Hernandez v. Altec Envtl. Prods., LLC

• Decision Date: 01 October 2012
• Docket Number: Case No. 10–80532–CIV.
• Citation: 903 F.Supp.2d 1350
• Parties: Guadalupe HERNANDEZ and Marlene Jeronimo, his wife, Plaintiffs, v. ALTEC ENVIRONMENTAL PRODUCTS, LLC and Altec Industries, Inc., and Asplundh Tree Expert Co., Defendants. Altec Environmental Products, LLC and Altec Industries, Inc., Cross–Plaintiffs, v. Asplundh Tree Expert Co., Cross–Defendant.
• Court: U.S. District Court — Southern District of Florida

903 F.Supp.2d 1350

Guadalupe HERNANDEZ and Marlene Jeronimo, his wife, Plaintiffs,

v.ALTEC ENVIRONMENTAL PRODUCTS, LLC and Altec Industries, Inc., and Asplundh Tree Expert Co., Defendants.

Altec Environmental Products, LLC and Altec Industries, Inc., Cross–Plaintiffs,

v.Asplundh Tree Expert Co., Cross–Defendant.

Case No. 10–80532–CIV.

United States District Court, S.D. Florida.

Oct. 1, 2012.

Joseph Jerry Slama, Krupnick Campbell Malone Buser, et al., Fort Lauderdale, FL, for Plaintiffs.

Henry Morrison Knoblock, Stephen Fraser Coxhead, Wilson Elser Moskowitz Edelman & Dicker LLP, Miami, FL, James B. Hood, Robert H. Hood, Robert H. Hood, Jr., Hood Law Firm, LLC, Charleston County, SC, for Cross–Plaintiffs/Defendants.

Mitchell Lee Lundeen, Houck Anderson P.A., Miami, FL, for Cross–Defendant.

ORDER AND OPINION ON MOTION FOR SUMMARY JUDGMENT

KENNETH A. MARRA, District Judge.

THIS CAUSE is before the Court upon Altec Environmental Products, LLC and Altec Industries, Inc.'s Motion for Summary Judgment [DE 154]. The Court has carefully considered the motion, response, reply, oral argument of counsel, and is otherwise fully advised in the premises.

On November 24, 2009, Guadalupe Hernandez (“Hernandez”), a Spanish speaking ground worker for Asplundh Tree Expert Co. (“Asplundh”), had an accident whereby a substantial portion of his right hand was severed. Hernandez was injured when he was in the process of clearing debris underneath a wood chipper which was being operated without the guard covering the in-feed roller. Plaintiffs' Third Amended Complaint (“Compl.”) ¶¶ 4, 8, 9. Hernandez and his wife have brought claims against Altec Environmental Products, LLC (“AEP”) and Altec Industries, Inc. (“Altec Industries”) based on strict product liability and negligence with respect to the design of the wood chipper, as well as claims of defective warnings and instructions and negligence in providing maintenance and operating instructions. AEP and Altec Industries move for complete summary judgment.

Undisputed Facts¹

1. The wood chipper subject to this lawsuit is a CFD 1217 hand-fed brush chipper used to reduce wood waste or wood trimmings to chips. Brian Player 8/4/11 Depo. 8.

2. Prior to the accident, Hernandez had 11 years experience working for Asplundh, with four years working with wood chippers. Hernandez 6/3/11 Depo. 28–29.

3. The subject wood chipper was designed with eight 1/2? bolts attaching a guard enclosure that covered the bottom of the housing for the in-feed roller (the safety cover). Brian Player Depo. 127. The in-feed rollers function to feed brush into the chipping mechanism. Player 8/4/11 Depo. 16.

4. On the day of the accident, there was no safety cover on the subject wood chipper. Hernandez 5/11 /11 Depo. 64; Hernandez 6/3/11 Depo. 38.

5. Hernandez was aware that Asplundh had removed the safety cover on the chipper approximately 10 weeks prior to the accident. Hernandez 5/11 /11 Depo. 64, 114; Labbe Depo. 8–9.

6. Generally Hernandez could not see whether the safety guard was on or off, but he knew when it was off because debris would then fall to the ground. Hernandez 5/11 /11 Depo. 64, 77, 116; Hernandez 6/3/11 Depo. 38. When the safety guard was off, he could see a “small part” of the chipper's internal components. Hernandez 6/3/11 Depo. 69.

7. On November 24, 2009, the day of the accident, Hernandez saw debris under the chipper, and he also noticed that the cover had been removed and he saw moving parts of the wood chipper. Hernandez 5/11 /11 Depo. 77, 91; Hernandez 6/3/11 Depo. 38. What he saw with the cover removed did not appear dangerous to him. Hernandez 6/3/11 Depo. 67–68.

