Dooley v. Parker-Hanifin

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]
                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

          No. 93-1459

                                     JAY DOOLEY,

                                Plaintiff, Appellant,

                                          v.

                         PARKER-HANNIFIN CORPORATION, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                                 ____________________

Before

                                 Breyer, Chief Judge,
                                         ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

Amato A. DeLuca with  whom Mandell, DeLuca & Schwartz,  Ltd.
               _______________            _________________________________
          was on brief for appellant.
               Raymond A. LaFazia  with whom Kevin  S. Cotter and  Gunning,
               __________________            ________________      ________
          LaFazia & Gnys, Inc. were on brief for appellees.
          ____________________

____________________

                                   October 21, 1993
                                 ____________________

Per  Curiam.   In this  appeal, plaintiff-appellant
                      ____________

            Jay Dooley claims  that the district court erred  in granting

            defendant-appellee   Parker-Hannifin  Corporation   ("Parker-

            Hannifin")1 summary  judgment on  the  issues of  negligence,

            breach of warranty  and strict liability.   Finding no error,

            we affirm.     

                                          I.
                                          I.
                                          __

                                  Standard of Review
                                  Standard of Review
                                  __________________

                      Our review  of  summary judgment  decisions  is  de
                                                                       __

            novo, reading the record  in the light most favorable  to the
            ____

            non-moving party.  See, e.g., Rivera-Marcano v. Normeat Royal
                               ___ _____  ______________    _____________

            Dane  Quality A/S,  998 F.2d  34, 37  (1st Cir.  1993)(citing
            _________________

            August  v. Offices  Unlimited, Inc., 981  F.2d 576,  580 (1st
            ______     ________________________

            Cir.  1992)).   Summary  judgment  is  appropriate only  when

            "there is no  genuine issue  as to any  material fact"  based

            upon  the pleadings, depositions,  and affidavits,  and where

            "the moving party  is entitled to a  judgment as a matter  of

            law."  Fed. R. Civ. P.  56(c).  In determining whether a fact

            is  material,  a  court  must  consider whether  it  has  the

            "potential to affect the outcome of the suit under applicable

            law."  Nereida-Gonzalez v.  Tirado-Delgado, 990 F.2d 701, 703
                   ________________     ______________

            (1st  Cir.  1993).   While  we will  "indulge  all reasonable

            inferences" in  the  nonmovant's favor,  Santiago v.  Sherwin
                                                     ________     _______

____________________

            1.  References to Parker-Hannifin apply equally to all  named
            appellees.

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                                          2

Williams Co., No. 92-2263, slip op. at 8 (1st  Cir. Sept. 10,
            ____________

            1993),   we  will  not   consider  "`conclusory  allegations,

            improbable inferences, and unsupported speculation.'"  Dow v.
                                                                   ___

            United Bhd. of  Carpenters and  Joiners, 1 F.3d  56, 58  (1st
            _______________________________________

            Cir. 1993)(quoting Medina-Munoz v. R.J. Reynolds Tobacco Co.,
                               ____________    _________________________

            896 F.2d 5, 8 (1st Cir. 1990)).

                                         II.
                                         II.
                                         ___

                       Factual Background and Prior Proceedings
                       Factual Background and Prior Proceedings
                       ________________________________________

                      Parker-Hannifin  is  a  supplier,  inter  alia,  of
                                                         _____  ____

            aeronautics parts to the United States  Government.  Prior to

            1986,  Parker-Hannifin contracted with  American Tube Bending

            Co.  ("ATB") for  tubing  to be  processed  and delivered  to

            Parker-Hannifin   in    accordance   with   government-issued

            specifications.    ATB,  or  some  entity  acting  under  its

            direction,  designed  and manufactured2  a holding  die which

            fit into a  hydraulic press machine owned  by ATB.   This die

            was used to bend  and form the tubing in accordance  with the

            government  specifications.     In  1986,   Tubodyne  Company

            acquired this holding  die,3 as well  as ATB's press  machine

____________________

            2.  There  is  no  evidence  regarding  who  manufactured  or
            designed the original die.  It is conceded, however, that the
            work was performed either  by ATB or at ATB's  direction, and
            not by Parker-Hannifin.

            3.  Dooley contends that the die is owned by Parker-Hannifin.
            Although there is ample  evidence in the record to  show that
            Tubodyne  passes  both its  cost  of producing  the  dies and
            ownership  on to its customers, there is no evidence that ATB
            had the same practice.   Parker-Hannifin denies ownership and
            offers in evidence the fact that  it never listed the die  as

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                                          3

when  ATB  sold  Tubodyne  its  assets  and  customer  lists.

