Edwards v. Atro SpA, 2:93-CIV-16-MC.

• Decision Date: 06 March 1995
• Docket Number: No. 2:93-CIV-16-MC.,2:93-CIV-16-MC.
• Citation: 891 F. Supp. 1074
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Dean P. EDWARDS, Plaintiff, v. ATRO SpA; International Staple and Machine Company; and Commonwealth Fastening Systems, Inc., Defendants.

891 F. Supp. 1074

Dean P. EDWARDS, Plaintiff, v. ATRO SpA; International Staple and Machine Company; and Commonwealth Fastening Systems, Inc., Defendants.

No. 2:93-CIV-16-MC.

United States District Court, E.D. North Carolina, Elizabeth City Division.

March 6, 1995.

COPYRIGHT MATERIAL OMITTED

Jay Trehy and Robert O. Jenkins, Raleigh, NC, for plaintiff.

Arnd Von Waldow and John D. Leidy, Philadelphia, PA, for defendant.

ORDER

McCOTTER, United States Magistrate Judge.

This matter came before the court for a hearing on defendants' motions for summary judgment and in limine, held as scheduled on February 28, 1995, in New Bern. Appearing for plaintiff were Jay Trehy and Robert O. Jenkins, and for defendants were Arnd von Waldow and John D. Leidy. After reviewing the pleadings, motions, and supporting materials, and after considering argument and authorities cited, the court enters the following Order.

FINDINGS OF FACT

1. This is a diversity action between plaintiff, a North Carolina resident, and defendants ATRO S.p.A. ("Atro"), an Italian corporation, and International Staple and Machine Company ("ISM"), a Pennsylvania corporation. Defendant Commonwealth Fastening Systems is a defunct Virginia corporation. Plaintiff brings this product liability action, alleging negligence in the design and manufacture of an Atro Model Helen 90C pneumatic nail gun. Plaintiff further alleges that defendants, as manufacturers and distributors, failed to adequately warn users, including plaintiff, of dangers associated with the product, and seeks compensatory and punitive damages for personal injuries received.

2. Plaintiff has alleged as follows: On July 2, 1991, plaintiff and a co-worker, Kirk Lundine, were working on a construction site of a beach house in Currituck County, North Carolina, framing a room beneath the house. Lundine was using the Atro Helen 90C nail gun, nailing above his head while he stood on a ladder. Plaintiff was on the ground, bent over, marking for placement of studs, and was working his way toward Lundine's position. Lundine completed his task, and began descending the ladder with the Atro nail gun down by his side. As he descended, the gun fired, and a nail entered into plaintiff's back. The discharge of the nail gun was unintentional. Because all of plaintiff's allegations are denied by defendants, the court cannot find the above allegations as facts prior to testimony at trial.

CONCLUSIONS OF LAW

SUMMARY JUDGMENT

Summary judgment must be granted if, after an adequate time for discovery, "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). Rule 56(c) requires an examination of the entire record including pleadings, depositions, answers to interrogatories, admission on file, and affidavits in the light most favorable to the non-moving party. The court must also consider every inference that can be drawn from this evidence. Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985).

The non-moving party, however, cannot "rest on the mere allegations" of the pleadings, but must produce "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient; there must be evidence on which the jury could reasonably find for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial," and summary judgment is appropriate. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

1. FAILURE TO WARN CLAIM

Plaintiff seeks to hold defendants liable in negligence for failing to warn or instruct about the nail gun's operation, condition, and use. Defendants assert that they did not fail to provide adequate warnings, and that in any case, any failure to warn was not, as a matter of law, the proximate cause of plaintiff's injuries. The second claim should be examined first.

"A manufacturer must properly inform users of a product's hazards, uses, and misuses or be liable for injuries resulting therefrom under some circumstances." Smith v. Selco Products, Inc., 96 N.C.App. 151, 156, 385 S.E.2d 173 (1989), cert. denied, 326 N.C. 598, 393 S.E.2d 883 (1990); Lee v. Crest Chem. Co., 583 F.Supp. 131 (M.D.N.C. 1984). A manufacturer has a continuing post-sale duty to inform users of the product of any deficiencies the manufacturer learns exist in the product. Smith v. Selco, supra.

