LaPlaint v. Kysor Panel Systems

Filing 81

MEMORANDUM and ORDER granting in part and denying in part 64 DFt Welbilt Walk-Ins' Motion for Summary Judgment ; GRANTED re plaintiff's negligence claim and DENIED in all other respects.Signed by Honorable James M. Munley on 12/15/10 (sm, )

LaPlaint v. Welbilt Walk-Ins, LP t/a Kysor Panel Systems

Doc. 81

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA V E L M A LAPLAINT, P la in t if f : N o . 3:06cv2246 : : (J u d g e Munley) : v. : : W E B IL T WALK-INS, LP, t/a KYSOR : P A N E L SYSTEMS, : P R O F E S S IO N A L : IN S T A L L A T IO N S , and : C L E V E L A N D CONSTRUCTION, INC., : D e fe n d a n ts : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM B e fo re the court is defendant Webilt Walk-Ins's motion for summary judgment. H a v in g been fully briefed and argued, the matter is ripe for disposition. B a c k g ro u n d T h e case involves a workplace slip-and-fall accident that occurred on March 3, 2 0 0 6 at the Wal-Mart store in Millford, Pennsylvania. On that date, plaintiff Velma L a P la in t was employed by the Wal-Mart as a "deli associate." (Defendant Webilt W a lk -In s ' Statement of Material Facts (Doc. 75) (hereinafter "defendant's statement") a t ¶ 1). Plaintiff alleges that an accumulation of ice just inside the door threshold for th e walk-in deli freezer caused her to fall, leading to serious injuries. (Id. at ¶ 3). She contends that the icy condition which caused her to fall was created by a d e fe c tiv e ly designed freezer and the defendant's negligence in not taking steps to p re v e n t ice accumulation. (Id. at ¶ 4).

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The accident in question occurred at approximately 7:30 a.m. (Id. at ¶ 11). P la in tiff was the first person in the deli freezer that morning. (Id.). She began w o rk in g , and as she did so her right foot slipped on ice in the doorway and she fell. (Id.). LaPlaint had noticed an ice puddle the width of the doorway and about 15-20" w id e as she entered the freezer. (Id. at ¶ 12). She jumped over it. (Id.). This ice p u d d le had always been present in the freezer, and Wal-Mart management was a w a re of it. (Id. at ¶ 13). Plaintiff contends that the puddle varied in size and shape, a n d that the water came from the cleaning of the floor outside the freezer; water s e e p e d in. (Plaintiff's Response to Defendant's Statement (Doc. 79) (hereinafter "p la in tiff's response") at ¶ 13). The parties disagree about whether actions­such as a tta c h in g a plate to the inside of the freezer door­could have been taken to prevent w a te r from migrating into the freezer from the cleaning process. (defendant's s ta te m e n t at ¶ 14; plaintiff's response at ¶ 14). They agree, however, that plaintiff w a s aware that this problem was a daily occurrence. (defendant's statement at ¶ 1 3 ). The process of cleaning the deli floor involved a great deal of hosing and s p ra y in g . (Id. at ¶¶ 19-20). As part of the procedure, employees would use s q u e e g e e s to move water away from the freezer door. (Id. at ¶ 19). The parties d is a g re e about how careful workers were to prevent water from entering the freezer d u rin g this process. Defendant insists that employees used hoses to spray plastic re frig e ra tio n flaps hanging in the doorway and did not check to see if water flowed

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into the freezer from this process and other cleaning methods. (Id. at ¶¶ 15-17). Plaintiff asserts that employees did not spray water directly into the cooler, and that w a te r flowed inside frequently.1 (plaintiff's response at ¶ 17). Defendant also c o n te n d s that Wal-Mart workers used a high-pressure hose to wash inside the fre e z e r, squeegeeing the subsequent water towards a floor drain. (defendant's s ta te m e n t at ¶ 21). Plaintiff denies that this procedure occurred. (plaintiff's re s p o n s e at ¶ 21). In any case, both sides agree that ice frequently accumulated in th e freezer. (defendant's statement at ¶ 30). Workers took various steps to try and re m o v e it. (Id.). According to the defendant, all of the evidence indicates that ice in the deli fre e z e r came from a result of actions to hose the freezer during cleaning, a poor s lo p e in the floor, and lax housekeeping by Wal-Mart. (Id. at ¶ 25). None of the o th e r freezers in the store had ice accumulate in them. (Id. at ¶ 27). Defendant also e m p h a s iz e s that Wal-Mart employees did not check the freezers to see if water had a c c u m u la te d inside after they cleaned. (Id. at ¶ 29). Plaintiff insists that this seeping

