Gilson v. Grapek Company, et al. 03-CV-478-SM 06/17/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Aaron Gilson and Ami Gilson, Plaintiffs
v. Civil No. 03-CV-478-SM Opinion No. 2005 DNH 095 Grapek Company and Parker-Hannifin Corporation, Defendants
O R D E R
Aaron and Ami Gilson have sued Grapek Company and Parker-
Hannifin Corporation1 in ten counts for injuries Aaron Gilson
allegedly received when the hose of a tar sprayer exploded,
covering his hand and fingers with hot tar. Before the court is
Parker-Hannifin's motion for summary judgment on all six of the
counts against it (Counts I, II, IV, VI, VIII, and X ) .
Plaintiffs object. For the reasons given, defendant's motion for
summary judgment is granted in part and denied in part.
1 A third defendant, Graco, Inc., has been dismissed, with prejudice, with the assent of all parties. Summary Judgment Standard
Summary judgment is appropriate when the record reveals "no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fe d . R. C i v . P.
56(c). "A 'genuine' issue is one that could be resolved in favor
of either party, and a 'material fact' is one that has the
potential of affecting the outcome of the case." Calero-Cerezo
v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986)).
"The role of summary judgment is to pierce the boilerplate of the
pleadings and provide a means for prompt disposition of cases in
which no trial-worthy issue exists." Quinn v. City of Boston,
325 F.3d 18, 28 (1st Cir. 2003) (citing Suarez v. Pueblo Int'l,
Inc., 229 F.3d 49, 53 (1st Cir. 2000)). When ruling on a party's
motion for summary judgment, the court must view the facts in the
light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor. See Lee-Crespo v.
Schering-Plough Del Caribe Inc., 354 F.3d 34, 37 (1st Cir. 2003)
(citing Rivera v. P.R. Agueduct & Sewers Auth., 331 F.3d 183, 185
(1st Cir. 2 003)).
2 Background
In November, 2000, plaintiff Aaron Gilson was a foundation
waterproofer, and in that occupation he used a high-pressure tar
spraying system designed and manufactured by former defendant
Graco and distributed by defendant Grapek. One component of the
tar spraying system was a whip hose manufactured by Parker-
Hannifin. The whip hose connects a spray nozzle to a larger hose
which, in turn, connects to a tank that holds hot tar. On
November 3, 2000, while Aaron Gilson was using the tar spraying
system, the whip hose failed, which resulted in hot tar being
discharged onto his hand and fingers.
As a result of his injuries, Aaron Gilson and his wife Ami
sued Parker-Hannifin, Graco, and Grapek, in ten counts. Against
Parker-Hannifin, they asserted claims of strict liability (Count
I), res ipsa loguitur (Count II), negligent design and
manufacture, including failure to warn (Count IV), negligent
failure to test and inspect (Count VI), breach of express
warranty (Count VIII), and breach of implied warranty (Count X ) .
3 Discussion
A. Count I
In Count I, plaintiffs assert that the whip hose
manufactured by Parker-Hannifin was unreasonably dangerous due to
design and manufacturing defects. Defendant moves for summary
judgment on grounds that plaintiffs' expert's deposition does not
support a finding that the whip hose was originally sold in a
defective condition. Plaintiffs counter that genuine issues of
material fact preclude summary judgment, and refine their strict
liability count to include claims that the whip hose was
defectively designed because it did not include spring guards and
did not include effective warnings.
Regarding the spring-guard claim, plaintiffs' expert. Dr.
Wilson, testified that the whip hose failed at a location that
was subject to high repeating stress and that high repeating
stress can be relieved or reduced by use of a spring guard, which
made the absence of a spring guard a design defect. Defendant
counters by pointing to additional testimony from Dr. Wilson
tending to suggest that the responsibility for deciding whether
4 to use a spring guard falls to individual users and that if Aaron
Gilson's employer purchased the hose, without a spring guard,
from a middleman, he would not be critical of Parker-Hannifin.
Acceptance of defendant's argument would reguire crediting one
part of the expert's deposition over another. In other words,
defendant asks the court to resolve a material factual issue that
appears to be disputed. Such fact guestions, however, are for
the trier of fact, not the court on summary judgment.
Defendant's motion for summary judgment on plaintiffs'
failure-to-warn claim suffers from a similar infirmity.
According to defendant, plaintiffs' expert "is unable to say,
more probably than not, that . . . a warning would have made any
difference" and "[h]e would have to speculate as to whether or
not such a warning would have made a difference in this case."
