” of the non-moving
party’s substantive evidentiary burden at trial – preponderance of the evidence, clear and
convincing evidence, or other. Id. at 254. A fact is considered material only if it may affect the
outcome of the litigation based upon the substantive law. Id. at 255. In considering a motion
for summary judgment, a district court may not make credibility determinations or engage in any
weighing of the evidence; instead, the non-moving party's evidence is to be believed and all
justifiable inferences are to be drawn in his favor. Marino v. Indus. Crating Co., 358 F.3d 241,
247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
After a party files a motion for summary judgment, along with supporting papers, the
non-moving party must produce specific facts showing that there is a genuine issue for trial.
Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109 (3d Cir. 1985) (citation
omitted). “[U]nsupported allegations . . . and pleadings are insufficient to repel summary
judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (citing Fed.
6
R. Civ. P. 56(e)). If a court determines, “after drawing all inferences in favor of [the nonmoving party], and making all credibility determinations in his favor – that no reasonable jury
could find for him, summary judgment is appropriate.” Alevras v. Tacopina, 226 F. App’x. 222,
227 (3d Cir. 2007).
III
Consolidation of the Product Liability Claims
The New Jersey Products Liability Act (“NJPLA”) provides the exclusive remedy for all
“product liability actions” brought under New Jersey law. DeBenedetto v. Denny's, Inc., 23 A.3d
496, 499 (N.J. Super. Ct. Law Div. 2010); see also New Hope Pipe Liners, LLC v. Composites
One, LCC, 2009 WL 4282644, **2-3 (D.N.J. Nov. 30, 2009). “‘Product liability action’ means
any claim or action brought by a claimant for harm caused by a product, irrespective of the
theory underlying the claim, except actions for harm caused by breach of an express warranty.”
N.J. Stat. Ann. § 2A:58C-1(b)(3). Plaintiff has only one NJPLA cause of action against each
defendant. Counts that style this same claim in an alternative theory such as breach of contract,
negligence, or breach of implied warranty must be dismissed. Three theories of liability may
move forward: NJPLA strict liability, wanton and willful recklessness, and breach of express
warranty.
Accordingly, Counts One, Four, Seven, Nine and Ten2 are dismissed.
Motion for Summary Judgment on Punitive Damages
Defendants assert that summary judgment dismissal of Plaintiff’s punitive damages claim
is warranted. The New Jersey Punitive Damages Act (“NJPDA”) limits the award of punitive
2
Please note that Counts Nine and Ten are misnumbered in the complaint as the second Count
Eight and Count Nine respectively.
7
damages to cases where “the plaintiff proves, by clear and convincing evidence, that the harm
suffered was the result of the defendant’s acts or omissions, and such acts or omissions were
actuated by actual malice or accompanied by a wanton and willful disregard of persons who
foreseeably might be harmed by those acts or omissions. N.J. Stat. Ann. § 2A:15-5.12(a)
(emphasis added). Malice requires intentional wrong-doing. N.J. Stat. Ann. § 2A:15-5.10
(emphasis added). “‘Wanton and willful disregard’ means a deliberate act or omission with
knowledge of a high degree of probability of harm to another and reckless indifference to the
consequences of such act or omission.” N.J. Stat. Ann. § 2A:15-5.10 (emphasis added). Proof
of negligence, even gross negligence, is insufficient for the Court to grant punitive damages.
N.J. Stat. Ann. § 2A:15-5.12(a). At a minimum, Plaintiff must show that a reasonable person
with Defendants’ knowledge about the Boost-It would consider sales of the product to be a
serious risk. See Smith v. Whitaker, 734 A.2d 243, 254 (N.J. 1999).
The relevant factual questions are whether the Defendants were aware of risks associated
with Boost-It and whether the Defendants’ response to those risks demonstrates wanton and
willful disregard to foreseeable victims.3
If Rally and/or Pep Boys sold the Boost-It with
knowledge of its explosive packaging defect, then it would be appropriate to allow the punitive
damages claim. See Zakrocki v. Ford Motor Co., 2009 WL 2243986, **23 -24 (N.J. Super. Ct.
