Goodell v. N.V. Michel Van de Wiele SA

• Court: Superior Court of Maine
• Decided: July 27, 2010
• Docket: YORcv-07-314
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV(07-3~4 r /1..?' y~ J /1_,)" '" (Iflc~.-> -~ / UfI.- ,,'0

LYNDA GOODELL, et al.,

Plaintiffs

v. ORDER

N.V. MICHEL VAN de WIELE SA, et al.,

Defendants

Plaintiff Flemish Master Weavers, Inc., brought this action against defendants

N.Y. Michel Van de Wiele SA and Van de Wiele-IRO, Inc., to recover on theories of

strict product liability, breach of warranty, and negligence. The defendants have moved

for summary judgment. The Motion is Granted in part and Denied in part, as follows.

BACKGROUND The plaintiff, Flemish Master Weavers, Inc. ("Flemish"), is a Maine corporation in

the business of manufacturing rugs and carpets. Flemish used to be known as the

Rainbow Rug Co. Defendant N.V. Michel Van de Wiele SA and Van de Wiele-IRO, Inc.

(collectively "VDW") are corporations in the business of designing, manufacturing,

selling, and distributing machinery and equipment used in the manufacture of rugs and

carpets. Defendant DeMol was a corporation that engineered, designed, and

manufactured machinery and equipment used in the manufacture of rugs and carpets,

and would sell and install such machinery.!

DeMol was originally named as a codefendant in this litigation, but was dismissed upon discovery that it had gone bankrupt and ceased to be a going concern. On or about May 5, 1995, Flemish purchased a six-color, six-frame loom from

, the manufacture of face-to-face carpeting. (Supp. S.M.F. <[ 2; Add'l S.M.F. <[ 1.) VDW for

Flemish also purchased from VOW a creel system manufactured by DeMol, to be used

in conjunction with the loom. (Supp. S.M.F. <[ 2.) The system originally consisted of two

upper and two lower creels, with the top and bottom creels being separated by a

particleboard subfloor. (Add'l S.M.F. <[ 2.) Each lower creel was loaded with eight

bobbins, while each upper creel had seven bobbins. (Add'l S.M.F. <[ 2.) Eight-bobbin

creels are common in the industry. (Add'l S.M.F. <[ 9.) The entire loom-and-creel system

functioned in this configuration for approximately five years without incident. (Supp.

S.M.F. <[ 3.)

In the year 2000, Flemish undertook to modify its system in order to accept work

that required an eight-color loom. (Supp. S.M.F. <[ 4.) Flemish contacted VDW, who

agreed to modify the loom but refused to modify the creels. (Supp. S.M.F. <[ 5; see Add'l

S.M.F. <[ 7.) VDW offered to sell Flemish new eight-bobbin creels, and alternatively

referred Flemish to DeMol to modify the existing creels. (Supp. S.M.F. <[ 5.) Flemish

chose to pursue the modification and contacted DeMol. DeMol provided Flemish with

drawings for the project, sold Flemish the necessary parts, and provided personnel to

modify the first creel. (Supp. S.M.F. <[ 8.) Flemish employees modified the remaining

three creels after receiving instruction from DeMol. (Supp. S.M.F. <[ 9.) DeMol billed

Flemish directly for its work. (Supp. S.M.F. <[ 10.)

To modify the creel system, DeMol and Flemish added an eighth row of bobbins

to the upper creels, and added five rows of bobbins to the back of the system. (Add'l

S.M.F. <[ 3.) This added 1,760 bobbins weighing a total of approximately 54,332 pounds

to the system. (Supp. S.M.F. <[ 11.) Only the upper creels were modified, and the

2 original frames and hardware were all reassembled into their original configurations.

(Add'l S.M.F. 9[9[ 14-15.)

While DeMol and Flemish were working on the creels, VDW was on site

modifying the loom. (Opp. S.M.F.

modifications were proceeding and was familiar with the technical changes being

made. (Add'l S.M.F.

or may not have expressed concern to Flemish that the modification could undermine

the system's safety. (Add'l S.M.F.

Flemish had not experienced any problems with the stability of the creels and felt

they were structurally sound before the modifications. (Supp. S.M.F.

there were structural design flaws in the system. (Add'l S.M.F.

of the original system required the bracing to have two bolts drilled in to attqch them to

the subfloor, with washers and/ or plates on the bolts to hold them in place. (Add'l

S.M.F.

(Add'l S.M.F.

structural design problem. (Add'l S.M.F.

evaluated whether the modifications would necessitate additional bracing, and the

original system was not altered. (Supp. S.M.F.