            Parker-Hannifin subsequently became a customer of Tubodyne. 

                      By 1988, due  to normal wear and  tear, the holding

            die was not gripping the metal tubing effectively.   Tubodyne

            informed Parker-Hannifin  of the problem and a representative

            of Parker-Hannifin  observed the  worn die.   Parker-Hannifin

            then allegedly  approved an  extension to  the die which  was

            supposed to result  in a  better grip of  the material to  be

            formed.4 Parker-Hannifin  did not have any part in the design

            or  manufacture  of the  actual  extension.5   Viewed  in the

            light  most favorable  to the  plaintiff, the  evidence shows

            that Parker-Hannifin approved Tubodyne's plan 1) to alter the

            die as  Tubodyne saw  fit;  and 2)  to pass  the  cost on  to

____________________

            an asset of the company.  We need not solve this controversy,
            however, since we do not find ownership to be a material fact
                                                            ________
            in this dispute.

            4.  There is no direct  evidence of this approval.   The only
            evidence on record is  Dooley's contention that the president
            of Tubodyne,  Norman MacLeod,  Jr., told Dooley  that Parker-
            Hannifin's  approval was  necessary  before he  could add  an
            extension, and the deposition testimony of Tubodyne's general
            manager, Jeanie Juckett, who stated that although she did not
            remember any specific conversation with  Parker-Hannifin, she
            "assumed that they gave  their blessing since we did  put the
            extensions [sic] on."

            5.  Dooley argues that Parker-Hannifin's approval of the idea
            of an  extension, without more, amounts to its having "played
            a  significant role  in  the design  and  manufacture of  the
            extension."  While  we must  recount the facts  in the  light
            most  favorable to the nonmoving party,  we are not compelled
            to credit  conclusory allegations unsupported  by the record.
            See Dow, 1 F.3d at 58.
            ___ ___

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                                          4

Parker-Hannifin.6    Tubodyne,  or  some   entity  under  its

            direction, then  designed and manufactured the  extension.7  

On  June  30,  1988,  Jay  Dooley,  an  experienced

            Tubodyne employee, was assigned to form aircraft exhaust duct

            tubing for Parker-Hannifin.  After attaching the die with the

            newly  designed extension  to  the press  machine, he  became

            concerned  that  the  extension  and the  machine  created  a

            potentially   dangerous  pinch   point.     Although   Dooley

            complained to Tubodyne management  about the possible risk of

            injury, he nevertheless operated  the machine and crushed his

            thumb between the extension and the press machine.

                      In  June  of  1991, Dooley  commenced  a  diversity

            action against Parker-Hannifin,  alleging negligence,  breach

            of implied and express  warranties and strict tort liability.

            Parker-Hannifin  subsequently  filed  a  motion  for  summary

            judgment  which the  district  court granted.   The  district

            court found that Parker-Hannifin was not negligent because it

            did  not  owe a  duty to  Dooley,  and was  not  liable under

____________________

            6.  However, once again,  there is no direct evidence to show
            that Tubodyne ever charged Parker-Hannifin for the extension.
            Although Juckett and MacLeod stated in their depositions that
            it is their usual practice to charge for such  modifications,
            the  plaintiff was  not able  to produce an  invoice charging
            Parker-Hannifin for the extension.

            7.  Neither  MacLeod  nor  Juckett   could  remember  if  the
            extension was manufactured in-house or outside, at Tubodyne's
            direction. 

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                                          5

warranty or strict liability theories because Parker Hannifin

            was not the seller of  the die or its extension.   Dooley now

            appeals from that final judgment.

                                         III.
                                         III.
                                         ____

                                      Discussion
                                      Discussion
                                      __________

                      Dooley  argues on  appeal that  the district  court

            applied  the wrong  standard in  determining whether  Parker-

            Hannifin owed him  a duty  of due care.   More  specifically,

            Dooley  claims that Parker-Hannifin  was negligent by failing

            to  ensure that  the die  and extension  were safe  for their

            intended use.  He asserts that  this duty stems from the fact

            that:   (1) Parker-Hannifin allegedly  owned the die  and the

            extension; (2) an agent of Parker-Hannifin allegedly observed

            the die malfunction  before the extension was  added; and (3)

            an agent of  Parker-Hannifin allegedly approved the  addition

            of the extension.   Dooley further  argues that the  district

            court  erred in finding that no issue of material fact exists

            on the issues of breach of warranty and strict liability.  We

            address each argument in turn.