App. Div. 2009) (reasonable jury could find wanton and willful disregard to others where car
manufacturer knew of defect causing occasional accelerator failure). If Rally and/or Pep Boys
sold the Boost-It without taking care to identify and resolve any risks posed by the Boost-It, then
3
Plaintiff incorrectly asserts that the Court should charge Defendants with knowledge of the
defect. (See Plaintiff’s Opposition Br., p. 6). All cases cited in support of this proposition are
strict liability decisions in which no punitive damages were sought. The NJPDA requirement
that plaintiff prove malice or willful and wanton disregard applies in product liability cases. See
Perlman v. Virtua Health, Inc., 2005 WL 1038953, *9 (D.N.J. May 3, 2005)
8
the punitive damages claim should proceed. See Brady v. Rockwell Int’l. Corp., 1993 WL
424238, *6 (D.N.J. Oct. 14, 1993) (reasonable jury could find wanton and willful disregard to
others where airplane manufacturer’s review of critical component was undermined by forgeries
and unrealistic testing conditions). On the other hand, mere knowledge of a prior Boost-It
failures is insufficient for a finding of willful and wanton disregard, so long as testing was
conducted that demonstrated the product’s safety. See Hatala v. Morey's Pier, Inc., 2007 WL
2159615, **1-4 (D.N.J. July 25, 2007) (dismissing punitive damages claim arising from
amusement ride injuries where nine persons had previously been injured in the same manner but
where the amusement had passed safety inspections); Pavlova v. Mint Mgmt. Corp., 868 A.2d
322, 324-25, 328 (N.J. Super. Ct. App. Div. 2005) (dismissing punitive damages claim arising
from housing fire where radiator placement had been identified as cause of two prior fires but
where radiator placement had since been approved by fire inspectors).
According to Defendants, the record demonstrates that Rally and Pep Boys were unaware
of the Boost-It’s packaging defect at the time of Plaintiff’s injuries despite extensive efforts to
ensure the product’s safety. (Defendants’ Moving Br., p. 7). As to Pep Boys, the Defendants
rely on the absence of any proof that Pep Boys knew of the defect or any prior Boost-It failures.
(Defendants’ Moving Br., p. 9, 11). Defendants also note that the retailer had no involvement in
designing, testing, manufacturing, packaging, or labeling the Boost-It. (Defendants’ Statement
of Undisputed Material Facts, ¶ 5). Turning to Rally, Defendants rely on the manufacturer’s
repeated testing of the product and the conclusion of this testing that there was no packaging
defect. Rally performed a pre-distribution engineering test of the Boost-It which approved all
aspects of the product, including packaging. (Defendants’ Statement of Undisputed Material
Facts, ¶ 8). When Rally first learned of an exploded Boost-It unit, it reviewed the photographs
9
and concluded that shipping was the sole cause of the damage. (Defendants’ Statement of
Undisputed Material Facts, ¶ 9). Finally, Rally reviewed the remnants of the first exploded
Boost-It unit and completed an engineering report which identified no defects and again
identified shipping damage as the culprit. (Defendants’ Statement of Undisputed Material Facts,
¶¶ 17-18).
Plaintiff does not contest any of these facts, except to make conclusory accusations that
Rally’s testing reports were fraudulent. (See Plaintiff’s Statement of Disputed Material Facts, ¶¶
8, 18). The undisputed evidence indicates that Defendants were unaware of the packaging defect
before Plaintiff’s February 17, 2007 incident. The evidence also demonstrates that Defendants
conscientiously endeavored to identify and address any risks posed by the Boost-It to others.
The evidence shows that, in reliance on the repeated Boost-It tests, Defendants believed that the
Boost-It was a safe product. Defendants’ moving papers demonstrate that, as a matter of law,
neither company acted with malice or wanton and willful recklessness.
In response, Plaintiff argues that the following evidence raises a genuine issue of fact
concerning the Defendants’ knowledge of the Boost-It packaging defect and general regard for
customer safety. (Plaintiff’s Opposition Br., pp. 3-4, 7-8). Plaintiff points to: (1) the Boost-It
unit’s label disclosing an “explosion hazard” (Plaintiff’s Opposition Br., Ex. F); (2) the BoostIt’s instruction sheet discussing steps to avoid explosion and fire risks (Plaintiff’s Opposition
Br., Ex. G); (3) the general awareness among automotive technicians and engineers that leadacid batteries must be ventilated (Plaintiff’s Opposition Br., Ex. H); (4) Occupational Safety &
Health Administration (“OSHA”) workplace regulations requiring ventilation in workplaces with
10
lead-acid batteries;4 (5) visible indications on the perimeter of the Boost-It’s plastic packaging
that pressure was building inside (Plaintiff’s Opposition Br., Ex. K; see also Plaintiff’s
Statement of Disputed Material Facts, ¶ 5); (6) Rally’s knowledge of the previous Boost-It
explosion reported by AutoZone Mexico (Defendants’ Statement of Undisputed Material Facts,
¶ 9); and (7) Rally’s access to photographic and physical evidence from the exploded AutoZone
Mexico Boost-It (Defendants’ Statement of Undisputed Material Facts, ¶¶ 9, 20).
