Filing 48


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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA F R E D A. CHAUNCEY and P A T R I C IA A. CHAUNCEY P la in t if f s v. P E C O , INC., D e fe n d a n t : : : : : : : : C I V I L ACTION N O . 08-cv-4131 MEMORANDUM S te n g e l, J. F e b r u a r y 16, 2010 In the autumn of 2006, Fred Chauncey was removing leaves from the grounds of H o llyh e d g e Estates. He was driving a tractor equipped with a "lawn vac," which was d e s ig n e d , manufactured, and sold by defendant Peco, Inc. When he noticed a hose and b lo w e r cone had become dislodged from the lawn vac, Mr. Chauncey attempted to re trie v e the hose and blower cone and his hand was drawn into the vacuum. He suffered a n amputation of his left index finger, and injury to his left middle finger and thumb, and f ile d this product liability lawsuit. Peco filed a motion for summary judgment. For the re a s o n s set forth below, I will deny the motion. I. B ack g ro u n d F re d A. Chauncey was the head of maintenance at Hollyhedge Estate, a bed-and- b re a k f a s t in New Hope, Pennsylvania. He was a groundskeeper, and was responsible for k e e p in g the 20 to 26 acre property clear of leaves. Plaintiff's Statement of Material Facts Which Present Genuine Issues for Trial and Additional Facts Which Preclude Summary J u d g m e n t at 4 [hereinafter Plaintiff's Statement of Facts]. O n September 21, 2005, Hollyhedge purchased a grass collection system ("lawn v a c " ) designed, manufactured and sold by defendant Peco, Inc. Defendant, Peco, Inc.'s S ta te m e n t of Undisputed Facts in Support of Its Motion for Summary Judgment at 10 [ h e re in a f te r Defendant's Statement of Facts]. The lawn vac was retrofitted into a Gravely " Z e ro Turn" Tractor that had previously been purchased by Hollyhedge. Id. T h e lawn vac contains several components. It has a hard plastic "boot" which fits o n to the deck of the Gravely tractor. Defendants Statement of Facts at 11; Plaintiff's S ta te m e n t of Facts at 11. A flexible intake hose, approximately three feet in length, is a tta c h e d to the boot and spans the distance between the boot and the blower cone. Id. The intake hose is affixed to the boot and the blower cone through a hose clamp. Id. The b lo w e r cone is fastened to the blower housing, which is a cast aluminum enclosure and h o u s e s the rotating impeller. Id. The impeller rotates, cutting the grass, leaves, and other d e b ris, and blowing them upward into the discharge hose. The hose spans the blower h o u s in g and collection hopper, which are mounted on the back of the tractor. Id. O n October 26, 2006, as Mr. Chauncey was using the lawn vac, he realized the la w n vac was not picking up the leaves. Plaintiff's Statement of Facts at 12; D e f e n d a n ts Statement of Facts at 13. Mr. Chauncey dismounted the lawn vac, and n o tic e d the lower hose, which still had the blower cone attached, was not attached to the 2 lawn vac. Plaintiff's Statement of Facts at 12. When Mr. Chauncey reached to pick up th e lower hose and blower cone, his left hand was drawn into the rotating impeller blade. Id.; Defendant's Statement of Facts at 17. Mr. Chauncey suffered a left index finger a m p u ta tio n , and fractures to his left thumb and middle finger. Plaintiff's Statement of F a c ts at 12; Defendant's Statement of Facts at 18. A warning affixed to the lawn vac reads: D anger K e e p hands and clothes clear! Rotating Blades! D o not remove hoses until tractor engine and vac engine h a v e been completely stopped and turned off. E x c e s siv e vibration may be due to internal blade damage. S o m e tractors may require wheel weights. D e f e n d a n t, Peco, Inc's Motion for Summary Judgment Pursuant to Fed. R. C. P. 56 at E x h . G. In addition, the operator's manual states "[s]top unit, shut off deck attachment, s e t parking brake, shut off mower engine and remove spark plug wire before removing c lo g s , removing or replacing hose, boot, blower cone, or performing any maintenance." Id. at Exh. E. The manual also states the following: W A R N IN G ! NEVER operate the unit unless