Burger v. Showtime Motor Sports et al

Filing 79

MEMORANDUM For the reasons discussed above, the Motion for Summary Judgment of Additional Defendant, Brewer Tire and Automotive (Doc. 52) is granted. Therefore, Third-Party Defendant Brewer Tire and Automotive is entitled to Judgment in its favor on Third-Party Plaintiffs claim against Third-Party Defendant Brewer Tire and Automotive. (See Third-Party Complaint, Doc. 4.) An appropriate Order will be entered.Signed by Honorable Richard P. Conaboy on 1/26/12. (cc, )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CINDY BURGER,

:
:CIVIL ACTION NO. 3:10-CV-1638
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
SHOWTIME MOTOR SPORTS, INC.,
:
and ROBIN RICHARDSON,
:
:
Defendants and
:
Third-Party Plaintiffs, :
:
v.
:
:
BREWER TIRE AND AUTOMOTIVE, MUDDY :
CREEK MOTOR SPORTS, HOLIDAY
:
KAMPER CO., d.b.a. CAMPING WORLD, :
SHIPP’S RV CENTER,
:
d.b.a. CAMPING WORLD RV SALES,
:
:
Third-Party Defendants. :
:
___________________________________________________________________
MEMORANDUM
Here we consider the Motion for Summary Judgment of Additional
Defendant, Brewer Tire and Automotive (Doc. 52).

This motion seeks

dismissal of all claims against Third-Party Defendant Brewer Tire
and Automotive (“Brewer”) by Third-Party Plaintiffs (original
Defendants) Showtime Motor Sports, Inc., and Robin Richardson
(“Third-Party Plaintiffs” or “Defendants”) as well as Plaintiff
Cindy Burger (“Plaintiff”).

(Docs. 52, 57.)

For the reasons

discussed below, we grant the motion.
II. Background
Plaintiff Cindy Burger filed this diversity action on August

6, 2010, alleging she was injured in an accident on September 22,
2009, on Interstate 81 Southbound in Lackawanna County,
Pennsylvania.

(Doc. 1

¶¶ 6, 12.)

Defendants Showtime Motor

Sports and Robin Richardson owned and operated a 2007 Chevrolet
Silverado with a full trailer (Navy Sim II trailer) in tow.
1 ¶ 6.)

(Doc.

Richardson was an employee of Showtime authorized to

operate the vehicle.

(Doc. 1 ¶ 5.)

Plaintiff was in a

construction zone along I-81 when a tire and wheel from Defendants’
trailer detached from the trailer, continued to travel off the
roadway into the construction zone and struck Plaintiff.
5.)

(Doc. 1 ¶

The impact caused Plaintiff to lose consciousness and resulted

in Plaintiff sustainging “severe and permanent injuries.”
¶ 6.)

(Doc. 1

Plaintiff also alleges that the dangerous condition of the

trailer and its parts was known for some time prior to the time of
Plaintiff’s injuries and Defendants had actual or constructive
knowledge of same.

(Doc. 1 ¶ 8.)

Defendants filed a two-count Third-Party Complaint against
Brewer Tire and Automotive, Muddy Creek Motor Sports (“Muddy
Creek”), and Camping World on August 17, 2010.1

(Doc. 4.)

They

make the following general allegations: Brewer supplied maintenance
and service to the 1990 Proco trailer attached to Defendants’ 2007

1

The caption has been amended to reflect that, rather than
Camping World, the correct Defendants are Shipps RV Center, LLC
d/b/a Camping World RV Sales and Holiday Kamper Company of
Columbia, LLC d/b/a Camping World RV Sales. (Docs. 30, 31.)
2

Chevrolet Silverado (Doc. 4 ¶ 4); Muddy Creek maintained and
serviced the 1990 Proco trailer (id. ¶ 5); and Camping World
maintained and serviced the 1990 Proco trailer.

Count I of the

Third-Party Complaint alleges, inter alia, that Brewer was
negligent for failing to properly service the trailer, for failing
to properly inspect the trailer, for failing to repair the
dangerous, defective, and/or deteriorated condition of the trailer,
and for allowing the trailer to remain in that condition for an
extended period of time.2

(Doc. 4 ¶ 8.)

