MORELLO v. KENCO TOYOTA LIFT et al
MEMORANDUM SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 3/25/15. 3/27/15 ENTERED AND COPIES E-MAILED. (va, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSEPH A. MORELLO
KENCO TOYOTA LIFT, et al.
March 25, 2015
This action arises from a forklift accident that
occurred in the warehouse of Jet Plastica Industries (“Jet
The plaintiff, Joseph Morello, filed suit against
Kenco Toyota Lift; Kenco Group, individually and d/b/a and/or
t/a Kenco Toyota Lift; Kenco Material Handling Solutions, LLC,
individually and d/b/a and/or t/a Kenco Toyota Lift
(collectively, “Kenco”); and Lift Truck Technologies, Inc.
(properly known as Lift Truck Techniques, hereinafter “LTT”).
Morello brought seven claims against all four defendants: (1)
negligence; (2) strict liability 402A; (3) strict liability
402B; (4) liability under Restatement (Torts) § 293; (5) breach
of express warranty; (6) breach of implied warranty of
merchantability; and (7) breach of implied warranty and fitness
for a particular purpose.
Morello claims that the forklift
accident occurred because certain safety features, such as backup alarms, were not installed on the forklift, and argues that
the defendants should be liable because they failed to recommend
said safety features to Morello’s employer, Jet Plastica.
LTT has filed a motion for summary judgment.
response, Morello agrees that summary judgment should be granted
as to Counts 2-7.
The Court accordingly grants the motion as to
The only claim remaining against LTT is the
The Court grants LTT’s motion as to this
claim because LTT did not owe any duty to the plaintiff.
Summary Judgment Record
On July 26, 2007, Morello was injured while working at
the warehouse of Jet Plastica.
ran over Morello’s foot.
A forklift, while backing up,
The forklift at issue was sold to Jet
Plastica by Kenco in 2006.
LTT provides forklift repair services and is an
authorized forklift dealer.
It did not sell any forklifts to
Starting in 2003 or 2004, LTT began to service
Jet Plastica’s forklifts.
LTT did not perform regularly
scheduled maintenance on Jet Plastica’s forklifts until 2008.
Rather, LTT performed as-needed repairs on Jet Plastica’s
LTT did not repair or service the forklift that
injured Morello until after Morello’s accident.
109:16-19, 111:15-113:13, 240:15-241:10, 261:9-11, 299:4-301:9.
Jet Plastica did not consult LTT when Jet Plastica
purchased the forklift.
Before Morello’s accident, Jet Plastica
never asked LTT to provide safety inspections or recommendations
for the forklifts, and LTT never provided such recommendations.
Simpson Dep. 87:5-19, 299:14-17; Simpson Decl.
Summary Judgment Standard
Under Fed. R. Civ. P. 56, a party moving for summary
judgment must show that there is no genuine issue as to any
material fact and that judgment is appropriate as a matter of
Fed. R. Civ. P. 56(a).
The moving party bears the initial
burden of demonstrating the absence of any genuine issue of
Celotex Corp. v. Catrett, 477 U.S. 317, 323
Once a properly supported motion for summary judgment
is made, the burden shifts to the nonmoving party, who must set
forth specific facts showing that there is a genuine issue for
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.
Id. at 247-48.
The parties agree that Pennsylvania law governs this
state-law negligence claim.
Under Pennsylvania law, “[b]efore a
person may be subject to liability for failing to act in a given
situation, it must be established that the person has a duty to
act; if no care is due, it is meaningless to assert that a
person failed to act with due care.”
Wenrick v. Schloemann-
Siemag Aktiengesellschaft, 564 A.2d 1244, 1248 (Pa. 1989).
is a “fundamental premise that mere knowledge of a dangerous
situation, even by one who has the ability to intervene, is not
sufficient to create a duty to act.”
Whether a defendant
owes the plaintiff a duty is a question of law for the court.
Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1366 (3d Cir.