Plaintiff failed to identify any evidence demonstrating a triable issue of fact concerning
Defendants’ awareness of the packaging defect before Plaintiff’s Boost-It exploded. The BoostIt’s warning label and instructions indicate that Defendants knew the product contained a
potentially dangerous lead-acid battery component. A reasonable jury could also find that the
Defendants were aware that lead-acid batteries must be ventilated because this knowledge is
common among those in the industry. Taken together, these facts suggest that Defendants
should have known of the packaging defect. However, no reasonable jury could find that these
facts prove by “clear and convincing evidence” that Defendants knew of the defect. Similarly,
no triable issue is raised by the possibility that one could have ascertained the packaging defect
by visually examining the perimeter of the Boost-It’s plastic packaging generally or by
reviewing the photographic and physical evidence from the exploded AutoZone Mexico unit. A
jury could also conclude that Rally knew two Boost-It units had exploded before Plaintiff
experienced his injuries.5 Knowledge of a failure is markedly different from understanding the
4
In this case, OSHA regulations merely serve as evidence that lead-acid battery risks are widely
known. The regulations do not serve as a standard of care because there are no negligence
claims at issue in this decision.
5
Rally’s January 2007 report analyzed two different Boost-It units with damaged casings. One
unit was the exploded Boost-It identified by AutoZone Mexico. The history of the other unit is
unclear. (Plaintiff’s Statement of Disputed Material Facts, ¶ 12). It is assumed for the purposes
11
reasons for the failure, especially in a complicated mechanical product.
All the evidence
available indicates that Rally believed shipping damage caused the two prior Boost-It
explosions, not any design defect in the product’s packaging.
Plaintiff failed to present any evidence demonstrating a triable issue of fact regarding the
alleged recklessness of Defendants’ Boost-It sales in light of the known risks. As explained
above, a reasonable jury could conclude that Defendants knew of the risks concerning lead-acid
batteries, particularly the dangers posed by unventilated lead-acid batteries. The jury could also
conclude that Rally was aware that two Boost-It units had exploded before Plaintiff experienced
his injuries. However, Plaintiff presents no evidence showing that Defendants willfully ignored
these risks. Instead, Rally tested their product repeatedly in response to these known risks.
Although Plaintiff repeatedly argues that Rally’s testing was deficient, he presents no evidence
on the matter. The soundness of Rally’s testing is buttressed by the later independent testing by
Intertek which was also unable to identify the packaging defect. Rally’s extensive testing
concluded that the product had no defects. No reasonable person with this knowledge could
consider the Defendants’ sales of the Boost-It to constitute a serious risk.
Even viewing the evidence in the light most favorable to the Plaintiff, there is no
indication that Rally and/or Pep Boys knew of the packaging defect or any other hazard that
would put Boost-It purchasers at risk. As a matter of law, there is no way that a reasonable jury
could find clear and convincing evidence that Defendants’ conduct was malicious or wantonly
and willfully reckless.
Accordingly, Counts Two and Five are dismissed.
of this motion that the second unit exploded in a similar fashion to Plaintiff’s Boost-It.
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Pep Boys’s “Seller” Defense to All Product Liability Claims
The NJPLA provides product “sellers” with a two-part affirmative defense to “product
liability actions.” This limited exception from the strict liability regime of products cases is
intended to reduce litigation costs borne by innocent retailers. Claypotch v. Heller, Inc., 823
A.2d 844, 851-52 (N.J. Super. Ct. App. Div. 2003) (citing Sponsor's Statement to S. 1495 of
1995, enacted as L.1995, c. 141)). To benefit from this defense, the seller must first identify the
product manufacturer if that company is not yet party to the case. See N.J. Stat. Ann. § 2A:58C9(a-b). Even where the seller identifies a manufacturer against whom relief can be obtained, the
seller is still liable if:
(1) The product seller has exercised some significant control over
the design, manufacture, packaging or labeling of the product
relative to the alleged defect in the product which caused the
injury, death or damage; or
(2) The product seller knew or should have known of the defect in
the product which caused the injury, death or damage or the
plaintiff can affirmatively demonstrate that the product seller was
in possession of facts from which a reasonable person would
conclude that the product seller had or should have had knowledge
of the alleged defect in the product which caused the injury, death
or damage; or
(3) The product seller created the defect in the product which
caused the injury, death or damage.