Count II for Common Law

Indemnity/Contribution alleges that if Plaintiff was injured as
alleged, the injuries were caused solely and primarily by the
conduct of all Third-Party Defendants such that Third-Party
Defendants would be solely, jointly or severally liable.
10.)

(Doc. 4 ¶

Third-Party Defendants add that a “Common Law and/or

contractual claim is hereby made against Third-Party Defendants
Brewer Tire and Automotive, Muddy Creek Motor Sports and Camping
World.”

(Id.)

Defendants seek indemnity on all claims arising

from the litigation as well as costs and expenses associated with
the litigation.

(Doc. 4.)

All Third-Party Defendants filed cross-claims against
Defendants Showtime and Richardson and other Third-Party Defendants
seeking indemnification and/or contribution.

2

(Doc. 10 at 7-8; Doc.

Count I does not make any specific allegations of
negligence against Third-Party Defendants Muddy Creek and Camping
World.
3

25 at 6-7; Doc. 28 at 5-6.)
The facts relevant to this motion are set out in Local Rule
56.1 Statement of Material Facts in Support of Motion for Summary
Judgment of Additional Defendant, Brewer Tire and Automotive (Doc.
73) and Defendants, Showtime Motor Sports, Inc. and Robin
Richardson’s Local Rule 56.1 Statement of Material Facts in
Response to Defendant, Brewer Tire and Automotive’s Statement of
Material Facts in Support of Their Motion for Summary Judgment
(Doc. 75).

Third-Party Plaintiffs and Brewer agree that

Plaintiff’s claims revolve around a break of an axle, which caused
a tire and rim to come loose from Third-Party Plaintiff Showtime
Motor Sports, Inc.’s vehicle, impacting with Plaintiff.

(Third-

Party Defendant Brewer’s Statement of Material facts, Doc. 73 ¶ 2;
Third-Party Plaintiffs’ Statement of Material Facts, Doc. 75 ¶ 2.)
They further agree that, after the close of discovery, Showtime
produced a Liability Expert Report authored by George H. Meinschein
outlining Showtime’s position on liability in the case.
4; Doc. 75 ¶ 4.)

(Doc. 73 ¶

Brewer is not mentioned in the Expert Report.

(Doc. 73 ¶ 5; Doc. 75 ¶ 5.)

Third-Party Plaintiffs add that they

had a contractual relationship with Brewer as the supplier of the
tire involved in this matter and Plaintiff’s expert reports from
Dr. Zurad and Dr. van der Sluis provided that Plaintiff’s injuries
were a result of being hit by the tire and the wheel of the
vehicle.

(Doc. 75 ¶ 5.)

This “contractual relationship” is based

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upon Brewer’s sale of tires to Duggins Welding, an entity related
to Showtime.

(Doc. 73 ¶ 6; Doc. 75 ¶ 6.)

vehicle which had its axle break.

Brewer never saw the

(Doc. 73 ¶ 7; Doc. 75 ¶ 7.)

Third-Party Plaintiffs and Brewer dispute whether Brewer sold
Duggins tires before the relevant event: Brewer stating it did not
(Doc. 73 ¶ 8); Third-Party Plaintiffs stating they have an invoice
for August 11, 2009, that was used for the trailer in question
(Doc. 75 ¶ 8).

Brewer states that no expert has indicated there is

any duty on the part of Brewer, under the present set of
circumstances, to inspect the axle of the vehicle, even if Brewer
sold the tires ultimately used on the trailer in question.
75 ¶ 10.)

(Doc.

Third-Party Plaintiffs agree in part, stating that their

expert report does not indicate a duty on Brewer’s part but
Plaintiff’s expert report indirectly indicates that Plaintiff’s
alleged injuries were caused by the tire that impacted Plaintiff.
(Doc. 75 ¶ 10.)

Finally, Brewer states there is no evidence that a

tire sold by Brewer was actually placed on the trailer.
11.)

(Doc. 73 ¶

Third-Party Plaintiffs state there is evidence that a tire

sold by Brewer was used on the trailer at the relevant time.

(Doc.

75 ¶ 11 (citing Exh. B).)
II. Discussion
A. Summary Judgment Standard
Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with

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the affidavits, if any, show that there 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. 1997)(citing Fed. R. Civ. P. 56(c)).

"[T]his standard

provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no
genuine issue of material fact."

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.”

Kaucher v. County of

Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S.
at 248).