the discharge guard and either the d e f le c to r assembly or the vacuum collector adapter are fastened securely in p la c e . WARNING! Do not work around the mower deck boot or the blower area until yo u are certain that the mower blades and the blower impeller have stopped ro ta tin g . W A R N IN G ! To avoid serious injury, perform maintenance on the collector. ONLY AFTER STOPPING THE MOWER"S ENGINE AND WAITING FOR A L L MOVING PARTS TO COME TO A COMPLETE STOP. Set the 3 parking brake. Always remove the ignition key before beginning maintenance. WARNING! For your own personal safety, ALWAYS mow UP and DOWN th e face of slopes and NEVER across the face. NEVER attempt to mow e x c e s s iv e ly step slopes, and use caution when turning on any slope. I d .1 P rio r to this accident, Mr. Chauncey had used the lawn vac for the fall months. The blower cone had spontaneously disengaged from the blower housing on a p p ro x im a te ly six prior occasions. Defendant's Statement of Facts at 46; Plaintiff's S ta te m e n t of Facts at 46. On the prior occasions, Mr. Chauncey reattached the blower c o n e . Defendant's Statement of Facts at 48; Plaintiff's Statement of Facts at 48. Although Mr. Chauncey usually carried a wrench, and would fix the detached blower c o n e without returning to the shop, on October 26, 2006, he did not have the wrench. Defendant's Statement of Facts at 49; Plaintiff's Statement of Fact at 49. He planned o n placing the detached hose and blower cone on the deck, and returning to the shop to f ix the lawn vac. Defendant's Statement of Facts at 50; Plaintiff's Statement of Facts at 50. Mr. Chauncey maintains these warnings did not apply to his action. He also maintains it is unclear which manual was attached to the lawn vac. Plaintiff's Statement of Facts at 11. Mr. Chauncey cites conflicting testimony from Timothy U'Selis, a sales representative for Betts Equipment Incorporated, and Mr. Peter Hall, President of Peco. Mr. U'Selis, who sold the lawn vac to Hollyhedge, testified the Owner's Manual arrived with the lawn vac. See Plaintiff's Opposition to Defendant's Motion for Summary Judgment at Exh. I at 100:25-103:4, 108:6109:23, 113:17-116:22 [hereinafter Plaintiff's Opposition]. Mr. Hall testified the operator's manual arrived with the lawn vac. See id. at Exh. F at 53:10-13. Both manuals contain the above warnings, or similar, warnings. See id. at Exh. J, Exh. K. 1 4 Peco has sold between 700 and 800 lawn vacs. Plaintiff's Statement of Facts at 5 3 ; Defendant's Statement of Facts at 58. Peco maintains it has not received any c o m p la in ts similar to Mr. Chauncey's complaint. Defendant's Statement of Facts at 555 6 , 60. Mr. Chauncey maintains there have been two prior accidents involving operators w h o suffered amputated fingers after reaching into the discharge end of the blower h o u s in g to remove clogs. Plaintiff's Statement of Dispute Facts at 54. In addition, it m a in ta in s Peco's evidence that no prior accidents occurred is not based on proper f o u n d a tio n . Id. Peco relies on the testimony of Mr. Hall, the President of Peco, and Ms. A ru n im a Dhar, the Chief Operating Officer of Peco. Defendant's Statement of Facts at 5 7 -5 8 . Mr. Hall and Ms. Dhar's testimony relies on customer comments sent in on w a rra n ty cards. Plaintiff's Statement of Dispute Facts at 54. Approximately one week after Mr. Chauncey's injury, the blower cone dislodged w h ile another employee was using the lawn vac. The employee did not realize the cone h a d dislodge, and he ran over the cone, causing it to split into three pieces. Because he d id not see "a reason to keep it," Mr. Chauncey discarded the blower cone. See P la in tif f 's Response at Exh. A at 93. II. S ta n d a rd S u m m a ry judgment is appropriate "if the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with affidavits, if any, show that there is 5 no genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" when a reasonable jury c o u ld return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is " m a te ria l" when it could affect the outcome of the case under the governing law. Id. A party seeking summary judgment