Somerlott v. McNeilus Truck and Manufacturing, Inc.

Filing 109

ORDER granting 85 Plaintiff's Motion to Strike; granting in part and denying in part Defendant's 74 Motion for Partial Summary Judgment. Signed by Judge Marsha J. Pechman. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BENJAMIN SOMERLOTT,
Plaintiff,

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v.

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MCNEILUS TRUCK AND
MANUFACTURING INC,

CASE NO. C16-789-MJP
ORDER GRANTING PLAINTIFF’S
MOTION TO STRIKE; GRANTING
IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR
PARTIAL SUMMARY JUDGMENT

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Defendant.
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THIS MATTER comes before the Court on Defendant’s Motion for Partial Summary

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Judgment (Dkt. No. 74) and Plaintiff’s Motion to Strike (Dkt. No. 85.) Having reviewed the

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Motions, the Response (Dkt. No. 76), the Reply (Dkt. No. 80), the Praecipe (Dkt. No. 84), the

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Surreply (Dkt. No. 85) and all related papers, the Court GRANTS Plaintiff’s Motion to Strike

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and GRANTS IN PART and DENIES IN PART Defendant’s Motion for Partial Summary

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Judgment.

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Background
Plaintiff Benjamin Somerlott, a former refuse truck operator for Waste Management,
brings suit against Defendant McNeilus Truck and Manufacturing, Inc. (Dkt. No. 3.) On
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE; GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1

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October 28, 2014, Plaintiff was collecting residential recycling in a McNeilus side-loading refuse

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vehicle (the “Side Loader”). (Dkt. No. 74 at 5.) After loading the Side Loader, Plaintiff

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activated a button to empty the cart’s contents into the “hopper,” an open receptacle in the center

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of the unit. (Id. at 5-6.) Plaintiff alleges he was struck by a broken bottle ejected from the

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hopper, severing and partially severing tendons in his wrist. (Dkt. No. 3 at 3; Dkt No. 74 at 5.)

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Defendant claims it sold the Side Loader to Waste Management with a manual containing

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instructions and warnings for safe operation (the “Operator’s Manual”). (Id. at 8.) However,

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Waste Management never gave Plaintiff the Operator’s Manual, and instead trained him using its

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own self-created training materials. (Id.) Waste Management allegedly did not warn Plaintiff of

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the potential for refuse to exit the hopper. (Dkt. No. 74 at 21-22.) Nevertheless, Plaintiff

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observed “plastic bottles, tin cans, glass bottles, all kinds of stuff” exit the hopper on several

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occasions prior to the incident. (Id. at 16.) On one occasion, a pickle jar exited the hopper and

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covered him in pickle juice, and when he complained to management, he was told this was “part

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of the job.” (Id.)

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While Plaintiff concedes that the potential for refuse to exit the hopper was a “known

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danger or risk,” he contends his injury could have been prevented had an on-product warning

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identified “the risk of serious harm or death from flying objects if the outside controls were used

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without adequate protective clothing that would have barricaded the body against dangerous

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items ejected from the hopper.” (Id.; Dkt. No. 77-2 at 3.)

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Defendant claims it provided decals to Waste Management which warned of the need to

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wear protective clothing and the risk of serious injury or death while operating the equipment.

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(Dkt. No. 74 at 10; Dkt. No. 80 at 3-4.) However, it is not clear whether decals were in fact

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provided to Waste Management, or whether they were merely depicted in the Operator’s

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ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE; GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 2

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Manual. In any event, warning decals were not affixed to the Side Loader and were not seen by

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Plaintiff. (See Dkt. No. 76 at 5; Dkt. No. 84 at 1; Dkt. No. 85 at 3.)

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Plaintiff asserts claims for manufacturing and design defects, failure to warn, and breach

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of implied warranty of merchantability. (See Dkt. 3 at 4-6.) Defendant moves for partial

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summary judgment as to the manufacturing defect, failure to warn, and breach of implied

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warranty claims. (Dkt. No. 74.) Plaintiff does not oppose the motion as to the manufacturing

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and warranty claims. (Dkt. No. 76 at 6.)