In determining whether a genuine issue of fact exists, a

court must resolve all factual doubts and draw all reasonable
inferences in favor of the nonmoving party.

Conoshenti v. Public

Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation
omitted).
The initial burden is on the moving party to show an absence
of a genuine issue of material fact.

The moving party may meet

this burden by “pointing out to the district court [] that there is
an absence of evidence to support the nonmoving party’s case when
the nonmoving party bears the ultimate burden of proof.”

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Celotex,

477 U.S. at 325.

The non-moving party may not rest on the bare

allegations contained in his or her pleadings, but is required by
Federal Rule of Civil Procedure 56(e) to go beyond the pleadings by
way of affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which give
rise to a genuine issue.
324 (1986).

Celotex Corp. v. Catrett, 477 U.S. 317,

When Rule 56(e) shifts the burden of proof to the non-

moving party, that party must produce evidence to show the
existence of every element essential to its case which it bears the
burden of proving at trial.

Equimark Commercial Finance Co. v.

C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987).
“In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any
weighing of evidence.”

Anderson, 477 U.S. at 255.

Therefore, when

evidentiary facts are in dispute, when the credibility of witnesses
may be in issue, or when conflicting evidence must be weighed, a
full trial is usually necessary.
B. Brewer Tire and Automotive Motion
Third-Party Defendant Brewer Tire and Automotive (“Brewer”),
argues that summary judgment is proper because Plaintiff cannot
assert a claim against Brewer pursuant to Federal Rule of Civil
Procedure 14(a)(3) and Defendants cannot assert a claim against it
because the lack of expert testimony is fatal to Third-Party
Plaintiffs’ claim against Brewer.

(Doc. 57.)

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Plaintiff does not

argue that she asserts a claim against Third-Party Defendant
Brewer.

Therefore, our discussion involves only Third-Party

Plaintiffs’ claim.

For the reasons discussed below, we conclude

summary judgment in favor of Brewer is appropriate.
Brewer’s argument in support of its motion rests on the
assertion that expert testimony is necessary to establish its
liability and neither Plaintiff’s nor Third-Party Plaintiffs’
experts have opined that Brewer had any duty which it breached or
that any action or inaction on the part of Brewer causally related
to Plaintiff’s alleged loss.

(See Doc. 57 at 5-6.)

Specifically,

Brewer argues that
in the present matter the duty of a tire and
automotive entity with reference to an
inspection of axles is beyond the ordinary
ken of laypeople. Furthermore, an analysis
as to whether or not a tire seller, even if
presumed to be required to view an axle,
would be expected to identify an allegedly
dangerous condition of the axle is similarly
a point that requires expert testimony.
(Doc. 57 at 6.)
Brewer relies upon Anders v. Puerto Rican Cars, Inc., 409 F.
App’x 539 (3d Cir. 2011), and Dambacher v. Mallis, 485 A.2d 408
(Pa. Super. 1984), abrogation on other grounds recognized by
Moroney v. General Motors Corp., 850 A.2d 629 (Pa. Super. 2004),
cases in which the appellate courts affirmed the trial courts’
decisions regarding the necessity of expert testimony where
allegations relating to car inspection, service, maintenance, or

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tire mounting were involved.

(Doc. 57 at 6-7.)

Third-Party Plaintiffs do not directly address the argument
that expert testimony is needed to establish Brewer’s liability.
(See Doc. 61.)

Rather, they argue generally that Section 323 of

the Restatement (Second) of Torts applies here and Brewer’s role in
supplying and installing the tire creates a level of liability for
Brewer.3

(Doc. 61 at 6-7 (citations omitted).)

Section 323 of the Restatement (Second) of Torts, addresses
the “Negligent Performance of Undertaking to Render Services.”
One who undertakes, gratuitously or for
consideration, to render services to another
which he should recognize as necessary for
the protection of the other’s person or
things, is subject to liability to the other
for physical harm resulting from his failure
to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care
increases the risk of such harm, or
(b) the harm is suffered because of the
other’s reliance upon the undertaking.
Restatement (Second) of Torts § 323.
Third-Party Plaintiffs maintain that here Brewer contracted
with them to provide a service for the motor vehicle involved in
this matter and they relied upon Brewer’s skill and competence “to
supply and install the tire correctly and provide a safe

3

The provision of installation services referenced in ThirdParty Plaintiffs’ brief (Doc. 61 at 7, 8) is the installation of
the tire on the wheel rim. (See Doc. 61 at 7; Brewer Dep., 21:2522:17, April 19, 2011, Doc. 61-1 at 6.)
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environment in which to perform in their normal course of
business.”