            A.  Negligence
            A.  Negligence
            ______________

                      In  order to  make  out a  viable negligence  claim

            under  Rhode  Island law,8  one  must first  establish,  as a

            matter of  law, that a  duty exists.   See  Banks v.  Bowen's
                                                   ___  _____     _______

____________________

            8.  The  parties do not dispute that Rhode Island law applies
            in this diversity action.

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                                          6

Landing Corp., 522 A.2d 1222, 1224 (R.I. 1987)(citing Barratt
            _____________                                         _______

            v.  Burlingham, 492 A.2d 1219, 1220 (R.I. 1985)); Welsh Mfg.,
                __________                                    ___________

            Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436, 440
            _____________________    _________________

            (R.I. 1984).  The Rhode Island Supreme Court has stated:

                      In  considering  whether  a duty  exists,
                      among  the factors considered are (1) the
                      foreseeability of harm to  the plaintiff,
                      (2)  the  degree  of  certainty  that the
                      plaintiff  suffered  an  injury, (3)  the
                      closeness   of  connection   between  the
                      defendant's   conduct   and  the   injury
                      suffered,  (4)  the policy  of preventing
                      future  harm, and (5)  the extent  of the
                      burden   to   the   defendant   and   the
                      consequences   to   the   community   for
                      imposing  a duty  to  exercise care  with
                      resulting liability for breach.

            Banks, 522 A.2d at 1225.9   In light of these factors and the
            _____
                                
            ____________________

            9.  Dooley  argues that  the standard  announced in  Banks is
                                                                 _____
            "inapposite to the present matter."   In so doing, he cites a
            line of  cases  delineating  duties  owed  by  manufacturers,
            designers, sellers, suppliers and  lessors of goods.  Because
            Parker-Hannifin does not fit into any of these categories, we
            find these cases, rather than Banks, to be inapposite.
                                          _____
                 Dooley also urges us to apply Barron v. Honeywell, Inc.,
                                               ______    _______________
            69 F.R.D. 390  (E.D. Pa.  1975) and to  reverse the  district
            court  on this basis.  Even if  we were to find Barron, which
                                                            ______
            applied Pennsylvania  law, to be persuasive  authority, it is
            clearly distinguishable from the  instant matter.  In denying
            a motion for summary judgment, the court in Barron found that
                                                        ______
            the defendant, the owner of a defective plastics machine, had
            leased the  machine to  a plastics manufacturer.   The  court
            ______
            further  noted that  the defendant,  who also  bought plastic
            parts from the  lessee, had required the  manufacturer to use
            the malfunctioning  machine to produce his  parts even though
            the  defendant had  observed  the machine  malfunction on  at
            least  two  separate occasions.   Id.  at  392.   The present
                                              ___
            situation, however, is very different.   There is no evidence
            that an agent of Parker-Hannifin ever saw the extension on or
            off the machine.   Dooley  points to his  own deposition  for
            support  of  the  proposition  that  an  agent  saw  the  die
            malfunction before  the extension was added.   However, there
                        ______
            is  no  allegation that  the  die  was dangerous  before  the
                                                   _________

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                                          7

record  evidence,  we  agree  with the  district  court  that

            Parker-Hannifin,  which did not  design, manufacture, sell or

            control the die extension, owed no duty to Dooley.

                      As    noted    earlier,   Parker-Hannifin's    only

            connections  to  Dooley's  injury10  were  its  approval  and

            alleged  ownership of  the  die extension.   We  find neither

            factor sufficient  to support a duty  for negligence purposes

            in this case.   Parker-Hannifin never possessed or controlled

            the  extension that Tubodyne,  Dooley's employer, designed to

            fit  its own press machine.   It is  not alleged that Parker-

            Hannifin ever saw  the extension or knew how it  would fit or

            operate in Tubodyne's machinery.  Accordingly, we do not find

            that the injury  to Dooley was  a foreseeable consequence  of

            any action on the part of Parker-Hannifin.11  

                      Nor do  we find a close  connection between Parker-

            Hannifin's approval  of  the extension  and Dooley's  injury.