initially bears responsibility for informing the c o u rt of the basis for its motion and identifying those portions of the record that it b e lie v e s demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof o n a particular issue at trial, the moving party's initial Celotex burden can be met simply b y demonstrating "to the district court that there is an absence of evidence to support the n o n -m o v in g party's case." Celotex, 477 U.S. at 325. After the moving party has met its in itia l burden, "the adverse party's response, by affidavits or otherwise as provided in this ru le , must set forth specific facts showing that there is a genuine issue for trial." FED. R. C IV. P. 56(e). Summary judgment is therefore appropriate when the non-moving party f a ils to rebut by making a factual showing that is "sufficient to establish the existence of a n element essential to that party's case, and on which that party will bear the burden of p ro o f at trial." Celotex, 477 U.S. at 322. U n d e r Rule 56 of the Federal Rules of Civil Procedure, the court must view the e v id e n c e in the record in the light most favorable to the non-moving party and draw all 6 reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. The court must d e c id e not whether the evidence unmistakably favors one side or the other, but whether a f a ir-m in d e d jury could return a verdict for the plaintiff on the evidence presented. Id. at 2 5 2 . If the non-moving party has produced more than a "mere scintilla of evidence" d e m o n s tra tin g a genuine issue of material fact, then the court may not credit the moving p a rty's version of events against the opponent, even if the quantity of the moving party's e v id e n c e far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of N. Am., In c ., 974 F.2d 1358, 1363 (3d Cir. 1992). III. W h e th e r the Lawn Vac was Unreasonably Dangerous S tric t liability allows recovery where a plaintiff is injured by a defective product th a t is "unreasonably dangerous." Moyer v. Dominion, 473 F.3d 532, 538 (3d Cir. 2007). Whether a product is "unreasonably dangerous" is a question of law to be determined by th e Court. Id.; accord Surace v. Caterpillar, Inc., 111 F.3d 1039, 1042 (3d Cir. 1997). The trial judge must "decide whether, under [the] plaintiff's averments of the facts, re c o v e ry would be justified." Donoughe v. Lincoln Elec. Co., 936 A.2d 52, 66 (Pa. S u p e r. Ct. 2007) (quoting Phillips, 665 A.2d at 1171 n.1) (alteration in original); A z z a re llo v. Black Bros. Co., Inc., 391 A.2d 1020, 1026 (Pa. 1978). Only if the facts s u rv iv e this inquiry is the case submitted to a jury to determine whether the facts support th e averments. Azzarello, 391 A.2d at 1026. 7 To determine whether a product is unreasonably dangerous, a trial judge must e n g a g e in a risk-utility analysis to weigh the products' harms against its social utility. Surace, 111 F.3d at 1044-1046. The court should weigh the following factors: (1 ) The usefulness and desirability of the product-its utility to the user and to the public as a whole; (2) The safety aspects of the product-the likelihood th a t it will cause injury, and the probable seriousness of the injury; (3) The a v a ila b ility of a substitute product which would meet the same need and not b e as unsafe; (4) The manufacturer's ability to eliminate the unsafe c h a ra c te r of the product without impairing its usefulness or making it too e x p e n s iv e to maintain its utility; (5) The user's ability to avoid danger by the e x e rc is e of care in the use of the product; (6) The user's anticipated a w a re n e s s of the dangers inherent in the product and their avoidability, b e c a u s e of general public knowledge of the obvious condition of the p ro d u c t, or of the existence of suitable warnings or instruction; and (7) The f e a s ib ility, on the part of the manufacturer, of spreading the loss of [sic] s e ttin g the price of the product or carrying liability insurance. Id . at 1046 (quoting Dambacher v. Mallis, 485 A.2d 408, 423 n.5 (Pa. Super. Ct. 1984) (o v e rru le d on other grounds)). T a k in g the plaintiff's averments as true, Mr. Chauncey has sufficiently pled the la w n tractor was unreasonably dangerous. See Plaintiff's Opposition at Exh. B. Exh. C, a n d Exh. D (plaintiff expert states three alternate designs which will not decrease utility); id . at Exh. B at 3; id. at Exh. D at 198:17-19 (maintaining Mr. Chauncey was not near the b la d e , rather his hand was sucked in). Therefore, a jury should determine whether the p ro d u c t "left the supplier's control lacking any element necessary to make it safe for its in te n d e d use or possessing any feature that renders it unsafe for its intended use." Azzarello, 391 A.2d at 1027. 