(Doc. 61 at 7.)

Based upon this contractual

relationship and reliance, Third-Party Plaintiffs conclude that
“the unexpected event of the tire coming off the vehicle which is
[sic] allegedly impacted the Plaintiff and caused personal harm to
the Plaintiff constitutes a level of liability upon Brewer Tire and
Automotive.”

(Id. at 7-8.)

Third-Party Plaintiffs also argue that Brewer should not be
able to rely on the fact that Third-Party Plaintiffs’ expert report
does not implicate Brewer directly.

(Doc. 61 at 8.)

They seem to

rely on the following quotation from Dambacher to support this
assertion: “‘ . . . it would be unfair, where a party has relied
upon a favorable ruling on evidence presented by him, to enter
final judgment against him without affording him the opportunity to
furnish competent proof of which he might have availed himself had
the evidence submitted by him been rejected.’” (Doc. 61 at 8
(quoting Dambacher, 485 A.2d 408 (citing Hershberger v.
Hershberger, 345 Pa. 439, 29 A.2d 95 (1942))).)
Brewer did not submit a reply brief and, therefore, has not
argued that § 323 does not apply in this case.

However, potential

application of § 323 does not mean that expert testimony is not
required to establish liability thereunder.
Third-Party Plaintiffs do not apply the Dambacher observation
to the facts of this case.

With the quotation provided, they

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appear to believe they are entitled to present additional expert
evidence regarding Brewer’s liability.

If this is their argument,

we reject it for two reasons: first, the principle quoted does not
apply to the procedural posture of this case; and second, the time
for discovery and submission of expert reports in this case has
ended.
Dambacher cited Hershberger as an example of a case where an
appellant claims a trial witness was unqualified.
15.

485 A.2d at 414-

Upon such an appellate finding, the Pennsylvania Supreme Court

in Hershberger had determined that the proper remedy was a new
trial.

Hershberger, 29 A.2d at 97.

Here, the case is at a far

earlier stage of the proceedings, and the issue is not the
qualifications of the parties’ experts but the substance of the
expert reports.
The record shows Third-Party Plaintiffs and Brewer agree that
Plaintiff’s claims revolve around a break of an axle, which caused
a tire and rim to come loose from Third-Party Plaintiff Showtime
Motor Sports, Inc.’s vehicle, impacting with Plaintiff.

(Third-

Party Defendant Brewer’s Statement of Material facts, Doc. 73 ¶ 2;
Third-Party Plaintiffs’ Statement of Material Facts, Doc. 75 ¶ 2.)
They further agree that, after the close of discovery, Showtime
produced a Liability Expert Report authored by George H. Meinschein
outlining Showtime’s position on liability in the case.
4; Doc. 75 ¶ 4.)

(Doc. 73 ¶

Brewer is not mentioned in the Expert Report.

11

(Doc. 73 ¶ 5; Doc. 75 ¶ 5.)

Plaintiff’s expert reports from Dr.

Zurad and Dr. van der Sluis provided that Plaintiff’s injuries were
a result of being hit by the tire and the wheel of the vehicle.
(Doc. 75 ¶ 5.)

No expert report or other evidence links the

installation of the tire on the wheel rim to the break of the axle
which experts say caused the tire and rim to come loose.

Third-

Party Plaintiffs point to no evidence which makes this link.

As

noted above, Third-Party Plaintiffs do not refute Brewer’s argument
that expert testimony would be needed to establish Brewer’s
liability in this case.

Therefore, Third-Party Plaintiffs have

failed to meet their burden of coming forth with sufficient
evidence to survive this summary judgment motion.
III. Conclusion
For the reasons discussed above, the Motion for Summary
Judgment of Additional Defendant, Brewer Tire and Automotive (Doc.
52) is granted.

Therefore, Third-Party Defendant Brewer Tire and

Automotive is entitled to Judgment in its favor on Third-Party
Plaintiffs’ claim against Third-Party Defendant Brewer Tire and
Automotive.

(See Third-Party Complaint, Doc. 4.)

An appropriate

Order will be entered.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: January 26, 2012

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