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MARK RAND,
v. ORDER
SWISS ARMY BRANDS,
Defendant.
Before the court is a motion for summary judgment by defendant Swiss Army
Brands. Swiss Army Brands is seelung to dismiss a one count strict liability complaint
brought pursuant to 14 M.R.S. 5 221 in whch plaintiff Mark Rand alleges that Swiss
Army Brands marketed a defective knife that was unreasonably dangerous to
consumers and that broke, causing injury to h s eye.
Summary judgment should be granted if there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. In considering a
motion for summary judgment, the court is required to consider only the portions of the
record referred to and the material facts set forth in the parties' Rule 56(h) statements.
& Johnson v. McNeil, 2002 ME 99, ¶ 8, 800 A.2d 702, 704. The facts must be
considered in the light most favorable to the non-moving party. Id. Thus, for purposes
of summary judgment, any factual disputes must be resolved against the movant.
Nevertheless, when the facts offered by a party in opposition to summary judgment
would not, if offered at trial, be sufficient to withstand a motion for judgment as a
matter of law, summary judgment should be granted. Rodrigue v. Rodri~ue,1997 ME
99 q[ 8,694 A.2d 924, 926. At the time the motion was filed, there was a procedural controversy between
the parties. Rand's counsel contended that Swiss Army did not timely respond to
Rand's opposition papers. Swiss Army's counsel contacted the clerk's office to state
that Swiss Army had never received Rand's opposition papers. The court instructed the
clerk to advise counsel for Swiss Army to file its reply papers as soon as possible.
Thereafter, after considering the respective contentions of the parties as set forth in
letters dated August 4 and August 8, 2006 the court concluded that Swiss Army had at
least met the excusable neglect standard in M.R.Civ.P. 6(b) and ruled that it would
consider the motion on its merits including Swiss Army's reply papers. See Order
dated August 11, 2006 n.1.'
Undisputed Facts
Accepting plaintiff's version of the facts in the event of any factual disputes and
considering the facts in the light most favorable to plaintiff, the summary judgment
record establishes that on December 20, 1999, Rand was using a kmfe marketed by
Swiss Army when the blade broke and a piece of the blade struck his right eye.
Plaintiff's Additional Statement of Material Facts (ASMF) 'j 52. In support of his
contention that Swiss Army marketed the knife in question (model no. 40603) "in a
defective condition unreasonably dangerous to a user or consumer," see 14 M.R.S. §
221, Rand primarily relies on the testimony of Fredrick Hochgraf, an expert
metallurgist.
' There have been other mailing problems in this case. For example, the court file contains a letter from plaintiff's counsel that was dated April 3, 2006 but was not received until May 16, 2006. Indeed, the original letter for plaintiff's counsel complaining that Swiss Army did not reply to Rand's opposition papers is dated July 27,2006 but was not received by the clerk's office until August 28,2006.
2 Hochgraf testified at his deposition that the knife broke because it was
overstressed, and he testified that the knife could have been made stronger with a small
increase in thickness. Hochgraf Dep. 178, 167. He testified that there were no
manufacturing or metallurgical defects in the kmfe. Hochgraf Dep. 51, 178-79. He
further testified that the polypropylene handle had no deleterious effects on the steel of
the blade and that the temperature reached during the molding process did not
adversely affect the temper of the steel. Id.91.
Hochgraf stated that "a portion" of the knife's failure was due to a design defect.
Id. 51. However, asked directly what design defects there were with respect to the -
knife, Hochgraf answered as follows:
That's whether the - the knife was strong enough for the service it's being sold into.
Id. 179. Hochgraf also testified that "there are applications in whch this knife is a - hundred percent satisfactory, and there are applications in which the knife is a hazard."
Although expressing the opinion that the knife should not be used in high stress
applications, id. 99, Hochgraf stated that he had not analyzed the use of the knife with
respect to any specific applications. Id.104.
While expressing the view that the issue that needs to be resolved is whether the
knife is sufficiently strong for the market into whch it was being sold, Hochgraf stated
unequivocally that he had not formed an opinion on that subject. Hochgraf Dep. 181.