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Discussion
I.

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Legal Standard
Summary judgment is proper if the pleadings, depositions, answers to interrogatories,

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admissions on file, and affidavits show that there is no genuine issue of material fact and that the

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moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears

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the initial burden to demonstrate the absence of a genuine dispute of material fact. Celotex Corp.

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v. Catrett, 477 U.S. 317, 323 (1986). A genuine dispute over a material fact exists if there is

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sufficient evidence for a reasonable jury to return a verdict for the non-movant. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 253 (1986). On a motion for summary judgment, “[t]he

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evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his

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favor.” Id. at 255.

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II.

Motion to Strike
Plaintiff moves to strike Defendant’s Objections to Plaintiff’s Evidence (Dkt. No. 82) and

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all references to on-product warnings affixed to the Side Loader. (See Dkt. No. 85.) With

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regard to the Objections, the Court finds that they are improper under the Local Rules and strikes

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them in their entirety. To the extent these objections seek to strike portions of Plaintiff’s

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ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE; GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 3

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Response (Dkt. No. 77-2), they should have been included in Defendant’s Reply. See LR 7(g)

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(“Requests to strike material contained in or attached to submissions of opposing parties shall not

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be presented in a separate motion . . .”). With regard to the references to on-product warnings,

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Defendant concedes there were no on-product warnings, and that all references thereto were

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made in error. (See Dkt. No. 84) (“[Defendant] has reviewed the record and determined that the

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warnings . . . are in-manual, rather than on-product warnings.”)

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Therefore, the Court GRANTS Plaintiffs’ Motion to Strike.
III.

Failure to Warn

Defendant moves for summary judgment as to Plaintiff’s failure to warn claim. Under

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Washington’s Product Liability Act (“WPLA”), a manufacturer may be liable for injury if its

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failure to provide adequate warnings or instructions is the proximate cause of injury. RCW

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7.72.030(1); see also Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 325-26 (1999).

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Failure to provide an adequate warning must be both the cause in fact and the legal cause of

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injury. Baughn v. Honda Motor Co., Ltd., 107 Wn.2d 127, 142 (1986). Cause in fact concerns

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the “but for” consequences of an act, and “is generally a question of fact reserved for the jury”

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unless “the facts are undisputed and the inferences therefrom are plain and incapable of

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reasonable doubt or difference of opinion.” Beard v. Mighty Lift, Inc., 224 F. Supp. 3d 1131,

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1136 (W.D. Wash. 2016) (citing Baughn, 107 Wn.2d at 142). Legal causation concerns “policy

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considerations as to how far the consequences of a defendant’s acts should extend,” and is

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“determined on the facts of each case upon mixed considerations of logic, common sense,

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justice, policy and precedent.” Id. (citing Baughn, 107 Wn.2d at 146; Anderson v. Dreiss &

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Krump Mfg. Corp., 48 Wn. App. 432, 441 (1987)).

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ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE; GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 4

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Defendant contends that summary judgment is appropriate because Plaintiff was aware of

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the risk of refuse exiting the hopper at the time of the incident, and different or more detailed

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warnings would not have prevented his injury. (Dkt. No. 74 at 9, 15-20; Dkt. No. 84 at 1.)

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Defendant contends that Waste Management assumed the duty to train Plaintiff, and that its

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failure to do so precludes a finding of legal causation. (Id. at 20-22.) Plaintiff responds that, had

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he known the extent of the risk, he would have worn proper protective clothing. (Dkt. No. 76 at

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4-6; Dkt. No. 77-2 at 2-3.) Plaintiff claims an on-product warning notifying him of the need to

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wear protective clothing would have prevented his injury. (Dkt. No. 76 at 5-6; Dkt. No. 77-2 at

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3.)