8 IV. A s su m p tio n of Risk In design defect and failure to warn product liability cases, assumption of risk is a c o m p le te defense. Lonon v. Pep Boys, Manny, Moe & Jack, 538 A.2d 22, 25 (Pa. Super. C t. 1988). "[T]o prevail on an assumption of the risk defense, the defendant must show `th a t the plaintiff knew of the defect and voluntarily and unreasonably proceeded to use th e product.'" Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652, 657 (3d Cir. 1989) (q u o tin g Lonon, 538 A.2d at 25); Staymates, 527 A.2d 1040, 1046 (Pa. Super. Ct. 1987). A genuine issue of material fact exists as to whether Mr. Chauncey "knew of the d e f e c t and voluntarily and unreasonably proceeded to use the product." At his deposition, M r. Chauncey stated the blower cone had disengaged from the blower housing on six p rio r occasions, he understood the blower housing could draw items in, and understood th e implications of his failure to heed the warnings. Memorandum of Law in Support of D e f e n d a n t, Peco, Inc.'s Motion for Summary Judgment at Exh. F at 157-159 [hereinafter D e f e n d a n t's Memorandum]. However, at his deposition, Mr. Chauncey also stated he k n e w the impeller was spinning, but he "wasn't trying to attach" the cone. He "was tryin g to pick this hose up, and set it on the mower, and go to the shop, because [he] d id n 't have the tools" to repair the lawn vac with him. Plaintiff's Opposition at Exh. D at 1 4 7 :2 1 -1 4 8 :1 3 , 149:10-150:10. A genuine issue of material fact exists concerning what facts Mr. Chauncey was a w a re , and whether he believed, his conduct was placing him in danger. Whether Mr. 9 Chauncey was subjectively aware of the risk is a question of fact for the jury to decide. See Lonon, 538 A.2d at 25 (quoting Staymates, 527 A.2d at 146). Accordingly, Peco's s u m m a ry judgment motion regarding Peco's assumption of the risk defense will be d e n ie d .2 V. F a ilu re to Warn A product can be "`defective' for strict liability purposes if it is distributed without s u f f ic ie n t warnings to notify the ultimate user of the dangers inherent in the product." Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100, 102 (Pa. 1990) (quoting Sherk v . Daisy-Heddon, Etc., 540 A.2d 615 (1982)). "A warning of inherent dangers is s u f f ic ie n t if it adequately notifies the intended user of the unobvious dangers inherent in th e product." Id. (emphasis deleted). "[W]hether a warning is adequate and whether a p ro d u c t is `defective' due to inadequate warnings are questions of law to answered by the If an employee "is required to use equipment as furnished by the employer," an assumption of the risk defense is not available. Jara v. Rexworks, Inc., 718 A.2d 788, 796 (Pa. Super. Ct. 1998). Mr. Chauncey used the lawn vac during the course of his employment. Therefore, although he knew the cone continued to dislodge from the lawn vac, Mr. Chauncey argues the assumption of the risk defense cannot apply because his employer required him to use the equipment to perform his duties. However, although Mr. Chauncey used the lawn vac during the course of employment, it is unclear whether the employer required him to use the equipment. Other lawn care products, including backpack leaf blowers and push behind unit leaf blowers were on the premises, and it appears Mr. Chauncey's employer did not have a preference as to which equipment Mr. Chauncey used to care for the lawn. Reply Memorandum of Law in Further Support of Defendant, Peco, Inc.'s Motion for Summary Judgment at Exh. M at 22, 54-7. 