Whitmire v. Terex Telelect, Inc.

• Decision Date: 05 May 2005
• Docket Number: No. Civ.A.1:03-CV-00051.,Civ.A.1:03-CV-00051.
• Citation: 390 F.Supp.2d 540
• Parties: Raymond W. WHITMIRE, Sr., Plaintiff, v. TEREX TELELECT, INC., and Zurich American Insurance Company, Defendants.
• Court: U.S. District Court — Eastern District of Texas

390 F.Supp.2d 540

Raymond W. WHITMIRE, Sr., Plaintiff, v. TEREX TELELECT, INC., and Zurich American Insurance Company, Defendants.

No. Civ.A.1:03-CV-00051.

United States District Court, E.D. Texas, Beaumont Division.

May 5, 2005.

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Curtis Wynne Leister, Beaumont, TX, for Plaintiff.

Daniel O. Goforth, Casey A. Bell, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

CRONE, District Judge.

Pending before the court is Defendant Terex Telelect, Inc.'s ("Terex"), Motion for Summary Judgment (# 51). Terex seeks summary judgment on Plaintiff Raymond W. Whitmire, Sr.'s ("Whitmire"), claims of strict products liability, negligence, and breach of express and/or implied warranties of safety arising from injuries he allegedly sustained in an accident involving a digger derrick truck¹ designed, manufactured, and marketed by Terex. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment should be granted in part and denied in part.

I. Background

On or about June 5, 2001, Whitmire, a heavy equipment operator, was operating a Terex Telelect Commander 4045 Model Digger Derrick ("digger derrick") "mounted on the chassis of a heavy duty pickup truck which requires a commercial driver's license to operate." Whitmire had worked with and operated the digger derrick for approximately one week prior to the incident in question. On the day of the accident, Whitmire, his brother, L.D. Whitmire, and his son, Raymond Whitmire, Jr. ("Whitmire, Jr."), were working with a group of employees from L.E. Myers Co. ("Myers"), installing new utility poles and lines along a residential street in San Antonio, Texas.

After arriving at the work site, Whitmire climbed up into the operator's chair of the digger derrick to begin operating the equipment. Before starting work, a co-worker notified Whitmire that an electrical pole down the street was uneven and needed to be straightened with the digger derrick. Instead of descending from the operator's chair and getting into the truck, Whitmire remained in the chair and, because the rest of the crew was elsewhere, instructed Whitmire, Jr., who had never driven the truck and did not have a commercial driver's license, to back the truck down the road to the uneven pole. Whitmire, Jr., complied and drove the truck in reverse while Whitmire remained in the operator's chair.

As he proceeded in reverse, Whitmire, Jr., inadvertently drove the truck toward some tree limbs, one of which struck Whitmire in the mid-back area and pushed him forward out of his seat. According to Whitmire, he "stepped out and got [his] foot on the step" and "swung around to get on the side of the truck to get away from the limb." When he reached for a handhold, he discovered that there was nothing for him to grab. After losing his balance, Whitmire fell out of the chair and plunged twelve feet to the ground, allegedly suffering significant bodily injuries, including a broken neck and a broken hand. In contrast, Terex claims that Whitmire and his crew violated basic safety rules that led to Whitmire's being struck by a branch, which knocked him out of the operator's chair and onto the ground. As a consequence, Terex argues, Whitmire "cannot prove that he would not have suffered his injuries had there been additional `grab-rails' or an intermediate step on the digger derrick in question."

Whitmire, a resident of Mauriceville, Orange County, Texas, instituted this diversity action, on January 24, 2003, asserting products liability claims against Terex, a wholly-owned subsidiary of Terex Utilities. Terex is incorporated in the State of Delaware and maintains its principal place of business in Watertown South Dakota. Zurich American Insurance Company, Myers's workers' compensation carrier, was added to the lawsuit as an additional defendant due to a potential subrogation interest it may have in this case. In his complaint, Whitmire alleges that the digger derrick, "as designed, manufactured and sold by Defendant, had inadequate and unsafe means of egress and ingress, and inadequate guarding or protective material, which was a proximate cause of injury to Plaintiff." In addition, Whitmire asserts that the digger derrick was "unreasonably dangerous and defectively designed, marketed and sold (including inadequate or defective warnings and instructions), and reached Plaintiff in substantially the same condition in which it left Defendant's custody, which was a producing cause of the occurrence in question and Plaintiff's injuries and damages."

Whitmire also alleges that Terex was negligent in the design, manufacture, marketing, and sale of the digger derrick, which was a proximate cause of Whitmire's injuries and damages. Lastly, Whitmire claims that Terex breached express and/or implied warranties of safety with respect to the digger derrick, which was a proximate cause of Whitmire's injuries and damages. As a result of Terex's allegedly tortious conduct, Whitmire is seeking damages for present and future bodily injuries, including loss of earnings and earning capacity, medical and hospitalization expenses, physical impairment, physical pain, and mental anguish.

On November 12, 2004, Terex filed its motion for summary judgment, claiming that neither Whitmire nor Zurich can "prove the causation elements of either their claim of defective design or their negligence cause of action and because neither Plaintiff nor Intervenor can prove the safer alternative design element of their strict product liability claim or that Defendants breached any duty to them as is required to show negligence." Specifically, Terex argues that Whitmire has adduced no evidence to show that any design defect was a producing cause of his injuries or that the digger derrick at issue was unreasonably dangerous. With respect to his negligence claim, Terex states that Whitmire "has no evidence that it was reasonably foreseeable to Terex-Telelect, Inc. that Plaintiff and his crew members would abandon common sense and violate basic safety rules and that the digger derrick would be backed into a tree knocking Mr. Whitmire out of the operator's chair."

II. Analysis

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Martinez v. Schlumberger, Ltd., 338 F.3d 407, 411 (5th Cir.2003); Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir.1999).

"A fact is 'material' if it 'might affect the outcome of the suit under governing law.'" Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir.2001) (emphasis in original) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466, 471 (5th Cir.2001); Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir.1999); Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir.1994). "An issue is `genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan, 246 F.3d at 489 (emphasis in original). Thus, a genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; accord Harken Exploration Co., 261 F.3d at 471; Merritt-Campbell, Inc., 164 F.3d at 961. The moving party, however, needs not negate the elements of the nonmovant's case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir.1999), cert. denied, 528 U.S. 1160, 120 S.Ct. 1171, 145 L.Ed.2d 1080 (2000); Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. "[T]he court must review the record `taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348). All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996); see Reeves, 530 U.S. at 150, 120 S.Ct. 2097; Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir.2003); Harken Exploration Co., 261 F.3d at 471; Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 534 U.S. 951, 122 S.Ct. 347, 151 L.Ed.2d 262 (2001); Colson, 174 F.3d at 506. The evidence of the...