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The Court finds that questions of fact as to causation remain for the jury. A reasonable

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jury could find both that on-product warnings could have prevented Plaintiff’s injury and that

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Defendant had a non-delegable duty to provide such warnings on all of their Side Loaders.

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While Plaintiff testified that he was aware of the potential for refuse to exit the hopper, it

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is not clear that he was aware of the risk of serious injury as a result (i.e., that refuse might be

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thrown from the hopper with force and velocity so as to sever tendons). (Dkt. No. 77-2 at 2.)

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Plaintiff’s expert testified that “[t]he ejections are random and happen with no advance notice to

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the operator (id. at 11) and Defendant’s expert testified that “[a]lthough the hazard due to

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material ejection is open and obvious, injuries resulting from this accident mode are rare.” (Dkt.

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No. 75-1 at 16-17.)

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Despite conceding that there was a risk of injury, Defendant sold the Side Loader to

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Waste Management without any on-product warnings. (Dkt. No. 84 at 1.) Thus, contrary to

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Defendant’s claim, the Court does not find that the chain of legal causation was disrupted by

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Plaintiff’s failure to heed on-product warnings. (See Dkt. No. 74 at 18-19; compare Beard, 224

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ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE; GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 5

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F. Supp. 3d at 1134-35 (chain of legal causation disrupted where product contained warning

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symbol); Baughn, 107 Wn.2d at 137 (same, noting that manufacturer “may reasonably assume”

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that user will “read and heed[]” warnings on the product).) The Court also does not find that the

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chain of legal causation was disrupted by intervening negligence on the part of Waste

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Management. While Defendant contends that Waste Management’s failure to provide Plaintiff

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with the Side Loader Operator’s Manual was unforeseeable, “[t]he manufacturer bears

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responsibility for affixing an adequate warning to its product, and this duty generally is not

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delegable.” Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 814 (1987) (en banc) (citation

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omitted); see also McCrossin, Estate of McCrossin v. IMO Indus., Inc., No. C14-05382RJB,

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2015 WL 753580, at *3 (W.D. Wash. Feb. 23, 2015) (employer’s negligence not sufficient to

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obviate manufacturer’s liability unless it was unforeseeable). Any intervening negligence on the

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part of Waste Management was not “so highly extraordinary or unexpected that it can be said to

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fall without the realm of reasonable foreseeability,” Little v. PPG Indus., Inc., 19 Wn. App. 812,

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824-25 (1978), and there is no evidence in the record that Waste Management had “actual

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knowledge of the hazards inherent in the use of the product and fail[ed] to pass on such

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knowledge” to Plaintiff. Campbell, 107 Wn.2d at 829 (citing Little, 19 Wn. App. at 825.)

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Moreover, this is clearly not a case where the manufacturer had “no effective means of

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communicating its warnings to the ultimate user.” Little, 19 Wn. App. at 824.

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Therefore, the Court DENIES Defendant’s Motion for Partial Summary Judgment.

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Conclusion

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Because Defendant erroneously claimed on-product warnings were affixed to the Side
Loader, and because Defendant improperly submitted objections to Plaintiff’s Response to

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ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE; GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 6

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Defendant’s Motion for Partial Summary Judgment, the Court GRANTS Plaintiff’s Motion to

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Strike in its entirety.

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Because questions as to the adequacy of Defendant’s warnings and their role in Plaintiff’s

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injury remain for the jury, the Court DENIES Defendant’s Motion for Partial Summary

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Judgment with respect to the failure to warn claim. Because the parties do not dispute that

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summary judgment is proper as to the manufacturing and breach of warranty claims, the Court

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GRANTS Defendant’s Motion for Partial Summary Judgment with respect to these claims.

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The clerk is ordered to provide copies of this order to all counsel.
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Dated December 14, 2017.
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A

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Marsha J. Pechman
United States District Judge

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ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE; GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 7