Collins v. Tool Exchange, et al.

2002 DNH 091

• Court: District Court, D. New Hampshire
• Decided: May 8, 2002
• Docket: CV-01-302-M
• Status: Published

Opinion

Collins v. Tool Exchange, et a l . CV-01-302-M 05/08/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Thomas A. Collins, Jr. and Diane M. Collins, Plaintiffs

v. Civil No. 01-302-M Opinion No. 2002 DNH 091 The Tool Exchange LLC and Black and Decker, Inc., Defendant(s)

O R D E R

Plaintiffs have sued in six counts to recover for damages

allegedly suffered as a result of injuries that Thomas Collins

sustained while operating a used Black & Decker miter saw he

purchased from The Tool Exchange LLC ("The Tool Exchange").

Before the court is The Tool Exchange's motion to dismiss those

portions of plaintiffs' complaint that assert claims against it

based upon a theory of strict product liability. Plaintiffs

object. For the reasons given below. The Tool Exchange's motion

to dismiss is granted.

According to plaintiffs' complaint, Thomas Collins was

injured while operating a miter saw manufactured by Black & Decker and sold to him, used, by The Tool Exchange. The Tool

Exchange argues that, as a matter of law, it cannot be held

liable to plaintiffs under a theory of strict liability.1 In New

Hampshire, the seller of a used power tool cannot be held liable

under a theory of strict liability. See Brigham v. Hudson

Motors, Inc., 118 N.H. 590, 597 (1978) (declining to extend "the

doctrine of strict liability in tort to one engaged in the

business of selling used vehicles"). Thus, The Tool Exchange is

entitled to the relief it seeks: dismissal of those portions of

plaintiffs' complaint that assert claims against it based upon a

theory of strict liability.

Many of the counts in the complaint appear to assert

multiple theories of recovery against multiple defendants, based

upon multiple sets of facts. Because the complaint is not

drafted with precision and is broadly worded, identifying in fact

1 Rather than challenge the legal basis of The Tool Exchange's motion to dismiss, plaintiffs simply point to various theories of recovery, other than strict liability, that are asserted in their complaint. However, The Tool Exchange does not challenge those assertions, nor has it moved to dismiss all of plaintiffs' claims. The Tool Exchange argues only that it may not be held liable under a theory of strict liability, and moves the court to dismiss just those parts of the complaint asserting that theory of recovery.

2 what parts of what counts are dismissed is difficult.

Accordingly, plaintiffs shall, within thirty days of the date of

this order, file and serve on defendants an amended complaint

that plainly sets forth, in a more organized way, specific

theories of recovery against specific defendants based on

identified factual assertions, so that defendants may have fair

notice as to what they must defend against.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 8, 2 002

cc: Edwinna C. Vanderzanden, Esq. William A. Mulvey, Jr., Esq. Cynthia L. Fallon, Esq.