O n e crucial witness to this entire process is Ann Marie Henderson, a former W a l-M a rt employee. Defendant contends that she worked the night in question, and th a t she testified that as part of the cleaning process she typically sprayed water into th e freezer doorway, which would then flow into the freezer itself. (defendant's s ta te m e n t at ¶ 17). Plaintiff insists that Henderson did not work on the night in q u e s tio n , pointing to deposition testimony from Henderson where she could not re c a ll if she worked. (plaintiff's response at ¶ 18). Defendant cites to an attendance re c o rd that indicates she had worked that day. (defendant's statement at ¶ 18). According to the defendant, a notation next to her name saying "no" had been added b y a lawyer making a list of which employees still worked for Wal-Mart. (Id.). 3

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and ice accumulation came as a result of an improper hinge and gasket installed on th e freezer door. (plaintiff's response at ¶¶ 25-26). The water "infiltrated" the freezer a fte r every cleaning. (Id. at ¶ 30). From the plaintiff's perspective, no amount of im p ro v e d maintenance could have prevented the seepage problem. (Id. at ¶ 44). Defendant Cleveland Construction Company was the general contractor on th e remodeling of the Wal-Mart that transformed it into a Super Center. (defendant's s ta te m e n t at ¶ 31). The project opened in July 2006. (Id.). A subcontractor for C le v e la n d supplied the cement floor in the area near the deli. (Id. at ¶ 32). That c o n tra c to r sealed the floor. (Id.). Defendant Professional Installations later installed th e deli freezer, encountering problems with leveling the floors. (Id. at ¶ 33). Various other subcontractors and workers were involved in installing the refrigerator a n d related materials. (Id. at ¶ 34). Among them were third-party defendant ABC R e frig e ra tio n . (Id.). Wal-Mart and Cleveland Construction reviewed the installation a t the completion of the work. (Id. at ¶ 35). Jim Wetzel, assistant superintendent of C le v e la n d Construction, performed a checklist examination of the deli-bakery freezer o n September 15, 2005. (Id. at ¶ 37). According to Wetzel's checklist, 28 categories o f inspection were performed, and the panels found to be level and plumb and the d o o rs adjusted properly with "no daylight door sweep." (Id.). Defendant also c o n te n d s that Wal-Mart employed an independent testing agency to see that the p ro je c t met specifications, but no records from the testing has been produced. (Id. a t ¶ 36; plaintiff's response at ¶ 36).

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A job list generated by Kysor Panel Systems on November 16, 2005 contained a directive to adjust the door sweep for the deli bakery/freezer. (defendant's s ta te m e n t at ¶ 38). The company serviced the bakery freezer on January 31, 2006. (Id. at ¶ 39). This unit is the same one as the deli freezer in question, and no e v id e n c e existed to demonstrate water traveled under the bakery freezer door. (Id. a t ¶ 40). The parties disagree over whether the doors are identical. (plaintiff's re s p o n s e at ¶ 40). The product in question here is the "freezer door sweep." (defendant's s ta te m e n t at ¶ 41). The sweep sits at the bottom of the freezer door, and defendant s ta te s that its purpose is to "keep hot air/moisture laden air from traveling u n d e rn e a th and into the freezer and thus prevent thermal frost/ice from building up o n the floor inside." (Id.). The sweep contains a heater designed to keep as much h e a t as possible "at the point of thermal transfer." (Id.). The device is not designed to keep out water and is meant to be installed on a level slab. (Id.). Plaintiff claims th a t this device was defective because a "compressible bulb gasket and cam hinges" s h o u ld have been used to lower the door at the point of closure, compressing the g a s k e t and preventing water from seeping in. (plaintiff's response at ¶ 41). That d e fe c t, along with a floor that sloped towards the interior of the freezer rather than a w a y from it, allowed seepage. (Id.). Such devices are common and available and s h o u ld have been installed here, plaintiff claims. (Id.). Twice in a short time before the March 3, 2006 accident, Wal-Mart called ABC