10 2 trial judge." Id. at 102. The trial judge must "decide whether, under the plaintiff's a v e rm e n t of the facts, recovery would be justified." Id. (quoting Azzarello, 391 A.2d at 1 0 2 6 ). Only if recovery would be justified, is the case "submitted to the jury to determine w h e th e r the facts of the case support the averments of complaint." Mackowick, 575 A.2d a t 103 (quoting Azzarello, 391 A.2d at 1026). T h e lawn vac contained warnings, including a warning to keep hands and clothes c le a r of rotating blades and to not remove the hose until the engine has stopped. Defendant's Motion at Exh. C, E. Mr. Chauncey maintains Peco's warnings are in s u f f ic ie n t because they only warned against detaching the hose. See Plaintiff's M e m o ra n d u m of Law in Support of Opposition to Defendant's Motion for Summary J u d g m e n t at 18-19. The warnings did not address Mr. Chauncey's actions, i.e., placing th e displaced cone on the mower deck. Id. P e c o argues Mr. Chauncey failed to present sufficient evidence of inadequate w a rn in g s because Mr. Chauncey's expert refused to criticize the warnings, and Mr. C h a u n c e y failed to establish inadequate warnings were "both a cause-in-fact and the p ro x im a te cause of the injuries." See Defendant's Memorandum at 16-18. A lth o u g h Mr. Chauncey did state he was aware of the lawn vac's warnings, see D e f e n d a n t's Motion at Exh. F at 132-136, 150, 156-57, he also stated he did not believe h is conduct fell within those warnings, see id. at 147-48. Moreover, although Mr. C h a u n c e y's expert did not state an opinion on the warnings, he did state Mr. Chauncey's 11 conduct was foreseeable, and stated he refused to give an opinion on the warnings b e c a u s e warnings are a "last line of defense" in product safety. Defendant's Reply at E x h . N at 183, 1.2-1.15 M r. Chauncey has provided sufficient evidence to maintain a duty to warn strict lia b ility action, and the jury should determine whether the lawn vac was defective because o f inadequate warnings. VI. N e g lig e n c e Claim T o prevail on a negligence claim, a plaintiff must establish: (1) a duty or obligation re c o g n iz e d by the law, requiring the actor to conform to a certain standard of conduct; (2) a failure to conform to the applicable standard; (3) a causal connection between the c o n d u c t and the resulting injury; and (4) actual loss or damage resulting. Griggs v. BIC C o rp ., 981 F.2d 1429, 1434 (3d Cir. 1992). P e c o argues it does not owe a duty to Mr. Chauncey because a reasonable person w o u ld not have foreseen the likelihood of harm to Mr. Chauncey. Memorandum of Law in Support of Defendant, Peco, Inc.'s Motion for Summary Judgment at 18 (citing M o n a h a n , 856 F. Supp. at 965).3 In addition, it argues, even if the risk was foreseeable, it In Monahan, the United States District Court for the Eastern District of Pennsylvania, granted defendant's motion for summary judgment. The court noted the lawn tractor at issue resulted in an estimate 75 deaths per year, which was one death for every 102,000 riding mowers. Monahan, 586 F. Supp. at 966. The court then noted the defendant had chosen its design, not plaintiffs, based on safety and utility, not cost. Id. 12 3 was not an unreasonable risk pursuant to a risk-utility analysis. Id. at 19. M r. Chauncey's expert maintains the risk was foreseeable. See Plaintiff's O p p o s itio n at Exh. B at 3. In addition, the benefits of the lawn vac do not outweigh its p o s s ib le harm, especially considering Mr. Chauncey's claim that inexpensive, easy a lte rn a tiv e s are available which would not hinder the lawn vac's utility. Peco next argues Mr. Chauncey's negligence was the sole cause of the injury, and, th e re f o re , its summary judgment motion on the negligence claim should be granted. Peco's Memorandum of Law at 19. Although Mr. Chauncey's negligence may have c o n trib u te d to his injury, Peco does not present sufficient evidence to establish Mr. C h a u n c e y's negligence was the sole cause. Rather, a genuine issue of material fact exists a s to whether Mr. Chauncey was