Butler v. Navistar Intern. Transp. Corp.

• Decision Date: 18 October 1991
• Docket Number: Civ. A. No. 89-0064-H.
• Citation: 809 F. Supp. 1202
• Court: U.S. District Court — Western District of Virginia
• Parties: Cathy Ann BUTLER, Administratrix of the Estate of Charles Raymond Butler, Jr., deceased, Plaintiff, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORP., Defendant.

809 F. Supp. 1202

Cathy Ann BUTLER, Administratrix of the Estate of Charles Raymond Butler, Jr., deceased, Plaintiff, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORP., Defendant.

Civ. A. No. 89-0064-H.

United States District Court, W.D. Virginia, Harrisonburg Division.

October 18, 1991.

COPYRIGHT MATERIAL OMITTED

Mary Ann Barnes, Martin J. McGetrick, Chandler, Franklin & O'Bryan, Harrisonburg, VA, Peter N. Munsing, Mayerson, Gerasimowicz & Munsing, Spring City, PA, for plaintiff.

Christopher C. Spencer, McGuire, Woods, Battle & Boothe, Richmond, VA, for defendant.

MEMORANDUM OPINION

MICHAEL, District Judge.

This matter comes before the court on Navistar International Transportation Corporation's ("Navistar") motion for summary judgment. For the reasons set forth below, the court grants Navistar's motion with respect to all of plaintiff's claims.¹

BACKGROUND

The following background information is gleaned from all the pleadings, motions, depositions and affidavits filed in this case. The evidence is taken in the light most favorable to plaintiff.

On August 13, 1987 Charles Butler ("Butler") died when he was crushed by a tractor he was operating as an employee of Moore's Farm Service ("Moore's"). The tractor in question is a 1984 International Harvester² wheel type agricultural tractor. At the time the tractor was sold to Moore's, roll over protective systems ("ROPS") were standard equipment subject to a delete order. The tractor sold to Moore's did not have a ROPS.

On the day he died, Butler was replacing fence posts on a farm in Sperryville, Virginia, with two other Moore's employees, Jerry and James Eshelman. The work on this particular farm was extensive, and all three men had been working at this same job site for several days. In their depositions, both Eshelmans indicate that the farm in Sperryville was covered by many hills.

On the morning of August 13th Butler and the Eshelmans arrived at the farm to begin their fencing operations. James Eshelman, who acted as foreman, instructed Butler and Jerry to fetch a wagon the trio had been using to move fence posts. This wagon was stationed atop a hill where the men had been working the previous day. Butler drove the tractor up to the wagon while Jerry rode on either the tractor's fender or bumper. After the wagon was attached, Butler proceeded to drive the tractor back down the hill, using a route which was steeper than the one he used to reach the wagon in the first instance.

Unfortunately for Butler, the route he chose to proceed down the hill proved to be too steep. The tractor picked up speed and Butler was unable to keep it under control. The tractor made it three quarters of the way down the hill before the front wheels hit a small cow path. The tractor then flipped over, killing Butler.³

The administratrix of Butler's estate brought suit against Navistar seeking compensatory and punitive damages under the following theories: (i) breach of express and implied warranty; (ii) negligence; and (iii) strict liability.⁴ Navistar challenges this complaint with its motion for summary judgment. Specifically, Navistar asserts plaintiff has failed to adduce evidence establishing a case under any of these theories. Alternatively, Navistar states the affirmative defenses of assumption of risk and contributory negligence defeat plaintiff's claims. The court has no occasion to discuss these affirmative defenses as it finds plaintiff has failed to put forth sufficient evidence to establish a case under any of her theories of recovery.

STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure provides, in pertinent part, that a motion for summary judgment shall be granted if "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). To prevail on a motion for summary judgment, the moving party must initially show there is an absence of evidence in support of his opponent's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The non-moving party must then produce evidence, "not mere allegations or demands, which set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the non-moving party fails to produce such evidence, the "trial judge shall then grant summary judgment if there is no issue as to any material fact and the moving party is entitled to judgment as a matter of law." Id. at 250, 106 S.Ct. at 2511 (emphasis added). "There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id. at 249, 106 S.Ct. at 2511. This language indicates "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Catrett, 477 U.S. at 327, 106 S.Ct. at 2555 (citations omitted).