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refrigeration to report water accumulating and freezing at the threshold of the deli fre e z e r. (defendant's statement at ¶ 42). ABC adjusted the door sweep and a d v is e d Wal-Mart that the problem was housekeeping; a worker allegedly was s p ra y in g inside the freezer. (Id. at ¶ 43). Fred Dollar of ABC Refrigeration told Walm a rt that the floor was not level, but sloped towards the freezer door and seep u n d e rn e a th it. (Id. at ¶ 45). Wal-Mart was advised that the door sweep would not p re v e n t water seepage, and the company promised to take action to correct the p ro b le m . (Id. at ¶ 44). According to plaintiff, Wal-Mart never found a way to prevent th is seepage until a new part, a diamond plate at the freezer threshold, was installed. (p la in tiff's response at ¶ 44). On February 27, 2006, ABC Refrigeration performed m a in te n a n c e on the door. (defendant's statement at ¶ 47). Defendant contends that A B C replaced the sweep, but plaintiff contends that the evidence shows that ABC m e re ly readjusted the door sweep to its proper place and reattached the old sweep w ith proper screws. (Id.; plaintiff's response at ¶ 47). Cleveland Construction was re s p o n s ib le for ensuring the deli freezer doorway threshold was flush, but there is no e v id e n c e that Cleveland ever checked to ensure that the doorway threshold was flu s h . (defendant's statement at ¶¶ 50-51). Plaintiff filed a complaint in this matter on November 17, 2006 (Doc. 1). She file d several amended complaints, the final on February 14, 2008 (Doc. 26). That c o m p la in t raised several counts, several of which involve the moving defendant. Count I accuses Webilt of strict products liability in the manufacture of the freezer

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door. Count II alleges negligence against Defendant Webilt for failing adequately to w a rn users about potential hazards with that freezer. Count III alleges breach of w a rra n ty against Webilt. Webilt allegedly sold a freezer that was neither m e rc h a n ta b le nor fit for a particular purpose for which it was intended. After a n s w e rs , counterclaims, and crossclaims, Defendant Webilt filed the instant motion. T h e parties then briefed the motion and the court held argument, bringing the case to its present posture. J u r is d ic tio n T h is court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U .S .C . § 1332. Plaintiff is a Pennsylvania resident. The defendants are c o rp o ra tio n s with citizenships in other states. The amount in controversy exceeds $ 7 5 ,0 0 0 . Because the court is sitting in diversity, the substantive law of P e n n s y lv a n ia shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 1 5 4 , 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). Legal Standard T h e case is before the court on defendant's motion for summary judgment. Granting summary judgment is proper if the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, if any, show that th e re is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1 9 9 7 ) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence

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of some alleged factual dispute between the parties will not defeat an otherwise p ro p e rly supported motion for summary judgment; the requirement is that there be n o genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 4 7 -4 8 (1986) (emphasis in original). In considering a motion for summary judgment, the court must examine the fa c ts in the light most favorable to the party opposing the motion. International Raw M a te ria ls , Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The b u rd e n is on the moving party to demonstrate that the evidence is such that a re a s o n a b le jury could not return a verdict for the non-moving party. Anderson, 477 U .S . at 248 (1986). A fact is material when it might affect the outcome of the suit u n d e r the governing law. Id. Where the non-moving party will bear the burden of p ro o f at trial, the party moving for summary judgment may meet its burden by s h o w in g that the evidentiary materials of record, if reduced to admissible evidence, w o u ld be insufficient to carry the non-movant's burden of proof at trial. Celotex v. C a tre tt, 477 U.S. 317, 322 (1986). Discussion T h e defendant seeks summary judgment on several grounds. The court will a d d re s s each in turn. 1 . Strict Products Liability T h e defendant first argues that the court should grant summary judgment on p la in tiff's strict products liability claim. The defendant argues that nothing in the

