Estate of Kimmel v. Clark Equipment Co., 90-0134-H

Decision Date27 September 1991
Docket Number89-0073-H.,No. 90-0134-H,90-0134-H
Citation773 F. Supp. 828
PartiesESTATE OF Bernard C. KIMMEL, Plaintiff, v. CLARK EQUIPMENT CO., Defendant.
CourtU.S. District Court — Western District of Virginia

Peter N. Munsing, Mayerson, Gerasimowicz & Munsing, Spring City, Pa., Martin

J. McGetrick, Jr., Chandler, Franklin & O'Bryan, Charlottesville, Va., for plaintiff.

Michael T. Wharton, Wharton, Levin & Ehrmantraut, Annapolis, Md., Stanley V. Boychuck, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for defendant.


B. WAUGH CRIGLER, United States Magistrate Judge.

On October 14, 1987, Bernard Kimmel, then 15 years old, was killed when a forklift he was operating on behalf of his employer overturned. Plaintiffs have brought these now consolidated actions to recover damages arising out of that death. The only remaining claims against the sole remaining defendant, Clark Equipment Company, sound in negligence and are set forth in Count I of plaintiffs' complaint. In that count plaintiffs contend that defendant was negligent in the design, fabrication, assembly, sale and supply of the forklift, that it negligently failed to warn foreseeable users of the dangers of its operation, and that it failed to continue to improve by retrofit the warnings, danger signs and design features of the equipment. In the last category, plaintiffs allege numerous particular ways defendant failed to provide post-sale information to potential users of the dangers of the vehicle and included an allegation of negligent failure to recall and retrofit the equipment with safety devices allegedly designed and made available after the initial sale to prevent the very kind of accident that occurred when plaintiffs' decedent was trapped between the overhead guard and the ground and killed.

While defendant addressed the warranty and strict liability counts of the complaint in a motion for partial summary judgement filed well in advance of trial, just prior to trial it now attacks the sufficiency of the retrofit and warning claims by objecting in limine to the introduction of certain post-sale but pre-accident task force investigation reports dealing, inter alia, with studies made of lateral overturn accidents and the propriety of operator restraints. Clark also has objected to plaintiffs' use of evidence of other accidents that post-dated the sale of the instant forklift in 1959 including evidence of accidents occurring after the date of the accident that killed the decedent. In addition, Clark has voiced objection to the court's granting any proffered jury instruction which would tell the jury that under Virginia law it had a duty to retrofit or a continuing duty to warn independent of any duty to do so at the time of manufacture/sale. In essence, Clark seeks to exclude consideration by the jury of any claim related to retrofitting or warnings, which relief it originally sought in the Rule 12(b) defenses set out in the answer to the complaint and which it could have pressed in its motion for summary judgment, but did not. Because failure of the court to address these issues even at this late hour could lead to fatal error in the record, the court is compelled to address them now.1

In its memorandum opinion of August 12, 1991, when it addressed the dispositive motions filed not only by Clark but also by Homestead, a co-defendant who had performed some repair work on the subject forklift, the court observed that plaintiffs had failed to apprise it of any authority in Virginia for the proposition that a manufacturer, where there is no statutory or regulatory direction to do so, has a duty to retrofit a product with safety devices that are determined appropriate because of information developed after the product has been manufactured and put in the stream of commerce. Plaintiffs still cite no authority for that proposition but argue that under the facts of this case it can be shown that Clark undertook a voluntary retrofit program in the 1980's and agreed to install safety belts on its forklifts manufactured during a 15 year period preceding the date the decision to retrofit was made. The model the decedent was operating fell outside the covered class of forklifts and the period subject to the retrofit program.

It is the opinion of this court that there is no duty to retrofit under Virginia law.2 This is a far cry, however, from saying that plaintiffs will not be allowed to show by appropriate evidence, inter alia, that the proper design of the machine should have included seat belts or restraints, that such were reasonably available or that the device was negligently manufactured and sold without such restraints attached. To the extent that they can lay a proper foundation for the introduction of post-manufacture/sale but pre-accident task force documents so that they reasonably can be said to relate to the duty of the manufacturer at the time the product was produced and put into the stream of commerce to exercise reasonable care in the design and manufacture, plaintiffs will not be prohibited in limine from attempting to do so. However, the court warns that the path to the introduction of such evidence is narrow and full of obstructions. This is so because if the only thing plaintiffs can show is that a hazard was discovered after it left Clark's hands, and that at such later time Clark became aware of matters that they should not or in the exercise of reasonable care would not have been aware of at the time the product left its hands, the evidence related to Clark's discovery of that information and its resultant retrofit program will not be relevant.

As to the warning claim, the court notes that in Featherall v. Firestone, 219 Va. 949, 252 S.E.2d 358 (1979) the Supreme Court of Virginia adopted § 388 of the Restatement (Second) of Torts (1965) which places upon a manufacturer of a chattel a duty to exercise reasonable care to warn foreseeable users of dangerous conditions or facts which are likely to make the product dangerous. The court recognized that...

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13 cases
  • Johnson by Johnson v. General Motors Corp.
    • United States
    • West Virginia Supreme Court
    • November 23, 1993
    ...about improved safety features. See, e.g., Habecker v. Clark Equipment Co., 797 F.Supp. 381 (M.D.Pa.1992); Estate of Kimmel v. Clark Equipment Co., 773 F.Supp. 828 (W.D.Va.1991); and Carrizales v. Rheem Manufacturing Co., Inc., 226 Ill.App.3d 20, 168 Ill.Dec. 169, 589 N.E.2d 569 (1991), app......
  • Russell v. Wright
    • United States
    • U.S. District Court — Western District of Virginia
    • January 4, 2013
    ...589 F.Supp.2d 733 (W.D.Va.2008); McAlpin v. Leeds & Northrup Co., 912 F.Supp. 207 (W.D.Va.1996). But see Estate of Kimmel v. Clark Equip. Co., 773 F.Supp. 828 (W.D.Va.1991)(declining to apply a post-sale duty to warn under Virginia law). For the reasons set forth in the opinions cited above......
  • Fleck v. Gen. Motors LLC (In re Gen. Motors LLC Ignition Switch Litig.)
    • United States
    • U.S. District Court — Southern District of New York
    • August 15, 2016 some contrary authority. See, e.g., Ambrose v. Southworth Products Corp., 953 F.Supp. 728 (W.D.Va.1997) ; Estate of Kimmel v. Clark Equip. Co., 773 F.Supp. 828, 831 (W.D.Va.1991) ; Paschall v. Abex Corp., 2011 WL 13073287 (Va.Cir.Ct. July 26, 2011) ; Hart v. Savage, No. L–04–1663, 2006 W......
  • House v. Armour of America, Inc., 930552-CA
    • United States
    • Utah Court of Appeals
    • October 31, 1994
    ...the mid-1980's--Lt. House purchased his vest in 1981--therefore it was under no duty at that time. See Estate of Kimmell v. Clark Equip. Co., 773 F.Supp. 828, 830-31 (W.D.Va.1991) (holding existence of duty to warn must be evaluated at time product is manufactured and "Strict liability may ......
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