Bernier v. Simon-Telelect, et al. CV-96-009-M 06/02/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gene F. Bernier Plaintiff
v. Civil No. 96-9-M
Simon-Telelect, Inc. and James A. Kilev Co., Defendants
O R D E R
Plaintiff was injured in a work-related accident involving a
truck equipped with an aerial lift. He brought suit against
Simon Telelect, Inc., the manufacturer of the aerial lift, and
James A. Kiley, Co., the assembler of the truck. Both defendants
have filed motions for summary judgment, and plaintiff objects.
For the reasons that follow, defendants' motions are denied.
________________________ Standard of Review
Summary judgment is appropriate 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 moving party first must show the absence of a genuine
issue of material fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). Because defendants raise
affirmative defenses, on which they would have the burden at
trial, to prevail at this stage they must demonstrate the absence of disputed material facts with respect to all elements of each
asserted defense, so that no reasonable juror could find in
plaintiff's favor. See Lopez v. Corporacion Azucarera de Puerto
Rico, 938 F.2d 1510, 1516-17 (1st Cir. 1991); Dole Fresh Fruit
Co. v. Delaware Cold Storage, 961 F. Supp. 676, 682 (D. Del.
1997); see also State v. Soucv, 139 N.H. 349, 353 (1995) (burden
of proof on affirmative defenses under New Hampshire law). The
court interprets the record in the light most favorable to the
nonmoving party and resolves all inferences in its favor.
Saenger Organization v. Nationwide Ins. Assoc., 119 F.3d 55, 57
(1st Cir. 1997). Thus, summary judgment will be granted only if
the record shows no trialworthy factual issue and if the moving
party is entitled to judgment as a matter of law. EEOC v. Green,
76 F .3d 19, 23 (1st Cir. 1996).
Background
On January 7, 1993, plaintiff. Gene Bernier, was working as
a foreman for Public Service Company of New Hampshire ("PSNH") on
a line crew changing insulators for high energy wires. Plaintiff
was leaning against the utility truck while a lineman worked from
a bucket on the truck's aerial lift above him. When the lineman
repositioned himself in the aerial lift, the boom inadvertently
contacted an uninsulated wire. Electricity was conducted down
the lift, through the truck, and through plaintiff who suffered
serious injuries.
2 The truck involved in the accident was assembled by
defendant James A. Kiley Co. for PSNH in 1987. In 1986, PSNH
requested quotes from Kiley to equip four line utility trucks
(includinq the truck later involved in the accident) with aerial
lifts. PSNH's specifications relatinq to "50' HEAVY DUTY ELBOW
UNITS FOR LINE TRUCKS" (aerial lifts) called for: "First or lower
section to be constructed of steel [ninety deqrees] minimum
articulation." PSNH did not specify provision of a lower boom
insert ("LBI"), that is, a fiberqlass insert on the first or
lower section, for any of the four trucks.
The LBI was an option offered by defendant Simon-Telelect on
its aerial lifts. Its purpose was to act as an insulator —
preventinq electric current from beinq conducted throuqh the lift
to the truck (and anyone touchinq the truck) . Kiley informed
PSNH of the availability of the LBI, and listed it as an option
in its formal quote. PSNH nevertheless ordered the trucks
without the LBI option. In 1986, PSNH had approximately 100
utility trucks, some with and some without LBIs. Simon-Telelect
manufactured the aerial lifts used on PSNH's trucks and sold the
lifts to Kiley, its authorized dealer, without LBIs.
Discussion
Plaintiff brinqs claims of strict product liability,
neqliqence, and breach of warranty aqainst each of the
defendants. Defendants move for summary judqment, assertinq
3 several affirmative defenses which are primarily aimed at
plaintiff's strict product liability claims.1 Plaintiff objects.
A. Private Contractor/Designer Defense
Under New Hampshire law, "[t]o maintain a products liability
claim based on defective design, a plaintiff must prove: (1) that
the design of the product created a defective condition
unreasonably dangerous to the user; (2) that the condition
existed when the product was sold by a seller in the business of
selling such products; (3) that the use of the product was
reasonably foreseeable by the manufacturer; and (4) that the
condition caused injury to the user or the user's property."