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evidence indicates that the product was unreasonably dangerous when it was in s ta lle d . a . Risk/Utility Factors T h is case involves a claim of strict products liability. As a preliminary matter, "th e Pennsylvania Supreme Court has remained faithful to its view that negligence c o n c e p ts have no place in a products liability trial." Habecker v. Clark Equip. Co., 36 F .3 d 278, 282 (3d Cir. 1994). Thus, "[t]he test for defectiveness is whether the `p ro d u c t left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended u s e .'" Id. (quoting Azzarello v. Black Bros. Co., 391 A.2d 1020, 1027 (Pa. 1978)). To p re v a il on a products liability claim, a plaintiff must demonstrate "that: (1) the product w a s defective, (2) the defect existed while the product was in control of the m a n u fa c tu re r, and (3) the defect was the proximate cause of the injuries." Id. at 284. Pennsylvania courts have found "that a product is defective when it is not fit for the in te n d e d use for which it was sold." Colville v. Crown Equip. Corp., 809 A.2d 916, 9 2 2 (Pa. Super. Ct. 2002). Further, "`the intended use of a product includes all those [u s e s ] which are reasonably foreseeable to the seller." Parks v. Allied Signal, 113 F .3 d 1327, 1331 (3d Cir. 1997) (quoting Pacheco v. Coats Co., Inc., 26 F.3d 418, 4 2 2 (3d Cir. 1994)) (internal quotations omitted). C o u rts in Pennsylvania have found that "strict liability allows recovery when a d e fe c tiv e product that is `unreasonably dangerous' causes harm to a user or

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consumer." Moyer v. United Dominion Indus., 473 F.3d 532, 538 (3d Cir. 2006) (c itin g Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1170 (Pa. 1995)). The decision o f whether a product is unreasonably dangerous is a question of law, and thus left to th e court rather than to the jury. Id. Therefore, "in a strict product liability action, b e fo re the case can be placed before the jury, the judge must make a threshold d e te rm in a tio n whether the defect alleged, if proven, would render the product `u n re a s o n a b ly dangerous" as the term is defined in the Restatement (Second) of T o rts § 402A." Barker v. Deere & Co., 60 F.3d 158, 166 (3d Cir. 1995). To do so, a c o u rt must "`engage in a risk-utility analysis, weighing a product's harms against its s o c ia l utility.'" Id. (quoting Surace v. Caterpillar, Inc., 111 F.3d 1039, 1044 (3d Cir. 1 9 9 7 )). A number of factors are relevant to this analysis: (1 ) The usefulness and desirability of the product­its utility to the user and to th e public as a whole; (2) The safety aspects of the product­the likelihood that 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 character o f the product without impairing its usefulness or making it too expensive to m a in ta in its utility; (5) The user's ability to avoid danger by the exercise of care in the use of the product; (6) The user's anticipated awareness of the dangers in h e re n t in the product and their avoidability, because of general public k n o w le d g e of the obvious condition of the product, or of the existence of s u ita b le warnings or instruction; and (7) The feasibility, on the part of the m a n u fa c tu re r, of spreading the loss of [sic] setting the price of the product or c a rry in g liability insurance. Id . (quoting Surace, 111 F.3d at 1046). In making this determination, "`the court must first view the evidence in the light most fa v o ra b le to the plaintiff.'" Barker, 60 F.3d at 166 (quoting Burch v. Sears, Roebuck a n d Co., 467 A.2d 615, 618-19 (Pa. Super. Ct. 1983)). The court will address each 10

of these factors in turn.2 1 . Usefulness and Desirability of the Product T h e product here in question is a walk-in freezer. More specifically, the product with an allegedly defective design is the "freezer door sweep," a device d e s ig n e d to prevent moisture and warm air from getting into the freezer from warmer a re a s outside when closed. The court finds that this device is both useful and d e s ira b le . To a large operation like Wal-Mart, a walk-in freezer is essential for s to rin g frozen and perishable products that are part of the store's business. Moving s u c h products to the sales floor is an important part of the sales operation. Since s u c h a freezer typically is located near food-preparation areas that need frequent c le a n in g to remain hygienic, a danger exists that water used in cleaning will flow into th e freezer and create a slippery, dangerous surface. Workers, as did plaintiff, could e a s ily become injured by falling in such areas. Thus, a device designed to keep w a te r from entering the freezer is both useful and desirable. 2 . The Safety Aspects of the Product P la in tiff submits the report of Robert J. Illo, an architect and professional e n g in e e r, to support her claim that the freezer suffered from an unsafe design. Illo re p o rts that he examined the product in question on April 21, 2009. (Exh. 1 to p la in tif's brief in opposition (Doc. 67) at 3) . Illo also examined depositions, design

