628 F.3d 296 (7th Cir. 2010), 08-3855, Malen v. MTD Products, Inc.

Docket Nº:08-3855.
Citation:628 F.3d 296
Opinion Judge:WILLIAMS, Circuit Judge.
Party Name:Donald MALEN and Sharon Malen, Plaintiffs-Appellants, v. MTD PRODUCTS, INC. and Home Depot U.S. A., Inc., Defendants-Appellees.
Attorney:Michael W. Rathsack (argued), Attorney, Thomas A. Reed, Attorney, Chicago, IL, for Plaintiffs-Appellants. Scott J. Robinson (argued), Attorney, Wegman, Hessler, Vanderburg & O'Toole, Cleveland, OH, John P. McCorry (argued), Attorney, McVey & Parsky, Chicago, IL, for Defendants-Appellees.
Judge Panel:Before EASTERBROOK, Chief Judge, and EVANS and WILLIAMS, Circuit Judges.
Case Date:November 19, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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628 F.3d 296 (7th Cir. 2010)

Donald MALEN and Sharon Malen, Plaintiffs-Appellants,


MTD PRODUCTS, INC. and Home Depot U.S. A., Inc., Defendants-Appellees.

No. 08-3855.

United States Court of Appeals, Seventh Circuit.

November 19, 2010

Argued Oct. 27, 2009.

Rehearing and Rehearing En Banc Denied Dec. 21, 2010.

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[Copyrighted Material Omitted]

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Michael W. Rathsack (argued), Attorney, Thomas A. Reed, Attorney, Chicago, IL, for Plaintiffs-Appellants.

Scott J. Robinson (argued), Attorney, Wegman, Hessler, Vanderburg & O'Toole, Cleveland, OH, John P. McCorry (argued), Attorney, McVey & Parsky, Chicago, IL, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and EVANS and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Donald Malen slipped while getting off his reconditioned riding lawn mower and injured his foot on the rotating blade. He and his wife sued the manufacturer and seller, claiming that the mower was defective in design and construction. The district court granted summary judgment for the defendants because undisputed evidence established that Malen's own actions were the sole proximate cause of his injury. But viewing the record in the light most favorable to the plaintiffs and taking all inferences in their favor, we conclude that a jury could find that the mower was both defective and the proximate cause of Malen's injury. Therefore, we reverse the district court's grant of summary judgment in favor of the defendants and remand for further proceedings.


Before his injury Malen had operated riding lawn mowers for more than 40 years. In 2001 he purchased a Yard-Man riding mower at Home Depot that was manufactured by MTD Products in 1998 and advertised as " Reconditioned Power Equipment" with a " Full Manufacturer's Warranty." The mower was designed with a safety interlock system. One component of that system is the Operator Presence Control, or OPC, a device which kills the engine if the operator rises from the seat without first disengaging the cutting blade and setting the parking brake. A second component is the " no cut in reverse" switch, or NCR, which kills the engine if the operator shifts into reverse without first disengaging the blade. The American National Standards Institute (" ANSI" ) 1 did not make an NCR compulsory until 2003, but by 1996 the organization had mandated that riding mowers had to have an OPC that will stop the engine and fully arrest the blade within five seconds

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of being triggered. Before Malen purchased the mower, he tested it under the supervision of a Home Depot sales employee. During that test ride Malen never rose from the seat with the engine running, but it is not disputed that he operated the machine in reverse while the blade was engaged.

A label on the mower in front of the seat warns the operator to protect against death or serious injury:






Malen had read and understood these admonishments, and over the next three years he operated the mower 30 to 50 times without incident. But then in October 2004 he was mulching leaves with the mower and wedged the right front tire over a curb. He tried without success to free the machine by rocking his weight in the seat and shifting gears between forward and reverse. At that point Malen raised the cutting deck, removed his foot from the pedal which engages the blade, and started to dismount. But he did not turn off the engine or listen to confirm whether the blade had stopped spinning. It had not. As Malen rose from the seat and stepped off the mower, his left foot slipped under the cutting deck and was struck by the rotating blade. The lacerations to the sole of his foot were severe, and he will not regain full use of his foot. It is undisputed that neither the OPC nor the NCR functioned when the accident occurred.