Chellman v. Saab-Scania A B , 138 N.H. 73, 77 (1993); accord
LeBlanc v. American Honda Motor Co., 141 N.H. 579, 585 (1997).
Defendants point to decisions in other jurisdictions that
recognize an affirmative defense against liability for a design
defect when a private contractor constructs a product from plans
or specifications provided by someone else. See, e.g., Rogers v.
Ford Motor C o ., 925 F. Supp. 1413, 1420-21 (N.D. Ind. 1996)
defendants do not distinguish among their defenses with respect to plaintiff's three distinct claims, despite the fact that negligence and strict liability may reguire distinct defense theories. See, e.g., Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 811 (1978). Instead, defendants generally lump plaintiff's claims as "tort liability," and cite cases without regard to whether the defenses recognized therein pertained to strict liability or negligence claims. Because defendants urge that "At the very least, this court should grant summary judgment on strict liability," (capitalization omitted), the court understands that strict liability is the primary focus of the present motions for summary judgment.
4 (construing Indiana law). Defendants also interpret Bruzqa v.
PMR Architects, 141 N.H. 756 (1997)(where the court held that
architects and builders provide professional services, not
products, and so are not subject to strict liability) to forecast
acceptance of the private contractor defense in New Hampshire.
Kiley and Simon-Telelect contend that they are not liable
for defective design of the aerial lift because neither of them,
they argue, designed the lift. Defendants point to the fact that
PSNH provided specifications to Kiley that described the aerial
lift to be installed on PSNH's utility trucks. They argue that
they merely built the lift and assembled the truck in conformance
with PSNH's specifications.
The record does not support defendants' representations.
PSNH provided "standards" for "elbow units" (aerial lifts) for
the purpose of obtaining proposals from companies such as Kiley
to customize four utility trucks. The standards described the
minimum reguired functions, capacities, stability, components,
and controls for the aerial units on the trucks. In response,
Kiley submitted its guote, dated May 13, 1986, in which it said:
We are pleased to submit a proposal for furnishing four (4) Tel-E-Lect Material Handling Aerial Bucket and Kiley Utility Body to meet the reguirements of your Specifications included with your Reguest for Quotation No. 1322 ........ We feel that the Tel-E-Lect, Model T5051 Unit meets or exceeds your specifications and offer the following: [describes particular features of the Tel-E-Lect model with references to pages of PSNH's standards].
The Tel-E-Lect model Kiley described in its proposal apparently
met or egualed most, but not all, of PSNH's standards. For
5 example, PSNH asked that the hydraulic system reservoir be
"Mounted on line body floor at front" while the specifications
for the Tel-E-Lect model provided "Reservoir mounted in turret."
Kiley highlighted the differences between the Tel-E-Lect model it
was guoting and PSNH's standards: "We would like to point out
some of the features of the Tel-E-Lect Machine not included in
your specifications" and Kiley listed eighteen items. Kiley also
offered three options, with prices, including the LBIs that were
not mentioned in PSNH's standards.
Defendants offer no record support for their conclusory
allegations that PSNH "designed" the particular aerial lifts
manufactured by Simon-Telelect and installed on the PSNH trucks.
Defendants charge that PSNH "specified" and "expressly reguested"
aerial lifts without LBIs. PSNH's standards specify a steel
boom, rather than fiberglass, but do not rule out an LBI, as is
demonstrated by the fact that Kiley's proposal offered the LBI
option and Kiley discussed that option with PSNH. Defendants
argue, "If Simon-Telelect wanted to have an opportunity to build
the aerial lift which PSNH intended to purchase in 1986, its bid
had to comply with PSNH's specifications." Defendants do not
include in the record submitted here any "bid" by Simon-Telelect
to PSNH. Then defendants speculate, without record references,
that if Simon-Telelect had submitted a "bid" or built a lift that
did not comply with PSNH's reguirements, PSNH would have rejected
it as not complying with the specifications. Kiley's proposal,
however, describes a Tel-E-Lect aerial lift model that was
6 otherwise not entirely conforming with PSNH's standards, yet
still offered the LBI option.