N.J. Stat. Ann. § 2A:58C-9(d) (emphasis added).
The seller bears the burden of showing that it does not fit into any of the three exceptions
to the seller safe harbor. Bashir v. Home Depot, 2011 WL 3625707, *4 (D.N.J. Aug. 16, 2011)
(citations omitted). A party moving for summary judgment on an affirmative defense “would
bear the burden of proof at trial and therefore must show that it has produced enough evidence to
support the findings of fact necessary to win.” El v. Southeastern Pa. Transp. Auth., 479 F.3d
232, 237 (3d Cir. 2007).
13
Only one aspect of Pep Boys’s “seller” safe harbor defense is in dispute: should Pep
Boys have known that the Boost-It was defective at the time of Plaintiff's purchase? (Plaintiff’s
Opposition Br., p. 11). The product manufacturer, Rally, is a defendant and the parties agree that
Pep Boys neither created the Boost-It nor had any involvement in manufacturing, designing,
packaging, or labeling the Boost-It. (Defendants’ Statement of Undisputed Material Facts, ¶ 5).
Pep Boys argues that the record is absent of any facts which would allow a reasonable
jury to find that Pep Boys knew or should have known of the packaging defect. Pep Boys notes
that the one acknowledged Boost-It explosion that predated Plaintiff's purchase occurred at an
AutoZone in Mexico.
Plaintiff argues that there is a factual dispute for the jury regarding whether Pep Boys
should have known it was selling Plaintiff a defective product. Plaintiff reiterates the arguments
discussed above in connection with the Defendants’ actual knowledge of the defect. First,
Boost-It labeling and instructions explain that the Boost-It’s lead-acid battery would emit
explosive gas, which should have alerted Pep Boys that the air-tight packaging was problematic.
Second, Pep Boys must have known of the ventilation concerns surrounding lead-acid batteries
because this knowledge is common amongst car mechanics and those familiar with lead-acid
batteries. Third, a visual inspection of the Boost-It plastic packaging would reveal that pressure
was building within and thus reveal the defect. (Plaintiff’s Opposition Br., 11).
Plaintiff also points to an internal Pep Boys e-mail exchange about Boost-It’s safety. On
March 9, 2007, a Pep Boys store manager reported that a Boost-It exploded in his hand.
(Plaintiff's Opposition Br., Ex. M-11). In response to this report, General Liability Manager
Timothy Hurford stated “[w]e are having a lot [sic] of these type complaints we may want to pull
these.” (Plaintiff's Opposition Br., Ex. M-9). Mr. Hurford later clarified that the “complaints”
14
were a “customer claim.” (Plaintiff's Opposition Br., Ex. M-9). Plaintiff reads Mr. Hurford's
message as indicating that Pep Boys had received numerous complaints regarding the Boost-It
by March 12, 2007, potentially including complaints that pre-dated Plaintiff’s February 17, 2007
incident. (Plaintiff's Opposition Br., Ex. M-9).
Taken together, this evidence could support a finding Pep Boys should have known that
the Boost-It had a packaging defect.
Accordingly, Pep Boys's motion for summary judgment on Count VI is denied.
IV
This Court has reviewed all submissions.
For the reasons set forth in the above
Memorandum, IT IS on this 27th day of October 2011,
ORDERED that Defendants’ Motion for Summary Judgment dated June 24, 2011
(Docket Entry 44) is granted in part and denied in part;
ORDERED that Plaintiff’s claim for punitive damages is dismissed; and
ORDERED that Counts One, Two, Four, Five, Seven, Nine and Ten6 are dismissed with
prejudice.
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
6
Please note that Counts Nine and Ten are misnumbered in the complaint as the second Count
Eight and Count Nine respectively.
15
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