Asked by plaintiff's counsel whether a krufe marketed as a paring or vegetable
knife would be appropriate in the commercial fishing industry, Hochgraf did not offer
an opinion. Id.193. Asked if there was an alternative design that would have been
appropriate for the commercial fishng industry, Hochgraf said only, " h c k e r would be
stronger." Id. Hochgraf testified that he has not done any research into the area of warnings,
their effectiveness, or how people respond to warnings, and he has not offered any
opinions about warnings in h s case. Hochgraf Dep. at 79-80, 191-92. He also testified
that he has no expertise in aspects involving human factors. Id.191.
The summary judgment record also contains evidence that Swiss Army
marketed the Model No. 40603 knife as a paring krufe suitable for vegetables and that a
division of Swiss Army also marketed a group of Victorinox knives, including the
Model No. 40603, as "our most popular commercial fishing knives" and "the best knife
for boat, gear, and deck work." Plaintiff's ASMF ¶¶ 21, 22 and Exhibits B and C thereto
(Bates Stamp 00373).
The evidence in the summary judgment record from Mark Rand is that he did
not obtain any specific information about the Model No. 40603 krufe before his accident,
and he never saw any advertisements or promotional materials before purchasing it.
Defendant's SMF ¶ 20. Rand stated that the Model No. 40603 was one of the knives in a
display case at Vessel Services, a vendor to commercial fisherman. Rand Dep. 62;
Defendant's Response to Plaintiff's ASMF q[ 35.
Rand has used Model No. 40603 kruves since 1985. Plaintiff's ASMF ¶ 43. The
knife has had a range of uses in h s fishing operations - for shop use, maintenance, gear
use, cutting rope - "what we've been doing with them for the last 20 years." Rand Dep.
68. He testified that he would not use a Model 40603 krufe to cut a large diameter line -
"a big piece of rope." Id.49. Rand testified that of the various knives available at Vessel Services, he made the choice as to which knife to pick. Id.113.
Rand further stated his opinion that the problem with the Model 40603 was that
it was being sold for work in the fishng industry and the krufe "couldn't do what it was represented to do" and "didn't meet their qualification at this point in time." Rand
Dep. 98.
Rand testified he was aware of 3-10 prior instances in which a Model No. 40603
knife had broken in the course of commercial fishing operations. He had seen one of
those instances himself and had been told of other instances. Rand Dep. 44-47.
Discussion
Liability in this case is premised on Maine's strict liability statute, w h c h
provides:
One who is selling any goods or products in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to a person whom the manufacturer, seller, or supplier might reasonably have expected to use, consume or be affected by the goods, or to his property if the seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without significant change in the condition in which it is sold. This section applies although the seller has exercised all possible care in the preparation and sale of h s product and the user and consumer has not bought the product from or entered into any contractual relation with the seller.
14 M.R.S. €J 221. T h s statute was taken directly from section 402A of the Restatement
(Second) of Torts. See Bernier v. Raymark Industries, Inc., 516 A.2d 534, 537-38 (Me.
Under Restatement 3 402A and the statute, a product may be in a defective
condition because of a defect in the manufacturing process, because of a defect in
design, or because of a failure to warn of a product hazard. Bernier, 516 A.2d at 437 n.3. Rand does not contend there was a manufacturing defect but relies instead on alleged
defectiveness in design and upon a failure to warn of a product h a ~ a r d . ~
On plaintiff's claim of defective design, plaintiff has failed to generate a disputed
issue for trial as to the existence of a design defect. First, there is a substantial question
whether the equivocal testimony of plaintiff's expert, combined with h s failure to offer
opinions on salient issues in the case, is sufficient to meet plaintiff's burden of
demonstrating the existence of disputed issues for trial as to the existence of a design
defect.
Second, even overlooking the sketchiness of plaintiff's evidence, it appears to be
misdirected. Plaintiff's expert opined that at "portion" of the knife's failure was due to
a design defect, but when asked to specify the defect, he responded that the question
was whether the knife was strong enough for the market into which it was sold.
Hochgraf Dep. 51,179,181. T h s is not a design defect but a question of suitability. It is
also a question on which plaintiff's expert stated he had not formed an opinion. Id.181.
