Winters v. Country Home Products, Inc.

Decision Date06 August 2009
Docket NumberNo. CV 07-153-M-JCL.,CV 07-153-M-JCL.
Citation654 F.Supp.2d 1173
PartiesNikolas WINTERS, Plaintiff, v. COUNTRY HOME PRODUCTS, INC., a Vermont corporation, d/b/a DR Power Equipment, Defendant.
CourtU.S. District Court — District of Montana

David W. Lauridsen, Bothe & Lauridsen, Columbia Falls, MT, Robert M. Caplan, Law Offices of Robert A. Stutman, Fort Washington, PA, for Plaintiff.

Charles E. McNeil, Garlington, Lohn & Robinson, PLLP, Missoula, MT, for Defendant.


JEREMIAH C. LYNCH, United States Magistrate Judge.

This matter is before the Court upon Defendant Country Home Products, Inc.'s ("CHP") Motion for Summary Judgment filed June 10, 2009. The Plaintiff, Nikolas Winters, has not filed a response to the motion. In accordance with L.R. 7.1(d)(1)(B), the Court deems Winters' failure to respond as an admission that CHP's motion is well taken.

Upon review of the facts of this case and the evidentiary record before the Court, for the reasons stated below the Court deems it appropriate to grant CHP's motion. This action will be dismissed.


This action stems from injuries Nikolas Winters sustained on June 13, 2005, while operating a brush mower in the course of his employment with the Candy Bar Ranch ("CBR") near Kalispell, Montana. CBR owned the brush mower.1

Defendant CHP is a direct marketer of the brush mower that Winters was using. CBR ordered the brush mower on August 5, 2004, which CHP delivered directly to CBR.

When Winters arrived for work on June 13, 2005, his supervisor, Mark Cahoon, told Winters to use the brush mower to cut tall grass along a fence line. Winters' co-worker, Donny Church, brought the mower to Winters. Winters states that he, Cahoon, and Church did not engage in any discussion about how to operate the mower. Cahoon and Church just gave Winters a "blunt idea" about how to operate the mower, and they told Winters that a lever on the mower's handle powers the wheels. Winters knew how to start the mower, and how to turn it off. Winters does not remember reading any of the information located on the mower itself before he began using it.

While Winters was mowing along the fence line the right front corner of the mower was about to get caught in the fence, so Winters stopped. Although Winters could have turned the mower off when he stopped, he did not do so. Rather, with the blade of the mower engaged, Winters walked around the front of the mower and grabbed a bar. As he pulled on the bar, he slipped causing his leg to slide under the mower and into contact with the blade.

Winters commenced this products liability action against CHP seeking compensation for his injuries. Winters advances claims against CHP based on theories of negligence, strict liability, failure to warn, and breach of warranty.

At the time of manufacture the brush mower was equipped with an Operator Presence Control ("OPC") lever designed by a third party, Magura Controls, and integrated into the design of the brush mower by CHP. The OPC is designed so that the operator has to actuate the OPC lever on the mower's handle bar to start the engine and engage the blade. If the operator leaves the operator's position and releases the OPC lever, the engine will shut off to prevent the operator from being injured by the moving blade. CHP considers the OPC to be a critical safety feature/device on the brush mower. CHP's Statement of Undisputed Facts at ¶ 22.

According to Carl Eickenberg, CHP's current director of merchandising, the subject mower was manufactured and delivered to CBR with the OPC. After the subject brush mower was in CBR's possession, however, the OPC purportedly "fell off or was lost during normal use."2 CHP's Statement of Undisputed Facts at ¶ 28.

CBR's employees claim the OPC lever simply fell off. Eickenberg—familiar with the design of the mower—inspected the mower and found marks on the OPC lever indicating to him that the OPC had been pried off with a tool. Eickenberg stated that "[i]t is incredibly difficult to remove" the OPC lever—"You almost have to break it off." Deposition of Carl Eickenberg (March 11, 2009) at 73 (Dkt. # 29-4 at 9 of 39). Eickenberg concluded that someone had to unscrew the OPC lever, take it apart, and put the mower handle back together without the OPC in place. Id. Eickenberg's opinion, therefore, is that the OPC lever was purposely removed.

Dennis Brickman, CHP's expert witness, investigated and studied the brush mower model that Winters used, and concluded the OPC lever was "intentionally and deliberately removed from the subject mower using a multiple step procedure." Affidavit of Dennis Brickman (June 3, 2009), Defendant's Liability Expert Disclosure (Dkt. # 29-8 at 13 of 41).

As previously noted, Winters has not filed a response to CHP's motion.

A. Summary Judgment

Federal Rule of Civil Procedure 56(c) entitles a party to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." A party moving for summary judgment who does not have the burden of persuasion at trial, must produce evidence which either: (1) negates an essential element of the non-moving party's claim, or (2) shows that the non-moving party does not have enough evidence of an essential element to ultimately carry his burden at trial. Nissan Fire & Marine Ins. Co. Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.2000).

Once the moving party has satisfied its burden, the non-moving party must go beyond the pleadings and designate by affidavits, depositions, answers to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party opposing summary judgment must identify evidence establishing that a dispute as to a particular material fact is genuine. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opponent "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. The party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

An issue of fact is "genuine" if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it may affect the outcome of the case. Id. at 248, 106 S.Ct. 2505.

"In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997), abrogated on other grounds as noted in Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008).

Despite a party's failure to respond to a summary judgment motion, the Court must still evaluate the merits of the motion. A party's mere failure to respond, by itself, does not provide the Court with authority to grant the motion. See Evans v. Independent Order of Foresters, 141 F.3d 931, 932 (9th Cir.1998). Rather, the Court is independently obligated to "carefully evaluate[ ]" whether there exist genuine issues of material facts which would preclude summary judgment. See Cristobal v. Siegel, 26 F.3d 1488, 1495 n.4 (9th Cir.1994). Even in the absence of a response from the non-moving party, the moving party still bears the burden of demonstrating its entitlement to judgment as a matter of law. Id. Nonetheless, a court can grant an unopposed summary judgment motion if the movant's papers do not reveal a genuine issue of material fact, and are themselves sufficient to warrant summary judgment. United States v. Real Property Located at Incline Village, 47 F.3d 1511, 1520 (9th Cir.1995), rev'd on other grounds sub nom, Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996).

B. Application of Montana Law

Because jurisdiction over this action is founded upon diversity of citizenship, the Court applies the substantive law of Montana, the forum state. Medical Laboratory Mgmt. Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 812 (9th Cir.2002). "The task of a federal court in a diversity action is to approximate state law as closely as possible in order to make sure that the vindication of the state right is without discrimination because of the federal forum." Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir.1980). Federal courts "are bound by the pronouncements of the state's highest court on applicable state law." Appling v. State Farm Mutual Auto. Ins. Co., 340 F.3d 769, 778 (9th Cir.2003) (quoting Ticknor v. Choice Hotels International, Inc., 265 F.3d 931, 939 (9th Cir.2001)).

When an issue of state law arises and "the state's highest court has not adjudicated the issue, a federal court must make a reasonable determination of the result the highest state court would reach if it were deciding the case." Medical Laboratory Mgmt. Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 812 (9th Cir.2002) (citations omitted). In doing so, the court must "look to existing state law without predicting potential changes in that law." Ticknor, 265 F.3d at 939. (citation omitted). The court should also rely on persuasive authorities, including treatises and decisions from other jurisdictions, as guidance. Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 865 (9th Cir.1996).


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