While it appears that expert testimony will be necessary to
assist the jury in deciding the issue of causation, the expert's
inability to determine whether Gilson's employer would have
heeded an adeguate warning regarding the use of spring guards
does not entitle defendant to summary judgment. It is for the
5 jury to determine, from all of the evidence, whether an adequate
warning would have been effective.
Plaintiffs have identified several genuine issues of
material fact related to their strict liability claims that must
be resolved by a jury. Defendant is not entitled to judgment as
a matter of law on Count I .
B. Count II
Defendant also moves for summary judgment on Count II on
grounds that res ipsa loquitur is not a cause of action. "Res
ipsa loguitur 'is merely a rule identifying the elements of
circumstantial evidence that are sufficient to get a plaintiff's
case to the jury and allow the jury to return a plaintiff's
verdict." Durocher v. Rochester, 137 N.H. 532, 536 (1993)
(quoting Cowan v. Tryolean Ski Area, Inc., 127 N.H. 397, 400)).
Because the res ipsa loguitur doctrine is neither a theory of
liability nor a cause of action, Parker-Hannifin is entitled to
summary judgment on Count II. Count II is also dismissed, sua
sponte, as to Grapek.
6 C. Count IV
Count IV is, in essence, plaintiffs' strict product
liability claim, restated as a negligence claim. Defendant moves
for summary judgment on grounds that plaintiffs cannot prove that
the whip hose was defective when it left the factory.
Defendant's argument, however, is based upon the proposition that
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Gilson v. Grapek Company, et al. 03-CV-478-SM 06/17/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Aaron Gilson and Ami Gilson, Plaintiffs
v. Civil No. 03-CV-478-SM Opinion No. 2005 DNH 095 Grapek Company and Parker-Hannifin Corporation, Defendants
O R D E R
Aaron and Ami Gilson have sued Grapek Company and Parker-
Hannifin Corporation1 in ten counts for injuries Aaron Gilson
allegedly received when the hose of a tar sprayer exploded,
covering his hand and fingers with hot tar. Before the court is
Parker-Hannifin's motion for summary judgment on all six of the
counts against it (Counts I, II, IV, VI, VIII, and X ) .
Plaintiffs object. For the reasons given, defendant's motion for
summary judgment is granted in part and denied in part.
1 A third defendant, Graco, Inc., has been dismissed, with prejudice, with the assent of all parties. Summary Judgment Standard
Summary judgment is appropriate when the record reveals "no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fe d . R. C i v . P.
56(c). "A 'genuine' issue is one that could be resolved in favor
of either party, and a 'material fact' is one that has the
potential of affecting the outcome of the case." Calero-Cerezo
v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986)).
"The role of summary judgment is to pierce the boilerplate of the
pleadings and provide a means for prompt disposition of cases in
which no trial-worthy issue exists." Quinn v. City of Boston,
325 F.3d 18, 28 (1st Cir. 2003) (citing Suarez v. Pueblo Int'l,
Inc., 229 F.3d 49, 53 (1st Cir. 2000)). When ruling on a party's
motion for summary judgment, the court must view the facts in the
light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor. See Lee-Crespo v.
Schering-Plough Del Caribe Inc., 354 F.3d 34, 37 (1st Cir. 2003)
(citing Rivera v. P.R. Agueduct & Sewers Auth., 331 F.3d 183, 185
(1st Cir. 2 003)).
2 Background
In November, 2000, plaintiff Aaron Gilson was a foundation
waterproofer, and in that occupation he used a high-pressure tar
spraying system designed and manufactured by former defendant
Graco and distributed by defendant Grapek. One component of the
tar spraying system was a whip hose manufactured by Parker-
Hannifin. The whip hose connects a spray nozzle to a larger hose
which, in turn, connects to a tank that holds hot tar. On
November 3, 2000, while Aaron Gilson was using the tar spraying
system, the whip hose failed, which resulted in hot tar being
discharged onto his hand and fingers.
As a result of his injuries, Aaron Gilson and his wife Ami
sued Parker-Hannifin, Graco, and Grapek, in ten counts. Against
Parker-Hannifin, they asserted claims of strict liability (Count
I), res ipsa loguitur (Count II), negligent design and
manufacture, including failure to warn (Count IV), negligent
failure to test and inspect (Count VI), breach of express
warranty (Count VIII), and breach of implied warranty (Count X ) .