The Malens sued MTD Products and Home Depot in the Circuit Court of Cook County, Illinois. Donald Malen asserted common-law claims for strict products liability and negligence, and his wife claimed loss of consortium. The Malens contended that the lawn mower manufactured by MTD Products and sold by Home Depot was negligently manufactured and unreasonably dangerous because its OPC was not connected and thus inoperable. They also contended that the mower was negligently designed because MTD Products had shunned a " fail safe" system that would have made the cutting blade unusable even without the OPC connected. Finally, the plaintiffs claimed that the defendants had failed to warn the operator about the defects in the mower. The defendants removed the suit to federal court under diversity jurisdiction. See 28 U.S. C. §§ 1332, 1441.

At his deposition Donald Malen gave the following account of his accident. When the right front tire dropped over the curb and became wedged against it, he tried to free the mower by shifting between forward and reverse and rocking in the seat with the engine running. When this effort was unsuccessful, Malen decided to dismount and lift the front of the mower back atop the curb. He lifted his foot from the pedal which engages the cutting blade; that effort, Malen thought, had stopped the blade, but he acknowledged the possibility that the pedal had been locked into the " on" position and that removing his foot from the pedal had not unlocked it. It was not his practice, Malen added, to dismount a riding mower with the blade spinning, but the engine was still running so he could not hear whether the blade was rotating. Malen, who did not know that the mower was designed with an OPC or

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NCR, then rose from his seat and put his left foot on the ground while swinging his right leg across the mower to the left. He slipped, and the blade caught his left foot and pulled him to the ground. He testified initially that the blade struck his boot and stopped for two to six seconds before resuming its rotation and cutting him when he tried pulling his foot away. Later in the deposition, however, Malen said " no" when specifically asked whether the blade had stopped on first contact with his boot. This apparent inconsistency was never clarified. According to Malen, the entire ordeal-from the time he drove off the curb until his foot was cut by the blade-lasted " between 10 and 20 seconds." And, he said, it was a " very short time," more than the " clap of a hand" but probably only " a couple of seconds," between the time he rose from the seat and when his foot was sliced by the blade.

The defendants dispute Malen's testimony. They rely on the treatment notes of Dr. Narendra Patel, the emergency-room surgeon who repaired the lacerations on the sole of Malen's foot. In his notes Dr. Patel wrote that Malen had tried to dislodge the mower by planting his left foot on the ground, lifting the mower by the steering wheel, and stepping on the speed control. Yet at his deposition Dr. Patel could not recall the source of this account. And he conceded that the scenario described in his treatment notes would have resulted in lacerations to the top, not the sole, of Malen's foot.

Malen did not recall telling Dr. Patel how the accident happened. And Donald Pacheco, a mechanical engineer retained by Malen, rejected the chain of events described by Dr. Patel. Pacheco opined that the riding mower could not have been lifted by simultaneously depressing the speed control (what MTD Products calls the " go" pedal) and pulling on the steering wheel. The opposing forces from these actions, Pacheco said, would have canceled each other.

Pacheco's initial inspection had verified that the mower could be operated in forward, neutral, and reverse with the cutting blade engaged and no weight in the seat. Another inspection conducted jointly with personnel from MTD Products reproduced this result, which, the parties agree, could not have happened if the OPC and NCR were functioning. Close examination disclosed that the wiring for the OPC and NCR was not connected. The contacts were grimy, so Pacheco knew that the wires had not been connected for some time. And after removing the dirt, he did not find scratches on any of the contacts, so he concluded that neither of the safety devices had been connected in the first place. Moreover, Pacheco was certain that the NCR was not connected when Home Depot sold the reconditioned machine, since Malen had run the mower in reverse with the blade engaged while testing it at the store. During the joint inspection, the wires to the OPC and the NCR were attached, and afterward both devices functioned properly. The cutting blade came to a full stop 2.6 seconds after the OPC was triggered, well below the existing (and current) ANSI limit.

Based on his inspections and review of Malen's deposition, Pacheco opined that the safety interlock system on Malen's reconditioned mower was defective. Pacheco surmised that Malen had inadvertently depressed and locked the pedal which engages the cutting blade. That pedal, had it been unlocked, would have disengaged the blade when Malen removed his foot. Still, Pacheco insisted, the OPC and NCR should have protected Malen against a blade that was locked in the " on" position. A functioning OPC, he reasoned, would have killed the engine as soon as Malen

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rose from the seat with the blade engaged. The very purpose of an OPC, Pacheco explained, is to safeguard an operator who neglects to stop the blade before dismounting, e.g., when clearing an obstacle from the path of the mower. Likewise, Pacheco continued, a functioning NCR would have shut down the engine as soon as Malen put the mower in reverse without first disengaging...

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