Nicholson v. United Technologies Corp.

• Decision Date: 11 October 1988
• Docket Number: Civ. No. H-86-1355 (PCD).
• Citation: 697 F. Supp. 598
• Parties: Chris A. NICHOLSON, v. UNITED TECHNOLOGIES CORP., et al. v. Wilhelm R. YUNGK, et al.
• Court: U.S. District Court — District of Connecticut

697 F. Supp. 598

Chris A. NICHOLSON, v. UNITED TECHNOLOGIES CORP., et al. v. Wilhelm R. YUNGK, et al.

Civ. No. H-86-1355 (PCD).

United States District Court, D. Connecticut.

October 11, 1988.

Paul M. Clyons, Norman Ebenstein, Gary R. Gold, A. Patrick Alcarez, Ebenstein & Ebenstein, P.C., Hartford, Conn., for Nicholson.

James Moher, Jack G. Steifelfest, Howard, Kohn, Sprague & Fitzgerald, Hartford, Conn., for United Technologies Corp.

James H. Throwe, East Hartford, Conn., for Chet Goralski.

Glenn T. Davis, Somers, Conn., for Donald Nordell.

Leslie C. Storm, Berman & Sable, Hartford, Patrick Boatman, Glastonbury, for Giovanni Lenoci.

William L. Ankerman, West Hartford, Conn., for Wilhelm Yungk.

Wendy L. Rome, Trial Atty., U.S. Dept. of Justice, Civil Div., Torts Branch, Aviation & Admiralty Section, Washington, D.C., for U.S.

RULING ON PENDING MOTIONS

DORSEY, District Judge.

Facts and Procedural History

On January 6, 1985, plaintiff and the four individual third-party defendants were repairing the landing gear of a CH-54B helicopter. The landing gear was manufactured by defendant/third-party plaintiff United Technologies Corporation ("UTC"). Plaintiff and third-party defendants were federal civil service technicians employed at the Army Aviation Support Facility in Windsor Locks, Connecticut. The nose landing gear allegedly exploded causing injury to plaintiff. Suit was commenced in Superior Court on August 5, 1985, alleging liability under Conn.Gen.Stat. § 52-572m, claiming negligence, breach of warranty, strict liability, and failure to warn. UTC impleaded the third-party defendants alleging that, if it was liable, third-party defendants, as the active tort-feasors were obliged to indemnify it. Third-party defendants removed the action to this court on October 8, 1986. On November 24, 1986, UTC added a fifth third-party defendant — the United States.

I. Defendant/Third-Party Plaintiff's Motion for Summary Judgment

UTC now moves that summary judgment be entered in its favor as to each count for the following reasons:

1. The claims are barred by the applicable statute of limitations (ninth affirmative defense).

2. There are no facts in dispute as to the lack of any design defect in the forward landing gear strut.

3. Plaintiff's injury was not proximately caused by any defect in the strut.

4. The doctrines of product misuse and knowing use of a product in a dangerous condition bar plaintiff's claims (first, fifth and sixth affirmative defenses).

5. The government contractor defense bars plaintiff's recovery as to any failure to warn (second and third affirmative defenses).

UTC also seeks partial summary judgment on its eighth affirmative defense claiming a right to set-off any compensation paid by the federal government pursuant to § 52-572r in the event the joint motion for summary judgment of the third-party defendants is granted as to the United States.

A. Statute of Limitations

Plaintiff has invoked Connecticut's Product Liability Act, Conn.Gen.Stat. § 52-572m, et seq. The statute of limitations applicable to such claims, § 52-577a, provides:

(a) No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered except that, subject to subsections (c), (d) and (e), no such action may be brought against any party ... later than ten years from the date that the party last parted with possession or control of the product.

....

(c) The ten-year limitation provided for in subsection (a) shall not apply to any product liability claim brought by a claimant who is not entitled to compensation under Chapter 568, provided the claimant can prove that the harm occurred during the useful safe life of the product.

UTC argues that, since the strut in question was designed and sold by it more than ten years prior to August 5, 1985, plaintiff's claims are barred under § 52-577a(a). Plaintiff counters arguing that UTC last had possession or control of the product between May and October 1982 for extensive repairs after the helicopter suffered tornado damage. Thus, they claim that they had "possession or control" of the product well within the ten year limitation period.

Evidence of a single service call and a courtesy safety check was held insufficient to establish a genuine issue of material fact as to "possession or control" under § 52-577a(a). Daily v. New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986).