Neither party briefed these factors. They did discuss them at oral argument. Despite this failure by the lawyers, the court is obligated to address the factors before allowing the case to go to trial. 11

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drawings, photographs, invoice records, service reports, and Wal-Mart procedures re la te d to the freezer and the door. (Id.). His report describes the design of the d o o r, concentrating on the way that the design attempts to form a seal between the b o tto m of the door and a metal plate on the floor. (Id. at 5). Illo concludes that the d e s ig n of the door contributed to the accumulation of ice inside the freezer which c a u s e d plaintiff to slip and fall. (Id. at 6). Wal-Mart employees washed the floor in th e delicatessen and "water infiltrated between the seal and the threshold" of the d o o r. (Id.). An improper sloping of the floor "allow[ed] water to dwell against the th re s h o ld " and eventually led to the ice accumulation that caused plaintiff's injuries. (Id.). Illo identifies as a defect the design of the door: defendant failed "to use a c o m p re s s ib le bulb gasket and cam hinges which lower the door at the point of c lo s u re , compressing the gasket" and preventing water from entering the freezer. (Id.). T h e court concludes that this factor weighs in favor of the plaintiff. Plaintiff's e x p e rt has concluded that the door as designed improperly allowed water to flow into th e freezer. An icy and slippery floor is always dangerous, and particularly in a place w h e re busy workers carrying items or pushing carts are required to enter frequently d u rin g the work day. While the defendant may challenge the persuasiveness of Illo's c o n c lu s io n s , or point to other facts which may undermine his claims, the court c o n c lu d e s that the report presents evidence sufficient to satisfy plaintiff's burden on th is point.

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3. The Availability of a Substitute Product Illo 's report identifies a substitute product, emphasizing that "[t]his type of hinge and gasket is common and available for use with a freezer adjacent to a wet d e p a rtm e n t." (Id.). Viewing the evidence in the light most favorable to the plaintiff, th e court concludes there is evidence that a substitute product suitable for keeping w a te r from flowing underneath the door and which would have performed the task m o re capably than defendant's design was available to replace the defective part. 4 . Ability to Eliminate Unsafe Features of the Product A c c o rd in g to Illo's report, the product could have been made safe by changing the sweep on the bottom of the door and by changing the type of hinges on that d o o r. Illo does not offer an estimate of this cost, but defendant likewise does not s u b m it evidence to demonstrate the cost of replacing the door sweep and hinges w o u ld be significant or that using a different kind of hinge and sweep would impair th e door's operation. As such, this factor weighs in the plaintiff's favor. 5 . Ability of User to Avoid Danger T h e alleged defect here causes an accumulation of ice just inside the threshold of the freezer's doorway. Such ice tends to accumulate after workers c le a n and wash the floor of the area surrounding the freezer. Some evidence also in d ic a te s that cleaning the freezer itself could lead to ice accumulation. While using a minimum of water and engaging in careful mopping­as defendant suggests­might p re v e n t pooling and flowing of wash water into the freezer, the court concludes that 13

the problem presented by the alleged defect­the inability to prevent the flow of water in to the freezer cannot be sufficiently avoided through careful use. A kitchen area re q u ire s frequent, fast mopping, and spills of water and other liquids are certainly p o s s ib le in a kitchen environment. With a door that allows water to seep into the fre e z e r, the exercise of care will not prevent frequent danger. 6. Warnings About the Danger of Product In considering the user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious c o n d itio n of the product, or of the existence of suitable warnings or instruction, the c o u rt finds that a user would not normally consider accumulated ice on the freezer's th re s h o ld a normal and obvious feature of the product. Moreover, to the extent that ic e accumulating in the entryway of the freezer could become obvious, a user re q u ire d to enter the freezer could not safely avoid that danger through any obvious m e a n s . This factor therefore weighs towards finding the design dangerous. 7. Ability of Manufacturer to Spread Loss T h e court finds that this factor weighs in favor of a finding for the plaintiff. The p ro b le m here is the lack of a gasket or other device on the bottom of the door that c re a te s a water-tight seal. As explained above, plaintiff's expert has indicated that a n alternative device exists to form this seal. No evidence has been provided to d e te rm in e the cost of this product, though the report indicates that such devices are in wide use. The court therefore finds that evidence exists that the cost of the