The record evidence strongly suggests that Kiley's proposal
offered PSNH a standard aerial lift model manufactured by Simon-
Telelect and chosen by Kiley because it generally egualed or
exceeded PSNH's standards; Kiley did not offer a unigue product
manufactured specially to meet PSNH's design, or even its
standards exactly. In other words, Simon-Telelect offered a
variety of available aerial lift models with varying
specifications and options. Kiley picked Tel-E-Lect model T5051
as the unit most closely matching PSNH's reguirements
(standards). No custom manufacturing based on PSNH's "design" is
suggested by this record. Rather, it seems that Simon-Telelect
offered standard lift models and Kiley chose the T5051 model for
inclusion in its guote for the entire assembly.
To prevail on a private contractor defense, defendants must
show that they "took no part in the design of the allegedly
defective product." Rogers, 925 F. Supp. at 1421. Defendants
have not met this prereguisite based on undisputed facts in the
summary judgment record. As defendants have not sustained their
burden to establish a "private contractor" defense, even based on
the law of jurisdictions that dp recognize the defense, it is
unnecessary to decide whether New Hampshire would recognize the
defense. In summary, because the record evidence shows at least
a material factual dispute as to whether PSNH, rather than
defendants, designed the aerial lift involved in plaintiff's
7 accident, defendants cannot prevail on summary judgment on that
defense theory.
B. Component Part Defense
Simon-Telelect proposes that a "component part supplier is
liable only if a plaintiff's injuries resulting from the use and
operation of the product, is 'directly and solely attributable'
to its component part, and the product manufacturer's 'only
negligence lay in its failure to discover that the [product] was
defective.'" Simon-Telelect's Memorandum at 8 quoting Jaswell
Drill Corp. v. General Motors Corp., 129 N.H. 341, 346 (1987).
In Jaswell, the court held that Jaswell Drill Corporation would
be entitled to indemnity from its fellow tortfeasor. General
Motors, if Jaswell's liability to the injured party was only due
to "its failure to discover that the GM engine was defective."
Id. Thus, New Hampshire apparently does not recognize the
component-part defense asserted by Simon-Telelect — at least not
in Jaswell.
Further, if New Hampshire were to recognize an affirmative
defense for a component part supplier, such a defense would not
seem to protect Simon-Telelect in this case, where its component
part, the aerial lift, was causally connected to the accident.
Based on the facts of record, this is not a case where an
"innocent" component part was integrated into a dangerous
product. The record here suggests that Simon-Telelect designed
and offered the LBI to address the precise safety issue related to the accident — suggesting that the danger was apparent long
before the lift was incorporated into the utility truck and that
the lift was not an "innocent" component in an otherwise
defective product.
C. Sophisticated User Defense
Defendants also contend that the aerial lift was not
unreasonably dangerous for the ordinary consumer because PSNH,
the purchaser of the truck, is engaged in the electric utility
industry and was well-acguainted with the dangers of working with
electricity, using aerial lifts, and the safety-related purposes
of an LBI. Similarly, defendants argue that plaintiff, the user
of the truck, was personally knowledgeable about the dangers of
electrical work and the purpose of an LBI. As such, defendants
argue, PSNH and plaintiff were "sophisticated users" of the
aerial lift, thus relieving defendants of any liability for
defective design or their failure to warn of dangers associated
with using the aerial lift without an LBI.