Assuming defendants breached the duty to warn or instruct plaintiff of the dangers of the nail gun, which is a genuine factual issue, the next obstacle for plaintiff to surpass in order to recover is to prove that such a breach proximately caused his injuries. From the record before the court, he is unable to present any evidence of this proximate cause.

Defendant asserts that neither plaintiff nor Mr. Lundine read, obtained, or asked for the owner's manual for the Helen 90C nailer; plaintiff concedes this point. Defendant also points out that in depositions, plaintiff and Mr. Lundine both stated that they did not read the warning label on the Helen 90C. Any instructions they received were from other employees of the plaintiff. Plaintiff's argument is that a jury question is created by the inadequacy of the warnings — if the warnings had been adequate, they would have been read. Plaintiff relies upon the following cases for that proposition: Champs Convenience Stores v. United Chem. Co., Inc., 329 N.C. 446, 406 S.E.2d 856 (1991); and Bryant v. Adams, 116 N.C.App. 448, 448 S.E.2d 832 (1994). The distinguishing factor in both Champs and Bryant is that in those cases, there was testimony that, had plaintiff known or been informed of the dangers associated with the product, he would have changed his behavior as a result. See Champs, 329 N.C. at 450, 406 S.E.2d 856; Bryant, 116 N.C.App. at 466-67, 448 S.E.2d 832. Here, plaintiff can point to no testimony or other evidence that plaintiff or Mr. Lundine would have changed his behavior had he read or been given adequate warnings of the nail gun's propensities. In light of that absence, the court agrees with defendant, that the best crafted manual, warning, or instruction imaginable would have been a futile measure, because plaintiff or Mr. Lundine would have done nothing differently upon its receipt. Furthermore, the inference that an adequate warning would have resulted in a change of behavior is the product of speculation from the record; the court cannot permit a question to go to the jury upon mere speculation of proximate cause. Stiles v. Chloride, Inc., 668 F.Supp. 505, 507 (W.D.N.C.1987), aff'd, 856 F.2d 187 (4th Cir. 1988) (table). Defendant's motion for summary judgment on plaintiff's claim of negligence for failure to warn is GRANTED.¹

2. CLAIM OF MANUFACTURING DEFECT

Plaintiff next asserts liability in negligence for defective manufacture of the Helen 90C in question. Plaintiff's sole basis for this claim is an assertion that defendants selected improper materials for the construction of the nailer. Plaintiff's counsel stipulated at hearing that the claim was not that the nailer was assembled or manufactured in deviation from the design of the product. Defendants assert that, based on that stipulation, as well as plaintiff's answers to interrogatories (# 18 and # 25), the claim of selection of improper materials is a design defect claim, not a manufacturing defect claim. The court agrees, and defendants' motion for summary judgment on plaintiff's manufacturing defect claim is GRANTED. The discussion of evidence of selection of improper materials in proof of the design defect claim follows.

3. DESIGN DEFECT CLAIMS: MATERIALS AND DESIGN

A. SELECTION OF MATERIALS

Plaintiff claims that defendants were negligent in selecting materials to construct the Helen 90C nail gun in question, allowing wear on certain key parts of the product. Defendants argue that plaintiff's assertions are bare conclusory allegations that a different material should have been used, allegations that are not supported by plaintiff's expert witnesses' opinions and reports. Therefore, defendants assert, there are no genuine issues of material fact concerning selection of materials, and summary judgment is appropriate.

It is only in Richard Edwards' report and videotape that the subject of wear of materials in connection with design is discussed.² There, Richard Edwards states that the ability to fire nails on contactor depression alone is primarily caused by wear on a contactor part, and concludes that such wear was not only foreseeable but also allows operation of the nailer other than intended by the design. Plaintiff also points to brief questioning of defendants' experts in deposition, to the effect that the "functional design" should parallel the safety design of the nail gun, and that the nail gun under normal use should last approximately five years.

Nowhere does plaintiff indicate what materials he claims should have been used in construction of the nail gun, and can point to no metallurgical tests performed by his opinion witnesses on the materials actually used. It is a wholly unsupported conclusion that other materials should have been used. Cf. Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 354 S.E.2d 495 (1987) (expert tested materials used for strength in comparison with other materials that could have been used).

Based on this evidence, it is clear that wear or erosion of the materials used in the nail gun is relevant to plaintiff's claim that the gun could be fired by contact depression alone. Alone, however, such...