negligent, and whether his negligence was greater than P e c o 's , or the sole cause of his injury. I will deny Peco's summary judgment motion on the negligence claim. V II. B re a c h of Warranty " A n implied warranty of merchantability arises by operation of law and serves to p ro te c t buyers from loss where the goods purchased are below commercial standards." Hornberger v. General Motors Corp., 929 F. Supp. 884, 887-88 (E.D. Pa. 1996) (citing The court found the defendant's interest in safety and utility outweighed the low probability of death. Id. Unlike Monahan, Peco presented no evidence it chose its design, rather than the Mr. Chauncey's alternatives, based on safety and utility. 13 Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir. 1992)). An im p lie d warranty can be disclaimed or modified. Id. at 888. "[T]o exclude or modify the im p lie d warranty of merchantability or any part of it the language must mention m e rc h a n ta b ility and in case of a writing must be conspicuous." 13 Pa. Cons. Stat. Ann. 2 3 1 6 (b ). To determine whether a warranty has been disclaimed, courts evaluate whether th e disclaimers were in writing and were conspicuous. Borden, Inc. v. Advent Ink Co., 7 0 1 A.2d 255, 258-59 (Pa. Super. Ct. 1997). Conspicuousness is a question of law, and " [ t]h e test is whether a reasonable person against whom the modification or exclusion is to operate ought to have noticed it." Hornberger, 929 F. Supp. at 889 (quoting Thermo K in g Corp. v. Strick Corp., 467 F. Supp. 75, 77 (W.D. Pa. 1979)). To determine whether a reasonable person would have noticed a warranty disclaimer, courts consider the f o llo w in g factors: "(1) the placement of the clause in the document; (2) the size of the d is c la im e r's print; and (3) whether the disclaimer was highlighted or called to the reader's a tte n tio n by being in all caps or a different type style or color." Id. (quoting Moreno, 643 S o .2 d at 333). T h e Operator's Manual supplied with the lawn vac contains a page labeled, " P E C O Limited Liability Warranty for New Products." The page reads: N O R EPRESENTA TIO N S A D D ITIO N AL W A R R A N TIES, D ISC L A IM E R . N e ith e r PECO, Inc. Nor any company affiliated with it makes any warranties, re p re s e n ta tio n s or promises as to the quality of performance of its products o th e r than those set forth herein. Except as described above, PECO, Inc. m a k e s no other warranties AND SPECIFICALLY DISCLAIMS ANY AND 14 ALL IMPLIED W ARRANTIES M E R C H A N T A B IL IT Y . OF FITNESS AND D e f e n d a n t's Motion at Exh. E (emphasis in original).4 It is unclear, however, whether H o llyh e d g e was provided the operating manual or the owner's manual. The owner's m a n u a l does not disclaim the implied warranty of merchantability. Plaintiff's Opposition a t Exh. J at 11. It merely states, in regular type, that Peco makes no "warranties, re p re se n ta tio n s or promises as to the quality or performance of its products other than th o s e set forth herein." Id. A genuine issue of material fact exists regarding which manual Hollyhedge re c e iv e d with their lawn vac. See Plaintiff's Opposition at Exh. I at 100:25-103:4, 108:61 0 9 :2 3 , 113:17-116:22; Plaintiff's Opposition at Exh. F at 53:10-13. The manuals c o n ta in different language when discussing the warranties which apply to the product. See Plaintiff's Opposition at Exh. J; Plaintiff's Opposition at Exh. K. Therefore, I will d e n y Peco's summary judgment motion because a genuine issue of material fact exists, a n d judgment as a matter of law is not appropriate.5 This clause was on page 4 the operator's manual, and was included in the manual's discussion of the warranties. Peco highlighted and called attention to the disclaimer by placing the disclaimer in all capital letters, and in bold. Accordingly, if this manual was received, the implied warranty of merchantability likely would have been disclaimed. See Hornberger, 929 F. Supp. at 889. Mr. Chauncey argues he should not be bound by the contractual limitations because he was not the purchaser of the lawn vac. See Plaintiff's Memorandum at 20. In addition, he