Here, plaintiff has adduced sufficient facts to defeat summary judgment. Plaintiff's supporting documentation outlines the extent and degree of defendant's possession and repair of the helicopter. Contracts required UTC to inspect and repair the helicopter, including the landing gear mechanisms. See Plaintiff's Material Facts Not in Dispute at ¶ 1; Exhibit B. Further, UTC sought permission to return the helicopter before completion of all the repairs. Id. These facts are undisputed and create at least an issue of fact as to the extent of UTC's possession and control of the helicopter.

Plaintiff also argues that whether or not his injury occurred within its useful safe life is a question of fact for the trier of fact. Conn.Gen.Stat. § 52-577a(c). Plaintiff has alleged that he was not and is not entitled to compensation under the Connecticut Workers' Compensation Act; Chapter 568, Conn.Gen.Stat. § 31-275, et seq. See Plaintiff's Material Facts Not in Dispute at ¶ 2; Plaintiff's Affidavit, Exhibit A. Thus, the products liability action would not be time-barred if the product was within its useful safe life at the time of the injury. As this also presents a material question of fact, summary judgment is inappropriate. See Habenicht v. Sturm, Ruger & Co., 660 F.Supp. 52, 56 (D.Conn. 1986); Kelley v. The Goodyear Tire & Rubber Co., 700 F.Supp. 91 (D.Conn.1987), Ruling on Motion for Summary Judgment at 8. Accordingly, UTC's motion for summary judgment is denied based on the statute of limitations.

B. Design Defect

UTC claims that plaintiff has produced no admissible expert testimony to suggest a design defect in the forward landing gear strut and thus there is no material question of fact as to the claim of a defect in the strut. Summary judgment is inappropriate if plaintiff has adduced evidence which substantiates the necessary elements of his claim. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining the existence of a genuine issue, all ambiguities must be resolved and all reasonable inferences drawn in favor of the non-moving party. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987). Material questions of fact exist as to the defective design of the forward landing gear strut. Plaintiff's expert, Robert Norton, in his deposition of March 30, 1988, testified that the landing gear strut was defective because it failed to prevent or minimize clogging of the schraeder valve, resulting in captured pressure in the chamber which led to the explosion causing plaintiff's injury. See Deposition of Norton at 39-40, 89. Mr. Norton's opinion was based on the accident reports, the maintenance manual, and technical drawings. Id. at 41-42. From this it could be found that the strut design was defective. Trial will be necessary to resolve that issue.

UTC argues that Mr. Norton's opinion should not be considered because in his deposition he disclaimed the defect for which he was disclosed as a supportive expert. Plaintiff disclosed that Mr. Norton's opinion was "that the location and design of the air filler/vent valve ... is such as to be subject to clogging and it need not have been so, if properly designed." Plaintiff's Supplemental Discovery Response at 1. The isolated excerpts provided by UTC do not require a finding that Mr. Norton disclaimed the vent valve defect about which he was to testify. Mr. Norton did testify that the schraeder valve was defectively designed in that it was subject to clogging. This opinion is consistent with plaintiff's disclosure of expert testimony. Although portions of Mr. Norton's depositions may discredit his opinion, his credibility is to be decided by the trier of fact and not on a motion for summary judgment. Since issues of fact exist on plaintiff's design defect claims, UTC's motion for summary judgment is denied.

C. Proximate Cause

UTC first claims that there is no evidence that any defect in the design of the vent valve actually contributed to plaintiff's injuries. Second, it argues that the condition of the valve was known to plaintiff and his co-workers, whose intervening conduct actually caused the injury.

Plaintiff has offered evidence suggesting that a defect in the vent valve led to the explosion which caused his injuries. In determining whether a genuine issue has been raised, a court must draw all reasonable inferences against the moving party. Donahue, 834 F.2d at 57. Plaintiff's expert, Robert Norton, has testified that his opinion was that the vent valve was defectively designed in that it was subject to clogging. He went on to state that "the valve was clogged by some debris during the bleeding process, thus leaving captured air pressure in the chamber which led to the explosion of the one that was drilled out." Deposition of Norton at 89. Plaintiff, in his affidavit, states that he was positioned in the path of the explosion and suffered extensive injuries as a result. Affidavit of Nicholson at ¶ 8. Assuming these allegations by plaintiff are factually correct for purposes of this motion, plaintiff's showing defeats UTC's claim that no evidence exists to show plaintiff's injury was proximately caused by any defect in the strut. A jury could find, based on Norton's testimony, that because the clogging occurred in the course of bleeding, the design was susceptible to causing the clogging and...