            Several factors, such as  Tubodyne's design of the extension,

            Dooley's  prior   knowledge  of  the   potentially  dangerous

            condition, and  Tubodyne's insistence that Dooley operate the

            machine despite  Dooley's perception of the  inherent danger,
                                
            ____________________

            extension was added.  Thus, if the agent saw anything, it was
            only that the  die did  not properly grip  the metal.  Dooley
            does not argue,  nor could he on  the record before us,  that
            the  malfunction  that  the   agent  allegedly  saw  was  the
            proximate cause of his injury.

            10.  Neither party disputes the actuality of Dooley's injury.

            11.  See generally supra note 9.
                 ___ _________ _____

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                                          8

intervened  and  served   to  distance   an  already   remote

            relationship.  See Banks, 522 A.2d at 1225.  
                           ___ _____

                      Finally,  we do  not believe  that imposing  a duty

            upon  Parker-Hannifin, on this record, could possibly further

            a  policy of  preventing future  harm.   On the  contrary, as

            aptly noted  by the  district court,  holding Parker-Hannifin

            responsible for  protecting employees it did  not employ from

            risks  of injury associated with  the use of  machines it did

            not  design,   manufacture,   sell  or   control   would   be

            "unreasonable  and  would  impose  a  substantial  burden  on

            Parker-Hannifin without any commensurate decrease in the risk

            of future injuries."    Dooley v.  Parker-Hannifin Corp., 817
                                    ______     _____________________

            F.  Supp. 245, 247 (D.R.I.  1993).  By  their own admissions,

            before  any injury  occurred, both  Dooley and  Tubodyne were

            aware of  the potentially dangerous condition  created by the

            interaction between the extension Tubodyne designed and their

            machine  which Dooley operated.   They were in  a position to

            prevent this injury.  Parker-Hannifin was not.

                      Accordingly,  we   find  no  duty  and  affirm  the

            district   court's  finding  that   Parker-Hannifin  was  not

            negligent.   

            B.  Breach of Warranty
            B.  Breach of Warranty
            ______________________

                      Although Rhode Island has a significant body of law

            regarding  warranties,   that  law  deals   exclusively  with

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                                          9

warranties made  by "sellers."12  Here,  Dooley concedes that

            Parker-Hannifin   is  not  the  seller  of  the  die  or  its

            extension.  Nonetheless, he urges  this court to expand Rhode

            Island  law  and find  that  Parker-Hannifin,  though a  non-

            seller, had  extended a warranty  to the plaintiff.   Leaving

            aside the  merits of plaintiff's highly  dubious proposition,

            we  reiterate that "a plaintiff  who `selects a federal forum

            in  preference to an available state forum may not expect the

            federal   court  to  steer   state  law   into  unprecedented

            configurations.'"    Santiago, No.  92-2263,  slip  op. at  9
                                 ________

            (quoting  Martel v. Stafford,  992 F.2d 1244,  1247 (1st Cir.
                      ______    ________

            1993)).  Here,  the reading  Dooley seeks would,  to say  the

            least, be a significant expansion of state law.  Accordingly,

            we affirm the  district court's grant of  summary judgment on

            this issue.

            C.  Strict Liability
            C.  Strict Liability
            ____________________

                      Appellant's  strict  liability  claim   is  equally

            meritless.   In  Rhode  Island, strict  liability applies  to

            "[o]ne  who  sells any  product  in  a defective  condition."
                         _____

            Restatement (Second) Torts,   402A (1965)(emphasis supplied);
                                
            ____________________

            12.  Under  Rhode   Island  law,  there  is   a  warranty  of
            merchantability implied in contracts  where the "seller" is a
            merchant with respect to  goods of the type sold.   R.I. Gen.
            Laws    6A-2-314 (1992).   Express or implied  warranties may
            arise when a "seller"  makes representations about a product.
            R.I. Gen.  Laws   6A-2-313 (1992).  Finally a "seller" may be
            held  liable for  personal injuries  which are  the proximate
            result  of a  breach of  warranty.   R.I. Gen.  Laws    6A-2-
            715(2)(b)(1992).

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                                          10

see  also  Ritter v.  Narragansett  Elec. Co.,  283  A.2d 255
            ___  ____________     _______________________

            (1971) (adopting Restatement (Second)  Torts,   402A).  Here,

            as has been noted, Parker-Hannifin is not a seller of dies or

            extensions.  Thus, there  is no basis under Rhode  Island law

            for holding it liable in strict liability.

                                         IV.
                                         IV.
                                         ___

                                      Conclusion
                                      Conclusion
                                      __________

                      For  the reasons  set  forth above,  we affirm  the

            district court's grant of summary judgment.  

                      Affirmed.
                      Affirmed.
                      ________

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