argues Mr. Chauncey had not read, received, or reviewed the manual. Id. Anyone injured by the defective product may sue for a breach of an implied warranty. Kagan v. Harley Davidson, Inc., 2008 WL 1815308, at *9 (E.D. Pa. Apr. 22, 2008) 15 5 4 VIII. S p o lia tio n of the Evidence P e c o argues it is entitled to summary judgment as a matter of law as a sanction for M r. Chauncey's spoliation of the evidence. S p o lia tio n is the destruction or significant alteration of evidence, or the failure to p re s e rv e property for another's use as evidence in pending or reasonably foreseeable litig a tio n . Paramount v. Pictures Corp. v. Davis, 234 F.R.D. 102, 110 (E.D. Pa. 2005) (q u o tin g Mosaid Techs., Inc. v. Samsung Elecs. Co., Ltd., 348 F. Supp. 2d 332, 3535 (D .N .J . 2004)). A party who "reasonably anticipates litigation has an affirmative duty to p re s e rv e relevant evidence." Howell v. Maytag, 168 F.R.D. 502, 505 (M.D. Pa. 1996) (c itin g Baliotis v. McNeil, 870 F. Supp. 1285, 1290 (M.D. Pa. 1994)). Sanctions for spoliation of the evidence include: "(1) dismissal of a claim or g ra n tin g judgment in favor of a prejudiced party; (2) suppression of evidence; (3) an a d v e rs e inference, referred to as the spoliation inference; (4) fines; [and] (5) attorneys' f e e s and costs." Paramount Pictures Corp., 234 F.R.D. at 110 (quoting Mosaid Techs., In c ., 348 F. Supp. 2d at 335). When considering the imposition of sanctions, courts b a la n c e the following factors: "(1) the degree of fault of the party who altered or d e s tro ye d the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) (quoting Goodman v. PPG Indus., Inc., 849 A.2d 1239, 1246 (Pa. Super. Ct. 2004)). However, because the warranty disclaimer was received by Hollyhedge, the purchaser of the lawn vac, and there is no evidence Hollyhedge was a mere conduit to another purchaser, the implied warranty would be disclaimed if defendant proved a reasonable person would have noticed the disclaimer. See Kagan, 2008 WL 1815308, at *9 n.18. 16 whether there is a lesser sanction that will avoid substantial unfairness to the opposing p a rty and, where the offending party is seriously at fault, will serve to deter such conduct b y others in the future." Paramount Pictures Corp., 234 F.R.D. at 111 (Schmid v. M ilw a u k e e Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)). A duty to preserve evidence arises where "(1) the [party] knows that litigation . . . is pending or likely; and (2) it is foreseeable that discarding the evidence would be p re ju d ic ia l to the [other party]." Creazzo v. Medtronic, Inc., 903 A.2d 24, 29 (Pa. Super. C t. 2006) (quoting Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1 2 6 3 , 1270-71 (Pa. Super. Ct. 2001)). To determine the degree of fault of the party who a lte re d or destroyed the evidence, a court must consider "two components, the extent of th e offending party's duty or responsibility to preserve the relevant evidence, and the p re s e n c e or absence of bad faith." Creazzo, 903 A.2d at 29 (citing Mount Olivet T a b e rn a c le Church, 781 A.2d at 1270. M r. Chauncey did discard relevant evidence when he threw out the allegedly d e f e c tiv e blower cone. However, Mr. Chauncey threw the blower cone out after the cone d e ta c h e d while another employee was using the lawn vac, and that employee ran the b lo w e r cone over, breaking it into three pieces. This occurred one week after Mr. C h a u n c e y's accident. Mr. Chauncey had not yet contacted a lawyer, no lawsuit was p e n d in g , and Mr. Chauncey threw the cone pieces away because he "had no reason to k e e p them." See Plaintiff's Response at Exh. A at 93. 17 Dismissal of a claim based on spoliation of the evidence is an extreme sanction, T h o m p s o n v. WCAB, 781 A.2d 1146, 1149 n.4 (Pa. 2001), and is to be used as a last re s o rt, Baliotis, 870 F. Supp. at 1289. Mr. Chauncey had not contemplated a lawsuit at th e time he discarded the blower cone, and did not act in bad faith. I will deny summary judgment based on spoliation of the evidence. A n appropriate order follows. 18

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