A duty to act may “arise from common law, by statute,
and by contract.”
Emerson v. Adult Community Total Services,
Inc., 842 F.Supp. 152, 155 (E.D. Pa. 1994) (citing Walker v. Pa.
Co. for Ins. on Lives and Granting Annuities, 106 A. 795, 796
Morello does not point to any statute creating a duty
in this case.
Similarly, there is no evidence supporting any
LTT did not have a written contract with Jet
Plastica, and the evidence shows that the oral contract between
the two entities provided only that LTT would repair Jet
Plastica’s forklifts on an as needed basis.
There is no
evidence that LTT agreed to perform safety inspections or
provide safety recommendations to Jet Plastica.
Finally, Morello has not pointed to any cases
establishing a common law duty on the part of a repairman or
servicer to provide warnings or safety recommendations to the
owner of a vehicle.
Indeed, there are many cases holding that
no duty is owed under similar circumstances.
Rotshteyn v. Agnati, S.P.A., 149 F.App’x 63, 65-66 (3d Cir.
2005); The Phoenix Ins. Co. v. West Jersey Air Conditioning and
Heating Co., 2010 WL 4259174, *4-5 (E.D. Pa. Oct. 26, 2010);
Blewitt v. Man Roland, Inc., 168 F.Supp.2d 466, 469-71 (E.D. Pa.
2001); Wenrick, 564 A.2d at 1248.
LTT had no affirmative duty
to recommend safety features for Jet Plastica’s forklift, and
therefore cannot be held liable for negligence.
Morello makes several arguments in opposition to LTT’s
motion for summary judgment, none of which is persuasive.
First, Morello argues that industry standards are relevant and
admissible by a plaintiff to prove negligence, and that the
question of industry standards are a question for the finder-offact.
Pl.’s Opp. 21 (citing Fox v. Keystone, 192 A. 116 (Pa.
1937); Birt v. Firstenergy Corp., 891 A.2d 1281, 1290 (Pa.
Super. Ct. 2006); Dallas v. F.M. Oxford, Inc., 552 A.2d 1109,
1113 (Pa. Super. Ct. 1989); Kubit v. Russ, 429 A.2d 703, 707
(Pa. Super. Ct. 1981)).
The plaintiff’s expert, Robert
Loderstedt, opined that LTT “failed to comply with industry
safety practices and industry standards by failing to
communicate and educate Jet Plastica that the forklifts” did not
have necessary safety equipment.
Pl.’s Opp. 17.
Although industry standards are admissible evidence in
negligence cases, they do not have bearing on the issue of
whether a duty was owed; rather, industry standards are
admissible on the issue of the standard of care.
Norton v. Ry.
Exp. Agency, Inc., 412 F.2d 112, 114 (3d Cir. 1969).
standards cannot be used to create a duty when none would
otherwise be owed.
See id.; see also Dallas, 552 A.2d at 1113
(holding that an industry standard was a question for the
finder-of-fact because the trial court had accurately stated the
Morello also argues that summary judgment should be
denied under the rule derived from Nanty-Glo v. Am. Sur. Co.,
163 A. 523, 524 (Pa. 1932), which states that summary judgment
cannot be granted if it would require the acceptance of selfserving testimony of a moving party’s witness.
procedural rule is not applicable in federal court, as summary
judgment in federal court is governed by Fed. R. Civ. P. 56.
See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427
(1996) (“Under the Erie doctrine, federal courts sitting in
diversity jurisdiction apply state substantive law and federal
Accordingly, similar arguments based on
Nanty-Glo have been roundly rejected by other federal district
See, e.g., Seeley v. Derr, 2013 WL 3776424, *3 (M.D.
Pa. July 17, 2013); Schmidt v. State Farm Ins. Co., 2011 WL
4368400, *13 (W.D. Pa. Aug. 12, 2011).
In federal court, a
motion for summary judgment can be granted based on
uncontradicted self-serving testimony of a moving party’s
An appropriate order shall issue.
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