Gainey et al v. Lift-All Company, Inc. et al
Filing
265
MEMORANDUM OPINION AND ORDER - For the reasons discussed herein the court DENIES Defendantsmotion for partial summary judgment (see order). Signed by Magistrate Judge Charles Everingham on 8/26/2011. (ch, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
BOYCE GAINEY, et al.
vs.
LIFT-ALL COMPANY, INC. et al.
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CASE NO. 2:09-CV-284-CE
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant Lift-All Company, Inc.’s (“Defendant”) motion for
partial summary judgment against plaintiff Boyce Gainey (“Plaintiff”) (Dkt. No. 73). Defendant
argues that Plaintiff has adduced no evidence to support one or more elements of his
manufacturing defect claim. For the reasons discussed below, the court DENIES Defendant’s
motion for partial summary judgment.
I.
Background
Plaintiff’s third amended complaint alleges that, on September 20, 2007, Justin Gainey,
while working for ADS Erectors (“ADS”), was attempting to set steel beams as part of the
construction of a building. At the time of the incident, Mr. Gainey was on a ten foot ladder trying
to lock off a beam that was being lifted off the ground in a Tuflex Roundsling EN90 (the “Sling”)
sold by Industrial Mill and Maintenance Supply, Incorporated (“Industrial Mill”) and
manufactured by Defendant. As Mr. Gainey and his co-workers were lifting the steel beam, the
Sling broke. When the Sling broke, the steel beam fell and hit the ladder that Mr. Gainey was on,
knocking him off the ladder and causing his body and head to strike the beam and the concrete
foundation. The Sling has a labeled rated capacity or work load limit of up to 6,700 pounds in the
choker hold, which was being utilized the day of the incident. The steel beam being lifted when
the Sling failed was 3,500 pounds, well below the rated capacity.
Plaintiff asserts that the incident caused Mr. Gainey severe and permanent injuries.
Specifically, he was taken by care-flight to the hospital where he was diagnosed with a closed head
injury, which required a right-sided craniotomy for evacuation of an epidural hematoma.
Additionally, Mr. Gainey suffered bilateral occipital fractures, bilateral frontal, temporal and right
cerebellar contusions, a displaced comminuted fracture of the right temporal bone,
pneumocephalus, L2 vertebral body fracture, and a comminuted fracture of the right sphenoid.
Mr. Gainey has since required many months of rehabilitation and still suffers neuropsychological
impairment and cognitive impairment resulting from traumatic brain injury.
Defendant’s motion for partial summary judgment argues that Plaintiff has no evidence to
support any element of his manufacturing defect claim. Specifically, Defendant contends that
Plaintiff has no evidence to show that the Sling was defective when it left Defendant’s possession
or that any alleged defect was a producing cause of Plaintiff’s claimed injuries.
II.
Legal Standard
Summary judgment is proper if the pleadings and evidence show that “there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-55 (1986). A “genuine issue” is an issue that “can be resolved
only by a finder of fact because…[it]…may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 248. When the summary judgment movants demonstrate the absence of a
genuine dispute over any material fact, the burden shifts to the non-movant to show there is a
genuine factual issue for trial. Celotex, 477 U.S. at 323-24. The court must draw all reasonable
inferences in favor of the non-moving party and refrain from making credibility determinations or
weighing the evidence. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398 (5th Cir. 2008).
The court’s jurisdiction in this case is based on the diversity of the parties. As such, the
court must apply Texas products liability law in examining Defendant’s motion for partial
summary judgment on Plaintiff’s manufacturing defect claim. See Erie v. Tompkins, 304 U.S. 64,
78-79 (1938); see also RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857-58 (5th Cir. 2010). Under
Texas law, to recover for a manufacturing defect, a plaintiff must prove that: (1) the defendant
made a product that was defective when it left the defendant’s possession; and (2) said defect was
a producing cause of the plaintiff’s injuries. Torrington Co. v. Stutzman, 46 S.W.3d 829, 844
(Tex. 2000); See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 335 (Tex. 1998);
Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). “A product has a manufacturing
defect if its construction or quality deviates from the specifications or planned output in a way that
is unreasonably dangerous.”
Torrington, 46 S.W.3d at 844; Am. Tobacco Co. v. Grinnell, 951
S.W.2d 420, 434 (Tex. 1997).
