Tipton v. Bergrohr GMBH-Siegen, GMBH-SIEGEN

• Citation: 965 F.2d 994
• Decision Date: 08 July 1992
• Docket Number: GMBH-SIEGEN,No. 90-3677,GMBH-H,90-3677
• Parties: Donald Lee TIPTON, Linda Tipton, his wife, Plaintiffs-Appellants, v. BERGROHR, a German Corp., Bergrohrerne, a German Corp., Defendants-Appellees, G.L. Rexroth GMBH, a German Corp., Defendant, S.E. "Siggy" Koehle and H.L. Goode, Third-Party Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 994

965 F.2d 994

Donald Lee TIPTON, Linda Tipton, his wife, Plaintiffs-Appellants, v. BERGROHR GMBH-SIEGEN, a German Corp., Bergrohr GMBH-Herne, a

German Corp., Defendants-Appellees,

G.L. Rexroth GMBH, a German Corp., Defendant,

S.E. "Siggy" Koehle and H.L. Goode, Third-Party Defendants.

No. 90-3677.

United States Court of Appeals, Eleventh Circuit.

July 8, 1992.

Rehearing and Rehearing En Banc

Denied Sept. 4, 1992.

William A. Bald and Stephen J. Pajcic, III, Jacksonville, Fla., for plaintiffs-appellants.

Lynn C. Higby, and Harry L. Harper, Bryant, Higby & Williams, Panama City, Fla., for Bergrohr GMBH-Siegen and Bergrohr GMBH-Herne.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and HENDERSON, Senior Circuit Judge.

TJOFLAT, Chief Judge:

The district court granted appellees summary judgment in this products liability and negligence action, ¹ concluding that appellants had failed to present a triable issue of fact for the jury. We agree that appellants have no case, and affirm.

I.

On June 30, 1987, Donald Tipton brought this action ² against the two German corporations, Bergrohr GMBH-Siegen (Siegen) and Bergrohr GMBH-Herne (Herne), that designed the "sizer" machine ³ at the Berg Steel Pipe Corporation (BSPC) in Panama City, Florida. His complaint alleged that on August 13, 1986, as Tipton was standing near the sizer machine to assist in changing its several-ton rollers, the sizer's arms opened before the roller was secured to the crane and, as a result, the roller fell out and crushed Tipton's foot. He brought two claims, each in a separate count, against Siegen and Herne: (1) the defendants were liable for the defective design and manufacture of the sizer machine, ⁴ and (2) the defendants were liable under negligence principles for their undertaking to ensure the safe operation of the sizer machine. ⁵

The defendants' answer denied all of Tipton's allegations and, after two years of discovery, they moved the court for summary judgment on all counts. In support of their motion for summary judgment, the defendants presented the depositions of several executive officers of Siegen, Herne, and BSPC, who testified that Siegen and Herne were in the business of making steel pipe, not sizer machines. ⁶ In addition, they presented the affidavit of the chief financial officer of BSPC, John Peters, who stated that Siegen, Herne, and BSPC were all closely held corporations and subsidiary units of the larger Berg Family Estate and Trusts. Siegen and Herne therefore argued that their design of BSPC's sizer machine was, in effect, only for "in-house" use. As so characterized, they contended, any theory of products liability against Siegen and Herne must fail because Florida law clearly requires the manufacturer to be in the business of and gain profits from distributing and selling the product in question through the stream of commerce. ⁷ In this case, they concluded, Siegen and Herne were not in the business of selling or distributing sizer machines and, specifically, there had been no sale of the sizer, or its design, to BSPC.

In opposing summary judgment, Tipton argued that Siegen and Herne were liable as the designers of the sizer machine both under sections 395 and 402A of the Restatement (Second) of Torts (1965). ⁸ He did not contest that Florida law required the injured party to show that there had been a sale of the product in question; rather, he argued that because Siegen, Herne, and BSPC were separate corporations, and since the transfer of the design was for "an economic purpose"--not for Siegen's or Herne's own use--that the exchange of the sizer's design in this case was a "sale." Alternatively, Tipton argued that Siegen and Herne were liable under section 324A of the Restatement (Second) of Torts for their failure to use reasonable care in undertaking to ensure the safe operation of the sizer machine. ⁹

On May 25, 1990, the district court granted the defendants' motion for summary judgment. Accordingly to the court, the record clearly showed that there had been no sale of the sizer machine or its design. Furthermore, the court likened this case to the situation in which a company manufactures equipment for its own use, not for consumers; consequently, the court reasoned, under Florida's products liability law the defendants were not liable. The court therefore concluded that Tipton had failed to create a genuine issue of material fact regarding an essential element of his claims, and given no just reason for delay, the district court entered final judgment in favor of the defendants on July 17, 1990, ¹⁰ without ever addressing the issue of the defendants' alleged failure to ensure the safe operation of the sizer machine. ¹¹ Tipton now appeals.

II.

A.

Our review of the district court's grant of summary judgment is plenary and is to be conducted utilizing the same legal standards as those imposed upon the district court. Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir.1990). The party moving for summary judgment bears the initial burden of "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 a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). An issue of fact is "material" if it is a legal element of the claim, as identified by the substantive law governing the case, such that its presence or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

Once the moving party meets this initial burden, summary judgment is then appropriate as a matter of law against the nonmoving party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. In making a sufficient showing, the nonmoving party must "go beyond the pleadings and by ... affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)). In opposing summary judgment, the nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. Instead, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970)). If, so viewed, a rational trier of fact could find a verdict for the nonmoving party under the substantive evidentiary standard, the nonmoving party can defeat summary judgment. Id. 477 U.S. at 252, 106 S.Ct. at 2512.

B.

With these legal standards in mind, the sole issue worthy of our extended consideration ¹² is whether the district court properly could have found Siegen and Herne negligent for failing to ensure the safe operation of the sizer machine. Tipton has the burden of proof at trial of showing the following elements: (1) that Siegen and Herne assumed the duty to ensure the safe operation of the sizer machine, (2) that they failed to use reasonable care in performing that duty, and (3) that their failure was the proximate cause of Tipton's injuries or "increase[d] the risk of such harm," see supra note 9. Each element is essential to Tipton's negligence claim and in making a sufficient showing on each element for the purposes of defeating summary judgment, Tipton cannot rest on the allegations in his complaint.

The record viewed as a whole and in the light most favorable to Tipton, however, does not present a scintilla of reliable evidence as to how the accident occurred. First, the record does not contain an eyewitness account of how the accident happened; neither Donald Tipton, nor his co-worker on the sizer machine, were deposed. Second, the record contains no depositions, no affidavits, no answers to interrogatories, and no admissions of fact, by any person with personal knowledge, setting forth such facts as would be admissible as evidence, see Fed.R.Civ.P. 56(e), concerning how the accident took place or describing what adjustments or alterations, if any, Siegen and Herne made, or should have made, to ensure the safe operation of the sizer machine.

The only account of the accident, besides the account alleged in Tipton's complaint, comes from Tipton's employer, S.E. Koelhe. Koelhe testified in his deposition that BSPC's investigating committee concluded that the accident was caused by the activation of the hydraulic valve, which opens the pins holding the upper roller, before the roller was properly secured to its holding crane as required by the company's roller-change procedures. Koelhe's account, of course, is rank hearsay and is not admissible as evidence. See Fed.R.Evid. 801, 802 (1990). Moreover, assuming for the sake of argument that it is admissible, Koelhe's testimony makes no mention of any adjustments or alterations that Siegen and Herne made, or should have made, to ensure the safe operation of the sizer.

It follows that...