Norris v. Excel Indus., Inc.

Decision Date19 October 2015
Docket NumberCivil Action No. 5:14–cv–00029.
Citation139 F.Supp.3d 742
Parties Phyllis E. NORRIS, Administratrix of the Estate of Chester Cecil Norris, Plaintiff, v. EXCEL INDUSTRIES, INC., Defendant.
CourtU.S. District Court — Western District of Virginia

David Michael Kopstein, Philip Peter Kuljurgis, Kopstein & Associates, LLC, Searbrook, MD, John Dress Gehlhausen, Robert Jay Ingraham, John Gehlhausen, PC, Aurora, CO, Marc Philip Weingarten, Locks Law Firm, Philadelphia, PA, for Plaintiff.

Carl Dewayne Lonas, Matthew James Hundley, Moran Reeves & Conn, Richmond, VA, for Defendant.



, District Judge.

This is a products liability action involving the rollover of a zero-turn radius lawnmower, which resulted in the death of the plaintiff's husband, Chester Cecil Norris ("Mr. Norris"). Before the court is defendant Excel Industries, Inc.'s ("Excel") Motion for Summary Judgment. ECF No. 147. The matter has been fully briefed, and the court heard oral argument on the motion on August 13, 2015. For the reasons set forth below, the court will GRANT Excel's motion.


On July 16, 2013, Mr. Norris was tragically killed while mowing grass in a subdivision in Winchester, Virginia when his mower slid down a wet embankment, struck a culvert, rolled over, and landed on top of him. The mower was a 2007 Hustler Z Model 927772A zero-turn radius mower manufactured by Excel. John Updike ("Updike"), the owner and operator of Evergreen Lawncare and Mr. Norris's employer, purchased the mower new in 2007 from Cutting Edge Small Engine Repair ("Cutting Edge"), a local landscaping equipment dealer in Winchester. The mower did not have a rollover protection system ("ROPS") which consists of a seatbelt and a roll bar extending over the driver's head.

In 2007, ROPS was not standard equipment on the Hustler Z, but rather was an option that a customer could purchase. Other mower models manufactured by Excel did feature ROPS as standard equipment. At that time, the American National Standard Institute ("ANSI") provided recommended standards and safety specifications for commercial turf care equipment such as the Hustler Z. The 2004 version of ANSI standard B71.4 applied when this mower was built and provided that certain stability tests, including a lateral upset test, should be performed on the mower to determine whether ROPS was necessary. The 2007 model of the Hustler Z met the requirements of ANSI standard B71.4.

Thus, Excel did not make ROPS standard equipment for the Hustler Z, but instead provided ROPS as an optional safety package. ROPS became standard equipment on the Hustler Z in 2008.

Excel also provided an owner's manual for the Hustler Z that was given to Updike. As part of his duties as the owner of Evergreen Lawncare, Updike reviewed this owner's manual with Mr. Norris, including sections describing how to operate the Hustler Z on slopes and the need to avoid dangerous terrain. Updike provided additional safety instructions to all his employees about avoiding wet terrain when mowing.

Further, Mr. Norris was an experienced operator of the Hustler Z, having used that same mower multiple times while working with Evergreen Lawncare. Likewise, Mr. Norris had prior experience rolling over riding mowers. Mr. Norris suffered a closed head injury

sometime in September 2012 when he accidentally rolled a mower. Though Mr. Norris apparently did not report this rollover to his employer, he did report to the emergency room at the Winchester Medical Center in Winchester, Virginia several weeks after the September accident to complain of head pain.

In her amended complaint, Phyllis Norris ("Norris") alleges Excel negligently designed, manufactured, and sold the mower without rollover protection or an adequate warning of the need for a safety frame system. Norris also seeks punitive damages because Excel's negligence was willful, malicious, wanton, and reckless constituting a conscious disregard for the safety of consumers like the decedent.

Excel moves for summary judgment on the design defect claim on multiple grounds: (1) ROPS was offered as an option on the Hustler Z; (2) the lack of ROPS is open and obvious; (3) Norris assumed the risk by operating the lawnmower without ROPS; (4) offering ROPS as an option on the Hustler Z satisfied the relevant ANSI standard; and (5) Norris is pursuing a "crashworthiness" claim not recognized under Virginia law. As to the failure to warn claim, Excel moves for summary judgment because Updike and Mr. Norris were knowledgeable, experienced users of zero-turn radius mowers and well aware of the risks associated with their operation.


Pursuant to Federal Rule of Civil Procedure 56(a)

, the court must "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) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir.2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with ... [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)


In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn, 710 F.3d at 213

(citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir.2011) ). Indeed, "[i]t is an ‘axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.’ " McAirlaids, Inc. v. Kimberly–Clark Corp., 756 F.3d 307, 310 (4th Cir.2014) (internal alteration omitted) (citing Tolan v. Cotton, –––U.S. ––––, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam)). Moreover, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge...." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, the non-moving party "must set forth specific facts that go beyond the ‘mere existence of a scintilla of evidence.’ " Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505 ). Instead, the non-moving party must show that "there is sufficient evidence favoring the non[-]moving party for a jury to return a verdict for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir.2005) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505 ). "In other words, to grant summary judgment the Court must determine that no reasonable jury could find for the non[-]moving party on the evidence before it." Moss v. Parks Corp., 985 F.2d 736, 738 (4th Cir.1993) (citing Perini Corp. v. Perini Const., Inc., 915 F.2d 121, 124 (4th Cir.1990) ).


As a federal court sitting in diversity, the court must apply the substantive law and choice-of-law rules of the forum state. See Salve Regina Coll. v. Russell, 499 U.S. 225, 226, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991)

(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ). The accident occurred in Virginia, so Virginia products liability law applies. See Frye v. Commonwealth, 231 Va. 370, 376, 345 S.E.2d 267, 272 (1986).

A. Products Liability Claim

In a products liability case, whether proceeding on an implied warranty or negligence theory of liability, the standard imposed on a manufacturer is essentially the same. Slone v. General Motors Corp., 249 Va. 520, 526, 457 S.E.2d 51, 54 (1995)

(quoting Logan v. Montgomery Ward, 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975) ). Under either theory, the plaintiff must show that a product contained a defect that rendered it "unreasonably dangerous for the use to which it would ordinarily be put or for some other reasonably foreseeable purpose and that the unreasonably dangerous condition existed when the [product] left the seller's hands." Sutherlin v. Lowe's Home Centers, LLC, No.3:14–CV–368, 2014 WL 7345893, at *8 (E.D.Va. Dec. 23, 2014) (citing Logan, 216 Va. at 428, 219 S.E.2d at 687 ). Manufacturers are not required to produce "accident-proof products," Slone, 249 Va. at 526, 457 S.E.2d at 54, or even "incorporate the best or most highly-advanced safety devices." Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir.1993) (citing Marshall v. H.K. Ferguson, 623 F.2d 882, 885 (4th Cir.1980) ). Thus, to determine if a product is unreasonably dangerous, a court "will consider safety standards promulgated by the government or the relevant industry, as well as the reasonable expectations of consumers." Alevromagiros, 993 F.2d at 420. A plaintiff cannot survive summary judgment unless she creates a genuine dispute of material fact that a product's design did not conform to (1) a government standard, (2) an industry standard, or (3) the reasonable expectations of consumers.

Excel moves for summary judgment on a number of grounds, including that the Hustler Z complied with the applicable ANSI standard and conformed to...

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