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additional safety measure could reasonably be spread by the manufacturer. This fa c to r likewise weighs in favor of a finding of strict products liability. b . The Risk-Utility Factors in Sum A fte r applying the risk-utility factors, the court finds that, if proven, the alleged d e fe c t would render the product unreasonably dangerous. A jury should be allowed to evaluate the report and arguments of the plaintiff's expert and determine whether th e product exhibited the design dangers alleged by the plaintiff. c . Conclusion on Strict Products Liability The defendant points to other evidence and other parties who may have c o n trib u te d to the problems caused by the freezer as well. Defendant insists that the p la in tiff's injuries were caused by a Wal-mart co-worker spraying water in the fre e z e r, an improper slope to the floor installed by another defendant, and by repairs d o n e to the door shortly before the plaintiff fell. Plaintiff points to the deposition te s tim o n y of Mike Hinkley, who allegedly performed service on the door in question. (See Deposition of Mike Hinkley, Exh. 3 to Plaintiff's Brief in Opp. (Doc. 68)) Hinkley te s tifie d that he could not recall the exact nature of the service he performed; he may h a v e replaced some screws in the door, and may have made some adjustments, but h e could not recall any specific actions. (Id. at 12-13). Plaintiff also points to e v id e n c e which calls into question whether an employee sprayed water into the fre e z e r shortly before her fall, and whether that employee was actually working on th e day of plaintiff's injury. (Deposition of Ann-Marie Henderson, Exh. 5 to plaintiff's

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brief in opp. (Doc. 68) at 43). Defendant contends that the alleged manufacturing d e fe c t was not the cause of plaintiff's injury. The evidence cited by plaintiff, the nonm o v in g party, creates a question of fact as to the cause of plaintiff's injuries. As s u c h , the court concludes that the evidence of design defect is sufficient to allow a ju ry to evaluate these questions. Defendant also argues that the product was serviced four days before the a c c id e n t by ABC, and that in this service ABC removed the original door sweep and re p la c e d that device with one manufactured by a third party. Such a change, which c o u ld not reasonably have been foreseen by the defendant, amounts to a substantial a lte ra tio n and eliminates any liability for the original manufacturer. The purpose of th e door sweep is not to stop the flow of water and the accumulated water and ice w a s caused by improper cleaning, not the door's design. Moreover, a Wal-Mart w o rk e r, Ann Marie Henderson, cleaned the freezer using a pressurized hose shortly b e fo re the injury. She left the ice in the freezer, not the defective door design. That, c o m b in e d with Cleveland Construction's negligent construction on the floor created th e dangerous condition, not defendant. Finally, plaintiff was aware of the a c c u m u la te d ice and walked across it anyway. She therefore failed to exercise re a s o n a b le care and the manufacturer cannot be liable. The court will deny the summary judgment motion on these grounds as well. As related in the background section above, there are factual disputes as to the e x te n t of the work performed on the door, as well as to the degree that negligence of