3 Discussion
A. Count I
In Count I, plaintiffs assert that the whip hose
manufactured by Parker-Hannifin was unreasonably dangerous due to
design and manufacturing defects. Defendant moves for summary
judgment on grounds that plaintiffs' expert's deposition does not
support a finding that the whip hose was originally sold in a
defective condition. Plaintiffs counter that genuine issues of
material fact preclude summary judgment, and refine their strict
liability count to include claims that the whip hose was
defectively designed because it did not include spring guards and
did not include effective warnings.
Regarding the spring-guard claim, plaintiffs' expert. Dr.
Wilson, testified that the whip hose failed at a location that
was subject to high repeating stress and that high repeating
stress can be relieved or reduced by use of a spring guard, which
made the absence of a spring guard a design defect. Defendant
counters by pointing to additional testimony from Dr. Wilson
tending to suggest that the responsibility for deciding whether
4 to use a spring guard falls to individual users and that if Aaron
Gilson's employer purchased the hose, without a spring guard,
from a middleman, he would not be critical of Parker-Hannifin.
Acceptance of defendant's argument would reguire crediting one
part of the expert's deposition over another. In other words,
defendant asks the court to resolve a material factual issue that
appears to be disputed. Such fact guestions, however, are for
the trier of fact, not the court on summary judgment.
Defendant's motion for summary judgment on plaintiffs'
failure-to-warn claim suffers from a similar infirmity.
According to defendant, plaintiffs' expert "is unable to say,
more probably than not, that . . . a warning would have made any
difference" and "[h]e would have to speculate as to whether or
not such a warning would have made a difference in this case."
While it appears that expert testimony will be necessary to
assist the jury in deciding the issue of causation, the expert's
inability to determine whether Gilson's employer would have
heeded an adeguate warning regarding the use of spring guards
does not entitle defendant to summary judgment. It is for the
5 jury to determine, from all of the evidence, whether an adequate
warning would have been effective.
Plaintiffs have identified several genuine issues of
material fact related to their strict liability claims that must
be resolved by a jury. Defendant is not entitled to judgment as
a matter of law on Count I .
B. Count II
Defendant also moves for summary judgment on Count II on
grounds that res ipsa loquitur is not a cause of action. "Res
ipsa loguitur 'is merely a rule identifying the elements of
circumstantial evidence that are sufficient to get a plaintiff's
case to the jury and allow the jury to return a plaintiff's
verdict." Durocher v. Rochester, 137 N.H. 532, 536 (1993)
(quoting Cowan v. Tryolean Ski Area, Inc., 127 N.H. 397, 400)).
Because the res ipsa loguitur doctrine is neither a theory of
liability nor a cause of action, Parker-Hannifin is entitled to
summary judgment on Count II. Count II is also dismissed, sua
sponte, as to Grapek.
6 C. Count IV
Count IV is, in essence, plaintiffs' strict product
liability claim, restated as a negligence claim. Defendant moves
for summary judgment on grounds that plaintiffs cannot prove that
the whip hose was defective when it left the factory.
Defendant's argument, however, is based upon the proposition that
neither the absence of a spring guard nor the absence of a
spring-guard warning can constitute negligence in design or
manufacture. It is not apparent, as a matter of law, that
defendant is correct, and the attendant factual and legal issues
are insufficiently developed to permit such a finding. Defendant
is not entitled to summary judgment on Count IV.
D. Count VI
Count VI states a second negligence claim for failure to
test and inspect. As with Count IV, defendant offers no
admissible evidence in support of its motion for summary
judgment, but simply relies upon the disputed proposition that
the whip hose was free from defects. Accordingly, defendant's
motion for summary judgment on Count VI is also denied.
7 E. Counts VIII and X
Defendant argues it is entitled to summary judgment on
plaintiffs' two breach of warranty claims because plaintiffs
cannot prove a defect in manufacture, design, or warning. The
court rejected that argument in denying summary judgment on
plaintiffs' strict liability and negligence claims. Defendant is
also not entitled to summary judgment on Counts XIII and X.
Conclusion
For the reasons given, defendant's motion for summary
judgment (document no. 26) is granted with respect to Count II
but is otherwise denied. The case shall remain on track for
trial of the remaining nine claims.
SO ORDERED.
Steven J. McAuliffe Chief Judge
June 17, 2005
8 cc: Kenneth G. Bouchard, Esq. Robin C. Curtiss, Esq. William McCandless, Esq. Christopher J. Poulin, Esq.