Defendants' "sophisticated user" defense derives from
negligence tort liability theory pertaining to suppliers
described in section 388 of the Restatement, Second, of Torts,
rather than from strict tort liability theory described in
section 402A. See, e.g., Alexander v. Morning Pride Mfg. Inc.,
913 F. Supp. 362, 371 (E.D. Pa. 1995) aff'd , 100 F.3d 946 (3d
Cir. 1996). Section 388(b) limits a supplier's liability to one
who "has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition." Under
New Hampshire law, knowledge and experience of a product's user
are relevant to a defendant's negligence in failing to warn of
the product's dangers. See Laramie v. Sears, Roebuck & Co., 707
A.2d 443 (N.H. 1998); Murray v. Bullard Co., 110 N.H. 220, 226-27
(1970). Thus, New Hampshire would seem to recognize the
"sophisticated user" defense in negligence product liability
actions.
While some jurisdictions have also imported the
"sophisticated user" defense into strict liability actions,
others have not. Compare Baker v. Monsanto, 962 F. Supp. 1143,
1151 (S.D.Ind. 1997) (Indiana law applying section 388 in both
negligence and strict liability failure to warn claims) with
Alexander v. Morning Pride Mfg. Inc., 913 F. Supp. 362, 371 (E.D.
Pa. 1995) (Pennsylvania law limiting section 388 to negligence
claims). In addition, variations in state law of product
liability make it unclear in some cases whether a "sophisticated
user" defense is being applied to strict liability or negligence
claims. See, e.g., Scallan v. Duriron Co., 11 F.3d 1249, 1252
(5th Cir. 1994) (applying product liability law of Louisiana).
Under New Hampshire's strict liability law, " [m]anufacturer
liability may still attach even if the danger is obvious to a
reasonable consumer or if the user employs the product in an
unintended but foreseeable manner," depending on the cost and
efficiency of reducing the danger of the product. Price v. BIC
Corp., 702 A.2d 330, 333 (N.H. 1997). Because the "sophisticated
10 user" defense is a negligence theory derived from the
Restatement, Second, of Torts, it is likely the New Hampshire
Supreme Court would limit its application to negligence claims.
In this case, the danger posed by the aerial lift when
employed in electrical utility work was that any contact between
the aerial lift and electric current could energize the entire
truck and electrocute anyone in contact with the truck. LBIs
were intended to provide insulation, preventing electrification
beyond the lift. An effective warning would notify anyone in
proximity to a truck, without an LBI, to stay clear while the
aerial lift operated in the vicinity of electrical energy. In
fact, a written warning apparently was affixed to other PSNH
utility trucks without LBIs, but was not on plaintiff's truck at
the time of the accident. Defendants argue that they were not
obligated to provide such warnings, nor are they liable for any
danger because plaintiff himself was fully aware of the danger
posed by a lift without an LBI, and alternatively, because they
could reasonably rely on PSNH to provide adeguate training and
warnings.
1. Plaintiff as "sophisticated user."
Plaintiff testified in his deposition he was aware of the
purpose of LBIs on utility trucks, had worked on trucks with and
without LBIs; and, knew that the truck on the day of the accident
was not eguipped with an LBI. He also testified that because of
the danger that the truck could be energized if the aerial boom
11 touched a live energy source, he would not touch or stand near
the truck when the lift was in motion — only when the lift was in
position and stationary. The warning system he and his fellow
workers used reguired the bucket operator on the lift to yell
down and tell the others before he moved the lift so that they
could all stand clear. When the accident happened, the worker in
the bucket moved the lift without making plaintiff aware of it
and while he was touching the truck. Thus, based on the record
here, despite plaintiff's understanding of the danger involved in
working with aerial lifts and electrical power and his intent to
avoid contact with an energized truck, the accident occurred.
Plaintiff's knowledge alone seemingly would not protect him
from the danger of the truck being energized through the lift,
unless plaintiff could work without ever touching or standing
near the truck while the lift was in use, which appears unlikely
on this record. In addition, at least the lift operator's
knowledge and experience would seem to be pertinent, because the
record indicates that electrical utility workers operate in teams
whose members must cooperate to avoid dangers. Although the lift
operator's deposition excerpt, in the record here, shows that he
was familiar with the accident prevention manual, it has not been
established what specific knowledge he had about the dangers of
contacting an energy source with a part of the aerial lift, the
purpose of LBIs, or whether he was aware at the time of the
accident that the truck was not eguipped with an LBI.