8. Although Hernandez understood that moving parts can be dangerous, and that it would be unsafe to put his hand into moving parts of the wood chipper, the job he was doing required him to sweep debris underneath the exposed lower in-feed roller. Hernandez 5/11 /11 Depo. 26, 77, 92, 113; Hernandez 6/3/11 Depo. 38.

9. After chipping a pile of wood, Hernandez squatted down to clean debris underneath the chipper when the accident occurred. Hernandez 5/11 /11 Depo. 100, 102.

10. Hernandez was shown how to clear debris with his hands from underneath the chipper by his supervisor, Jean Labbe. Hernandez 5/11 /11 Depo. 84; Hernandez 6/3/11 Depo. 40–43.

11. At the time he was reaching under the chipper to remove the debris, Hernandez was not looking to see where his hand was and instead, was looking to the side of the chipper machine. Hernandez 5/11 /11 Depo. 102–103.

12. Hernandez knew that the safety cover had been removed from the wood chipper at the time of the accident, but he was not thinking about that when he reached under the chipper to remove debris. Hernandez 5/11 /11 Depo. 103; Hernandez 6/3/11 Depo. 68–69.

13. Hernandez did not know the function of the safety cover and only learned after the incident that it was for protecting people. Hernandez 6/3/11 Depo. 51, 69, 94–95. Hernandez agrees that had the safety cover been in place, the accident would not have occurred. Hernandez 5/11/11 Depo. 131.

14. Asplundh took possession of the wood chipper in early to mid–2008 to commence the demonstration (“demo”) phase prior to purchasing it. Asplundh field tested the unit for a number of months under the supervision of its general foreman Wilson Gonzalez, who utilized his ground crews. During the demo phase, the wood chipper jammed a number of times because of build up and clogging of debris within the in-feed rollers, including leafy material in between the in-feed roller and the lower access plate/guard. Wilson Gonzalez (“Gonzalez”) Depo. 70–75, 90–91.

15. Each time the unit jammed, Gonzalez notified Rory Montello (“Montello”), a service writer at Altec Industries' West Palm Beach service facility (where maintenance, repairs and services were performed for various kinds of equipment, including wood chippers). Gonzalez Depo. 91; Montello Depo. 5–9.

16. Altec Industries, Inc., and Altec Environmental Products, LLC are both wholly-owned subsidiaries of Altec, Inc., the parent holding company. Chard Depo. 11–13; Affidavit of Robert Hunter. Altec, Inc. is not a party to this lawsuit. Altec Industries and AEP are separate corporations, with facilities at different locations that produce different lines of products. Affidavit of Bryan Player ¶ 9.

17. AEP was created in 2006 and manufactures wood chippers. AEP designed, manufactured and sold the CFD 1217 wood chipper that is the subject of this law suit. Affidavit of Bryan Player ¶¶ 3, 6; Player Depo. 24, 46–47. Altec Industries did not participate in, or contribute to, the design or manufacture of the CFD 1217 wood chipper. Player Aff. ¶ 7.

18. Bryan Player (“Player”), AEP's principal engineer, was personally involved in the design of the subject chipper. Player Aff. ¶ 5.

19. AEP prepared and distributed both the Operator's Manual and the Maintenance Manual for the subject wood chipper. Player Depo. 21, 27. Player was involved in the development and design of these manuals. Player Depo. 21, 24.

20. Prior to working at AEP, Player was employed as a project engineer at Altec Industries. Player Aff. ¶ 1.

21. Keith McPherson, a prevention and product safety manager with Altec Industries, performed a design review and hazards analysis of the wood chipper. McPherson Depo. 5–12. The purpose of McPherson's evaluation was to see if hazards were adequately warned or guarded against. McPherson Depo. 56.

22. Josh Chard is director of Product and Corporate Safety for Altec, Inc. Chard Depo. 10.

Summary Judgment Standard

The Court may grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The stringent burden of establishing the absenceof a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

The moving party bears the initial responsibility of showing the Court, by reference to the record, that there are no genuine issues of material fact that should be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). When the non-moving party has the burden of proof at trial, the moving party may carry its burden at summary judgment either by presenting evidence negating an essential element of the non-moving party's claim or by pointing to specific portions of the record which demonstrate that the non-moving party cannot meet its burden of proof at trial. Clark, 929 F.2d at 606–608 (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

After the movant has met its burden under Rule 56(a), the burden of production shifts and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record ... or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A) and (B).

Essentially, as long as the non-moving party has had an ample opportunity to conduct discovery, it must...