Ervin v. Continental Conveyor & Equipment Co.
| Citation | 674 F.Supp.2d 709 |
| Decision Date | 23 July 2009 |
| Docket Number | Civil Action No.: 4:07-cv-3010-TLW-TER. |
| Court | U.S. District Court — District of South Carolina |
| Parties | Marcus ERVIN, Plaintiff, v. CONTINENTAL CONVEYOR & EQUIPMENT COMPANY, INC., Defendant. |
Samuel Kirkpatrick Morgan, Jr., Walker and Morgan LLC, Lexington, SC, for Plaintiff.
Angela Gilbert Strickland, Joel Haywood Smith, Richard H. Willis, Nelson Mullins Riley and Scarborough, Columbia, SC, for Defendant.
The plaintiff, Marcus Ervin ("plaintiff"), filed this action in the Court of Common Pleas, Florence County, South Carolina on July 12, 2007. The action was removed to federal court on September 5, 2007. (Doc. # 1). The matter is now before the Court for resolution of two motions for summary judgment filed by the defendant, Continental Conveyor and Equipment Company, Inc. ("defendant"). On January 8, 2009, the defendant filed its motion for summary judgment "Regarding Substantive Product Liability Issues," as well as its motion for summary judgment "Based on South Carolina's Statute of Repose for Improvements to Real Estate." (Doc. # 33, Doc. # 34). The plaintiff filed a response to each of the defendant's motions on February 12, 2009. (Doc. # 40, Doc. # 41). The defendant filed a reply to each of the plaintiffs responses on February 27, 2009. (Doc. # 43, Doc. # 44). The defendant also filed a supplemental brief on April 23, 2009. (Doc. # 48). The Court held a hearing on this matter on April 30, 2009. The Court has carefully considered the motions, memoranda, and exhibits submitted by the parties, as well as the arguments presented at the hearing. The Court has determined the relevant facts from the record presented by the parties, and drawn all reasonable factual inferences in favor of the non-moving party.
This case arises out of an industrial accident that occurred on December 2, 2005 in which the plaintiff lost his arm while working for the United States Department of Agriculture ("USDA") in Florence, South Carolina. At the time of the injury, the plaintiff was working at the Florence Cotton Classing Office, a regional facility at which the USDA assigns grades to samples of cotton that are grown in the area. As the cotton samples move through the classification process, they are transported around the USDA facility on horizontal conveyor belts. Ultimately, the cotton is transported to an incline conveyor system which transfers the cotton upward approximately 12 to 20 feet so that the loose cotton samples can be loaded into a hopper. The hopper sits directly on top of a baler that compresses the samples of loose cotton into cotton bales, which are later sold by the USDA. The hopper acts as a temporary storage compartment and feeder for the baler. The incline conveyor system has a time-delay feature that shuts down the conveyor for a short time interval, ranging from approximately 20 to 60 seconds, while the baler is in the process of compressing a cotton bale. The incline conveyor system, hopper, baler, and related components are manufactured by the defendant. The horizontal conveyor belts which transport the cotton samples throughout the Florence Cotton Classing Office are manufactured by other industrial manufacturers not involved in this litigation.
The incline conveyor that feeds the hopper and baler is housed in a steel casing and driven by a pulley system. As originally designed, the drive pulleys were completely encased in the incline conveyor system's steel housing. On the day of the accident, the plaintiff was reaching through a hole which had been cut into the metal casing of the incline conveyor system to remove cotton that had accumulated around the lower belt pulley which drives the main belt of incline conveyor system. It is undisputed that the access hole through which the plaintiff was reaching was not an original design feature, but was cut into the steel housing of the incline conveyor system by an unknown third party at some point after the initial sale of the machine to the USDA. An accumulation of cotton around the lower belt pulley causes the conveyor belt on the incline conveyor to mis-track, and USDA employees would have to clear this accumulation on a periodic basis. This clearing process was normally performed by having one employee turn off the power to the machine while the other employee reached into the access hole to remove the cotton which had accumulated around the lower belt pulley. USDA protocol called for the power supply to be "locked out" and "tagged out" prior to removing the cotton.
On the day of the accident, the plaintiff was working by himself. Without turning off or locking out the power to the machine, the plaintiff reached through the access hole to clear cotton which had accumulated around the lower belt pulley. The plaintiff was attempting to reach into the machine during the short time interval that the incline conveyor was stopped while the baler was compressing a bale. However, the plaintiff did not remove his arm before the baler finished its compression cycle, triggering the incline conveyor system to restart. When the system began operating, the plaintiffs gloved hand stuck to the surface of the pulley and was pulled into an in-running nip point on the conveyor system. This movement amputated the plaintiffs arm above the elbow.
The incline conveyor system in which the plaintiff was reaching was sold to the USDA by the defendant in 1985 as part of the sale of four similar systems to USDA Cotton Classing Offices throughout the southeastern United States. The original installation did not include a hopper. At some point in late 1994,1 the incline conveyor system was disassembled and moved to a new Cotton Classing Office in Florence, South Carolina. Although the defendant did not move the incline conveyor system, the defendant sent an employee to the USDA facility to be present during the reassembly process. In 1994, the defendant also sold the USDA additional components for the incline conveyor system including a hopper and a five-foot incline conveyor extension. These parts were added when the incline conveyor system was reinstalled at the new USDA location. It is unknown whether the access hole was cut into the steel housing of the incline conveyor system by outside contractors before or after the incline conveyor system was moved in 1994.
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment should be granted when the pleadings, responses to discovery, and the record reveal that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Though this initial responsibility rests with the moving party, when a motion for summary judgment is made and supported as provided in Rule 56, the nonmoving party must produce "specific facts showing that there is a genuine issue for trial," rather than resting upon bald assertions contained in the pleadings. Fed. R.Civ.P. 56(e); see Celotex, 477 U.S. 317, 106 S.Ct. 2548.
When considering a motion for summary judgment, a court must view the facts and inferences in the light most favorable to the non-moving party. Miltier v. Beorn, 896 F.2d 848 (4th Cir.1990); Cole v. Cole, 633 F.2d 1083 (4th Cir.1980). Summary Judgment is proper "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there [being] no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotations omitted).
The defendant has filed separate motions for summary judgment. The defendant has moved for summary judgment on the ground that recovery is barred by the South Carolina statute of repose. (Doc. # 34). The defendant has also moved for summary judgment based on various substantive product liability grounds including comparative fault, assumption of the risk, and unforeseeable modification. (Doc. # 33). The Court will address each motion in turn.
The defendant has moved for summary judgment based on the South Carolina statute of repose, asserting that the statute precludes liability for any injury stemming from the sale and manufacture of the incline conveyor system. The South Carolina statute of repose applicable to this case provides that:
[n]o actions to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property may be brought more than thirteen years after substantial completion of the improvement.2 For purposes of this section, an action based upon or arising out of the defective or unsafe condition of an improvement to real property includes:
....
(2) an action to recover damages for the negligent construction or repair of an improvement to real property;
....
(5) an action in contract or in tort or otherwise;
....
(9) an action against owners or manufacturers of components, or against any person furnishing materials, or against any person who develops real property, or who performs or furnishes the design, plans, specifications, surveying, planning, supervision, testing,...
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