12 Therefore, whether plaintiff was a "sophisticated user"
under these circumstances, so defendants could reasonably rely on
his knowledge and experience to understand and avoid the known
risk posed by the aerial lift without an LBI, is not established
as an undisputed fact on the record presented here. Accordingly,
defendants have not shown on the summary judgment record, that a
reasonable jury could only find in their favor — that they
reasonably relied on the electrical utility workers to avoid
electrocution accidents when using a lift unprotected by an LBI
and without warnings. See, e.g., Howard v. General Cable Corp.,
674 F .2d 351, 355 (5th Cir. 1982).
2. PSNH as "sophisticated purchaser."
The supplier of a dangerous product may not be liable for
providing a dangerous product, or for failing to provide a
warning of the product's danger, if the supplier reasonably
relied on an intermediary, such as a purchaser/employer, to make
the product's use reasonably safe. See, e.g., Landberg v. Ricoh
Intern., 892 F. Supp. 938, 943 (E.D. Mich. 1995); Reibold v.
Simon Aerials, Inc., 859 F. Supp. 193, 200 (E.D. Va. 1994). The
"sophisticated purchaser" rule is intended to apply when "the
supplier cannot be asked to warn each ultimate user of the
product's dangers; therefore, the supplier is permitted to rely
on the purchaser/employer to warn the ultimate users of the
product's dangers if such reliance is reasonable." Newson v.
Monsanto C o ., 869 F. Supp. 1255, 1260 (E.D. Mich. 1994).
13 Jurisdictions that apply Restatement, Second, of Torts, section
388's "sophisticated purchaser" defense determine whether a
supplier's reliance was reasonable by considering factors
discussed in comment n of section 388, which include:
(1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of the risk involved; (6) the burdens imposed on the supplier by reguiring that he directly warn all users.
Baker, 962 F. Supp. at 1151; accord Burt v. Fumigation Serv. and
Supply, Inc., 926 F. Supp. 624, 633 (W.D. Mich. 1996); In Re TMJ
Implants Products Liability Litigation, 872 F. Supp. 1019, 1028
(D. Minn. 1995); Dole Food Co. v. North Carolina Foam Indus., 935
P.2d 876, 881 (Ariz. C t . App 1996); Carter v. E.I. DuPont de
Nemours & C o ., 456 S.E.2d 661, 664 (Ga. C t . App. 1995).
It is undisputed that Simon-Telelect's aerial lifts were
available in 1986 with and without LBIs and that the option with
an LBI was a safer model for use in electrical utility work. At
that time, PSNH had trucks with lifts that included LBIs and some
that did not. The record does not show what Simon-Telelect knew
about PSNH's understanding of the LBI option, or what safety
information Simon-Telelect provided to Kiley about LBIs.
Although Kiley disclosed and discussed the LBI option with a PSNH
representative, Kiley did not advise about safety features or
performance of the LBI. The record, therefore, does not include
sufficient information to support defendants' defense that they
reasonably relied on PSNH to provide for the safe use of the lift
14 and the truck. In addition, unlike problems that might arise
from supplying hazardous materials or prescription medicines,
where the manufacturer cannot efficiently label or protect the
ultimate user, Simon-Telelect and Kiley would seem to have had
ample opportunity to communicate with the ultimate users of the
aerial lift and utility truck through written warnings, placards,
affixed stickers, or other materials.
Based on the record presented here, defendants have not
carried their burden to show that no reasonable jury could find
in plaintiff's favor as to whether defendants reasonably relied
on PSNH for the safe use of the lift and truck.
Conclusion
For the foregoing reasons, defendants' motions for summary
judgment (documents no. 36 and 34) are denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge
June 2, 1998
cc: Kenneth M. Brown, Esg. Jeffrey H. Karlin, Esg. William J. Thompson, Esg. Shaela M. Collins, Esg.