The modified system performed without incident for approximately one year.

Then, on October 11, 2001, one of the upper creels collapsed. (PI.'s CompI. 9[ 14.) Lynda

Goodell, a Flemish employee, was injured in the collapse and Flemish's property was

damaged. (PI.'s CompI. 9[ 14.) When the creel collapsed, the bolts on the subfloor pulled

though the particleboard. (Add'l S.M.F.

Lynda Goodell, her husband Ira Goodell, and Flemish filed a complaint against

VDW, DeMol, and DNS Industries on October 4, 2007. The complaint included counts

3 for strict liability, breach of warranty, negligence, and loss of consortium on behalf of

Ira Goodell. Defendant DeMol was dismissed from the action when the plaintiffs

learned that the company was bankrupt, and DNS Industries was never located or I

served. Plaintiffs Lynda and Ira Goodell resolved their claims through mediation and

have left this litigation. What remains are Flemish's claims for strict liability, breach of

warranty, and negligence against VDW. VDW moves for summary judgment on all

claims.

DISCUSSION

Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);

see also Levine v. R.B.K. Caly Corp., 2001 ME 77, <[ 4, 770 A.2d 653, 655. An issue of "fact

exists when there is sufficient evidence to require a fact-finder to choose between

competing versions of the truth at trial." Inkell v. Livingston, 2005 ME 42, <[ 4, 869 A.2d

745, 747 (quoting Lever v. Acadia Hasp. Corp., 2004 ME 35, <[ 2, 845 A.2d 1178, 1179). Any

ambiguities "must be resolved in favor of the non-moving party." Beaulieu v. The Aube

Corp., 2002 ME 79, <[ 2, 796 A.2d 683, 685 (citing Green v. Cessna Aircraft Co., 673 A.2d

216,218 (Me. 1996)).

VDW contends that it cannot be held strictly liable under product liability

because the creels were not defective when it sold them to Flemish in 1995, and Flemish

significantly modified the creels prior to their collapse in 2001. It argues that the

modification was also an intervening cause relieving it of negligence liability, and

should further insulate it from liability for breach of warranty.

Maine law imposes strict liability on the seller or manufacturer of a defective

product that "is expected to and does reach the user or consumer without significant

change in the condition in which it is sold" and subsequently causes physical harm. 14

4 M.R.S. § 221 (2009); Marois v. Paper Converting Machine Co., 539 A.2d 621, 623 (Me. 1988).

A change, even if substantial, is not "significant unless the change relates to the

essential features and to the safety of the product" and is unforeseeable. Marois, 539

A.2d at 624. Thus, the seller will be liable despite a substantial alteration to its product if

"the modification was, or should have been, foreseen and (a) is a contributing cause of

the injury, or (b) enhances the injury, or (c) increases the likelihood of its occurrence

••• • ff Id.

Initially, there is a question of fact as whether the creels were defective when

VDW first sold them in 1995. VDW argues that they were not defective for their

intended purpose because they functioned without incident for five years. Flemish

points out that the creels were improperly braced and bolted in their original condition.

The Court will assume" that a product defect existed for the purpose of this motion.

If VDW sold defective creels in 1995, and they subsequently caused physical

harm in 2001, VDW should be strictly liable. VDW argues, however, that the

modification performed in 2000 was unforeseeable at the time of sale and was a

significant change absolving VDW of strict liability as a matter of law. Flemish counters

that eight-bobbin creels are common in the industry and VDW could have foreseen that

Flemish would seek to add an eighth row of bobbins to its seven-bobbin creels.

Foreseeability is generally a question of fact. Ames v. DiPietro-Kay Corp., 617 A.2d 559,

561 (Me. 1992). The record does not resolve whether VDW should have foreseen the

modification in 1995, and summary judgment on this point is inappropriate.

VDW may not be relieved from strict liability even if the modification was

unforeseeable in 1995 because VDW had actual notice of the modification in 2000. The

Law Court has not specified whether a significant change must have been unforeseeable

at the time of sale in order to relieve the seller of strict liability under section 221.