“Both direct and circumstantial evidence may be used to establish any material fact.”
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Shaun T. Mian Corp. v.
Hewlett-Packard Co., 237 S.W.3d 851, 858 (Tex. App.—Dallas 2007, pet. denied). A plaintiff,
however, is not required to show by direct proof how the product became defective or to identify a
specific engineering or structural defect. See Shaun T., 237 S.W.3d at 858; Sipes v. Gen. Motors
Corp., 946 S.W.2d 143, 155 (Tex. App.—Texarkana 1997, writ denied); V. Mueller & Co. v.
Corley, 570 S.W.2d 140, 143 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref'd n.r.e.). If the
plaintiff “has no evidence of a specific defect in the design or manufacture of the product, he may
offer evidence of its malfunction as circumstantial proof of the product’s defect.” Gen. Motors
Corp. v. Hopkins, 548 S.W.2d 344, 349–50 (Tex. 1977), overruled in part on other grounds by
Turner v. Gen. Motors Corp., 584 S.W.2d 844, 851 (Tex. 1979); Sipes, 946 S.W.2d at 155. When
a product does not function as it is designed, and there is no evidence suggesting that anyone had
tampered with it since it left the manufacturer, there is circumstantial proof of a defect. Hopkins,
548 S.W.2d at 349–50; Sipes, 946 S.W.2d at 155; Goodyear Tire & Rubber Co. v. Rios, 143
S.W.3d 107, 112 (Tex. App.—San Antonio, 2004, pet. denied); Temple EasTex, Inc. v. Old
Orchard Creek Partners, Ltd., 848 S.W.2d 724, 732 (Tex. App.—Dallas 1992, writ denied).
A malfunction may be established by the testimony of the product’s user or operator about
the circumstances of the complained-of event. Sipes, 946 S.W.2d at 155. The mere fact that an
accident happens, however, is not sufficient proof that the product was defective. Rodriguez v.
Ed Hicks Imports, 767 S.W.2d 187, 192 (Tex. App.—Corpus Christi 1989, no writ). “The age
and use of that product during the time intervening between the purchase and malfunction will tend
to support or defeat the circumstantial weight of the malfunction as proof of original defect.”
Hopkins, 548 S.W.2d at 350.
III.
Application
In this case, Mr. Kenneth Lynn Carpenter, the owner of ADS and Mr. Gainey’s employer at
the time of the incident, testified that there were no modifications made to the Sling after ADS
acquired it from Industrial Mill. Plaintiff presented an affidavit from his engineering expert
stating that ADS acquired the Sling on May 16, 2007. Accordingly, the uncontroverted summary
judgment evidence establishes that, during the approximately five month period between ADS
acquiring the Sling and the Sling failing, the Sling was not altered. Moreover, although Plaintiff
has failed to produce any evidence as to when the Sling left the hands of Defendant, Defendant
does not deny that it manufactured the Sling and that Industrial Mill sold the Sling to ADS.
Industrial Mill’s answer to Plaintiff’s third amended complaint admits that Industrial Mill does not
alter the slings it receives from manufacturers. As such, it is reasonable to infer that the Sling was
not tampered with between the time it left Defendant and arrived at ADS. Considering this
inference along with the evidence that ADS did not alter the Sling, a jury could conclude that the
sling was not modified or altered between the time it was purchased from Defendant and the
malfunction. Furthermore, Mr. Carpenter testified that he questioned the men in Mr. Gainey’s
work crew about the accident and then recreated the circumstances under which the accident
occurred. Finally, Mr. Carpenter testified that he knew of nothing that he or his employees could
have done to contribute to the Sling’s failure.
Considering all of the evidence in the light most favorable to Plaintiff, the court concludes
that, under Texas law, Plaintiff has adduced evidence sufficient to raise a genuine issue of material
fact by circumstantial evidence as to his manufacturing defect claim. Accordingly, the court
denies Defendant’s motion for partial summary judgment.
IV.
Conclusion
For the foregoing reasons, the court DENIES Defendant’s motion for partial summary
judgment as to Plaintiff’s manufacturing defect claim.
SIGNED this 26th day of August, 2011.
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CHARLES EVERINGHAM IV
UNITED STATES MAGISTRATE JUDGE
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