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and actions by other parties, such as those performing work on the door or Wal-Mart e m p lo y e e s , contributed to the cause of plaintiff's injuries. These disputes about w h e re to lay blame are the province of the jury. The court here finds that plaintiff has a d v a n c e evidence sufficient for a jury to exercise its judgment on this question. 2. Negligence D e fe n d a n t also seeks summary judgment on plaintiff's negligence claim. Defendant argues that plaintiff's claims against the manufacturer sound in strict p ro d u c ts liability and not in negligence. No evidence exists of general acts of n e g lig e n c e by the defendant, and summary judgment is therefore appropriate on the c la im . Plaintiff responds that Illo's expert report demonstrates that there was n e g lig e n c e in the design of the product. Therefore, an issue of fact remains as to th e existence of negligence in the case. U n d e r Pennsylvania law, negligence occurs when "`the defendant had a duty to conform to a certain standard of conduct; . . . the defendant breached that duty; [a n d ] such breach caused the injury in question; and actual loss or damage.'" W is n is k i v. Brown & Brown Ins. Co. of Pennsylvania, 906 A.2d 571, 575-76 (Pa. S u p e r. Ct. 2006) (quoting Phillips v. Cricket Lighters, 841 A.2d 1000, 1008 (Pa. 2 0 0 3 )). Plaintiff contends that defendant breached its duty to the plaintiff by failing to d e s ig n a safe product. Such a claim does not point to any conduct by the defendant in installing or manufacturing the product that caused plaintiff's injury, but instead p o in ts to the way that defendant designed the product. Plaintiff's negligence claim,

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therefore, is not a claim independent of the strict liability discussed above. As such, th e negligence claim is subsumed by the strict products liability claim. Summary ju d g m e n t is therefore appropriate on the negligence claim, and the court will grant th e motion on this point. 3 . Breach of Warranty D e fe n d a n t argues that plaintiff has not produced any evidence to support her c la im of breach of express warranty, which requires a showing of an express p ro m is e made by seller to buyer which relates to the goods. Here, defendant insists, n o evidence demonstrates that any such promises were made. Defendant also a rg u e s that no evidence exists of a breach of implied warranties of merchantability a n d fitness for particular purpose. First, defendant argues that the product p e rfo rm e d as promised, and therefore no breach of implied warranty can exist. Secondly, the warranty that defendant provided with the product stated expressly th a t defendant makes "no warranty or [sic] merchantability and no warranty of fitness fo r any particular purpose." As such, defendant argues, judgment must be granted o n this claim. T h e argument here centers on an alleged breach of implied warranty of m e rc h a n ta b ility and implied warranty of fitness for a particular purpose. A warranty o f "merchantability" "require[s] that [goods] have an inherent soundness which m a k e s them suitable for the purpose for which they are designed, that they are free fro m significant defects, that they perform in the way that goods of that kind should

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perform, and that they be of reasonable quality within expected variations and for the o rd in a ry purpose for which they are used." Gall v. Allegheny County Heath Dep't., 5 5 5 A.2d 786, 789-90 (Pa. 1989). "A warranty of fitness for a particular purpose is b a s e d upon a special reliance by the buyer on the seller to provide goods that will p e rfo rm a specific use envisaged and communicated by the buyer." Id. at 790. Plaintiff argues that the design of the freezer allowed water improperly to flow u n d e r the door, causing conditions inside the freezer to become unsafe. Such a d e fe c t meant that the freezer door was unsuitable for its intended purpose and of le s s than its intended quality. The court finds that evidence exists by which a jury c o u ld conclude that defendant delivered a product that breached the implied w a rra n ty of merchantability. As explained above, the plaintiff has presented e v id e n c e that the door, as designed, did not prevent water from seeping into the fre e z e r area, causing injury when water froze on the freezer floor. A jury could th e re fo re find that defendant provided plaintiff a door that failed to perform as such d o o rs should perform in its usual functions. The court will deny summary judgment o n this claim. C o n c lu s io n F o r the reasons stated above, the court will deny the defendant's motion on th e products liability and breach-of-warranty claims, but grant the motion on the n e g lig e n c e claim. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA V E L M A LAPLAINT, P la in t if f : N o . 3:06cv2246 : : (J u d g e Munley) : v. : : W E B IL T WALK-INS, LP, t/a KYSOR : P A N E L SYSTEMS, : P R O F E S S IO N A L : IN S T A L L A T IO N S , and : C L E V E L A N D CONSTRUCTION, INC., : D e fe n d a n ts : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER A N D NOW, to wit, this 15th day of December 2010, Defendant Webilt WalkIn s 's motion for summary judgment (Doc. 64) is hereby GRANTED in part and D E N IE D in part, as follows: 1 . The motion is GRANTED with respect to plaintiff's negligence claim; and 2. The motion is DENIED in all other respects.

B Y THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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