5 However, where the buyer of a product gives the seller actual notice and specifications

of the changes to be made as happened in this case, the fact that notice came five years

after the sale should not matter. See Brown v. Crown Equip. Corp., 2008 ME 186, ~ 17, 960

A.2d 1188, 1193 (Law Court found continuing duty to warn of new dangers where

manufacturer knew of hazard, had developed a method to reduce hazard, was in actual

contact with user, and had inspected the offending equipment). There is no question

that the creels VDW sold caused physical harm to Flemish's property. Given that

Flemish told VDW about the modifications, VDW could be strictly liable if it sold the

creels in a defective state and the subsequent modifications were (a) "a contributing

cause of the injury, or (b) enhanced the injury, or (c) increased the likelihood of its

occurrence ...." Marois, 539 A.2d at 624. Questions of fact remain as to whether the

creels were defective and what role the modifications played in their collapse. Summary

judgment is thus denied on Count 1.

The same considerations indicate that summary judgment is inappropriate on

Count III for negligence. To recover for negligence, a plaintiff must show: "(1) a duty

owed to the plaintiff by the defendant; (2) the defendant's breach of that duty; and (3)

injury of the plaintiff by that breach." Brown, 2008 ME 186, ~ 14, 960 A.2d at 1193. VDW

owed Flemish a duty to provide a reasonably safe, non-defective product. Adams v.

Buffalo Forge Co., 443 A.2d 932, 941 (Me. 1982). Whether it did so remains an

unanswered question of fact. However, VDW claims that the modifications relieved it

of any duty to Flemish: This argument really seems to be premised on proximate

causation, i.e. that the modification was an unforeseeable intervening cause of the

accident, "without which the result would not have occurred." Wing v. Morse, 300 A.2d

491,495 (Me. 1973).

6 A negligent act proximately causes harm if it was (a) " a substantial factor in

bringing about the harm, and (b) there is no rule of law relieving the actor from liability

because of the manner in which his negligence has resulted in the harm." [d. at 495-96.

The concept is founded on the foreseeability of the resulting injury and raises a question

of fact. Ames, 617 A.2d at 561. Here, whether VDW sold Flemish a defective product

remains a question of fact. If the creels were defective in 1995, the subsequent

modificatio:t:1's role in causing their collapse remains unclear. A jury will have to

determine whether the modification was foreseeable and how it contributed to

Flemish's injury. VDW's motion for summary judgment on Count III is denied.

Finally, summary judgment is partially denied on Count II, breach of warranty.

Maine's version of the U.e.e. imposes an implied warranty of merchantability in

contracts for sales. 2 11 M.R.S. § 2-312 (2009). As discussed above, whether VDW sold

Flemish defective creels, and whether those original defects proximately caused

Flemish's injury remain unresolved questions of fact. A jury could find from the

evidence presented that the creels were improperly braced when sold, that the

subsequent modifications were both foreseeable and foreseen in fact, and that the

original faulty bracing was a substantial factor in the creels' collapse. The improper

bracing could constitute a breach of warranty and this portion of Count II should

survive VDW's motion.

The U.e.e. also imposes an implied warranty of fitness for a particular purpose

under certain circumstances. 11 M.R.S. § 2-315 (2009).

It requires that: (1) the purchaser have a particular purpose outside the scope of ordinary purposes; (2) the seller at the time of contracting has reason to know of the particular purpose; (3) the seller has reason to know that the purchaser is relying on the seller's skill or judgment to

2 There is no dispute that VDW is a merchant subject to the V.c.e.

7 furnish appropriate goods; and (4) the purchaser must, in fact, rely upon the seller's skill or judgment.

Lorfano v. Dura Stone Steps, Inc., 569 A.2d 195, 197 (Me. 1990). While the loom and creel

system is complex, required numerous specifications, and had to be assembled on site,

Flemish has not shown that it intended to use the system for anything but its usual

purpose. This is simply not a situation where section 2-315 applies, and VDW is granted

summary judgment on Count II insofar as it asserts claims under the warranty of fitness

for a particular purpose. Flemish has not identified any express warranties.

CONCLUSION

VDW's motion for summary judgment on Counts I, II and III insofar as it asserts

a claim under 11 M.R.S. § 2-314's implied warranty of merchantability is Denied.

Summary judgment on Count II to the extent it relates to 11 M.R.S. § 20315's implied

warranty of fitness for a particular purpose or other unidentified warranties is Granted.

The clerk may incorporate this order in the docket by reference.

Dated: JulY2?,2010

ATTORNEY FOR PLAINTIFF: THOMAS MARJERISON AARON K. BALTES NORMAN HANSON & DETROY PO BOX 4600 PORTLAND ME 04112-4600

ATTORNEY FOR DEFENDANT: WENDELL LARGE RICHARDSON WHITMAN LARGE & BADGER PO BOX 9545 PORTLAND ME 04112-9545