I.

Sufficiency of Plaintiff's Claims

1. Implied Warranty of Merchantability

The parties agree Virginia law controls in this diversity action. In Virginia, wrongful death claimants may recover for breach of implied warranty of merchantability by establishing, inter alia, that: (1) the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose; and (2) the unreasonably dangerous condition existed when the goods left the defendant's hands.⁵Bly v. Otis Elevator, 713 F.2d 1040, 1043 (4th Cir.1983). "Unreasonably dangerous" products are those: (i) defective in assembly or manufacture; (ii) imprudently designed; or (iii) not accompanied by adequate warnings about their hazardous properties. Id., citing Matthews v. Ford Motor Co., 479 F.2d 399, 400 (4th Cir.1973); Dreisonstok v. Volkswagon, A.G., 489 F.2d 1066, 1071 (4th Cir.1974), Spruill v. Boyle-Midway, 308 F.2d 79, 85-86 (4th Cir.1962).

A. Design Defect

Plaintiff claims Navistar's tractor was unreasonably dangerous because of design defects and inadequate warnings. In support of the design defect claim, plaintiff alleges many people are killed in tractor roll or tip overs and that a ROPS would prevent these deaths. Navistar does not dispute that a ROPS could have been attached to the tractor. In fact, it was standard equipment subject to a delete order from the buyer, in this case H.B. Duvall, a farm equipment dealer. Nor does Navistar dispute the allegations regarding deaths in tractor roll overs, and the safety benefits of a ROPS. Navistar has submitted to the court an insert to its operator's manual which states:

Overturns are involved in about half of the fatal tractor accidents and are responsible for many disabling injuries and much property damage. However, as the use of protective frames and crush-resistent cabs with safety (seat) belts increases, the number of serious and fatal injuries from such accidents should decrease.

Language in the Fourth Circuit's opinion in Bly, supra, appears to favor plaintiff's position. Here, plaintiff's decedent was killed while operating a lift truck for his employer. Operating the truck required the driver to stand on a small platform and drive backwards, as his view in the front would be obscured by the material he was moving. The truck itself contained a guard which extended to the driver's shin. The decedent was killed when the truck he was operating collided with a canister loaded on the front of another truck. This canister was raised off the ground, and it passed over the lift truck's shin guard and crushed the decedent against the control instruments of his lift.

The plaintiff in Bly brought suit and recovered damages under a breach of implied warranty of merchantability theory. Plaintiff's primary claim under this theory was that "the lift truck as designed was defective and `unreasonably dangerous' because its shin guards provided inadequate protection to the operator in rear-end collisions." Id. at 1043. Plaintiff supported her claim with expert and documentary evidence indicating that when the truck was manufactured and sold, "industry and government circles had recognized the need for waist-high guards on such lift trucks as a reasonable means of ensuring greater safety." Id. In rejecting the defendant's appeal from a jury verdict, the Fourth Circuit stated:

In light of this evidence suggesting that waist-high guards reflected prevailing industry views on the appropriate level of operator protection at the time this lift truck was manufactured and sold, coupled with expert testimony opining that the truck was, in this sense, defective in design, a jury could certainly conclude that a lesser standard of protection was "unreasonable" and a breach of the warranty of merchantability that proximately caused Bly's death.

Id.

Unfortunately for plaintiff, her case does not fit within the parameters of Bly. No recognized standard or government regulation required a manufacturer in 1984 to compel all of its purchasers to buy tractors with ROPS. Dalloz Dep. at 49-52. Plaintiff's own expert⁶ witness is equivocal at best in expressing why a tractor without a ROPS is defectively designed. He states, "that tractor should have had a ROPS on it when it was sold. I would prefer to see ROPS as standard equipment, but the ultimate requirement is ... in the tractor's application with the required safety equipment." Pacheco Dep. at 57.⁷ Lastly, it does not appear the a waist-high guard was standard equipment on the lift in Bly. Although this distinction is more meaningful in the context of a claim for negligent design, it illustrates the real differences between this case and Bly. In sum, there is not sufficient evidence which would allow a jury to return a verdict in plaintiff's favor for a design defect...