Plaintiff's expert also stated that there were no defects in the design of the Model No.
40603 knife as a paring h f e . Id.185.
As noted in Restatement 3d of Torts: Product Liability, CJ 1 comment a, if design
defects or defects based on inadequate warnings are found to exist, "then every unit in
the same product line is potentially defective." In other words, a claim of defective
design under Restatement CJ 402A and 14 M.R.S. CJ 221 requires that the design of a knife
be inherently defective, not merely defective for some uses while perfectly adequate for
In his counsel's memorandum opposing summary judgment, Rand indicates at one point that he is relying on alleged manufacturing and design defects rather than on a failure to warn. See Plaintiff's Memorandum of Law in opposition to motion for summary judgment, dated July 10, 2006, at 4. However, the remainder of his memorandum addresses alleged defective design and an alleged failure to provide warnings and omits any argument with respect to manufacturing defects. Moreover, the summary judgment record does not present any disputed issues for trial as to the existence of any manufacturing defect. others. The question of whether the Model No. 40603 knife is adequate for commercial
fishing uses may raise an issue as to whether Swiss Army's misrepresented the
suitability of the knife - a subject discussed further below in connection with
Restatement 2d Torts 9 402B -but does not raise a triable issue of fact under 14 M.R.S. §
221 and Restatement 2d Torts § 402A.
Plaintiff's claim that the knife was defective because it was not accompanied by a
warning fails for the same reason - the warning sought by plaintiff is that the Model
40603 knife was not suitable for commercial fishing. This constitutes a
misrepresentation claim rather than a section 221 claim. Restatement 3d Torts:
Product Liability § 1, comment a (quoted above), noting that defective warning claims
like defective design claims must apply to every unit in the same product line.
Plaintiff's failure to warn claim has several another other difficulties. First, he has
offered no expert testimony in support of that claim. Second, even assuming that expert
testimony would not be necessary, a duty to warn only arises when the manufacturer or
distributor "knew or should have known" of a danger sufficiently serious to require a
warning. Pottle v. UP-Ri~htInc, 628 A.2d 672, 675 (Me. 1993); Bernier v. Ravmark
Industries Inc., 516 A.2d at 540. In opposition to Swiss Army's motion for summary
judgment, Rand has not offered any evidence that generates a disputed issue for trial on
whether Swiss Army knew or had reason to know of the need for a warning.
The overall problem with all of plaintiff's arguments is that they are based on the
theory that Swiss Army promoted the Model No. 40603 knife for commercial fishing
uses for which it was allegedly unsuitable. See Plaintiff's July 10,2006 Memorandum of
Law in Opposition to Motion for Summary Judgment at 5-6:
Swiss Army sold the Model No. 40603 kmfe as a commercial fishing knife, for all deck and gear uses, knowing it was merely a thin-bladed lutchen paring knife with limited strength . . . Swiss Army could have warned, but failed to do, that the knife had limited uses, lacked the strength for heavy-strength use, and should not have been used as a "gear" knife in the commercial fishing industry . . . Swiss Army deliberately marketed the flimsy lutchen knife for heavy-duty commercial use.3
A claim that Swiss Army promoted the Model No. 40603 krufe for commercial
fishing activities for which that krufe was unsuitable and dangerous to the user is a
claim that, although not cognizable under Restatement 5 402A, may be cognizable were
Restatement 2d Torts 5 402B.4 However, the court is not prepared to allow this action to
proceed under 5 402B for two reasons. First, at this point in the case, where plaintiff has
relied solely on section 402A and 14 M.R.S. § 221 in h s pleadings, where all discovery is
concluded, and where a motion for summary judgment has been filed, the court will
not on its own motion allow plaintiff to switch horses in midstream and proceed under
section 402B.
Second, section 402B requires justifiable reliance upon a defendant's
misrepresentation. Indeed, one of the reasons to require a plaintiff to proceed under
section 402B when he is alleging that a product is not suitable for its advertised
purposes is that, if he were allowed to proceed under section 402A, he would escape the
requirement of proving justifiable reliance.
Plaintiff's memorandum also contends that Swiss Army knew from previous experience that the blade of the Model 40603 knife would break and that plaintiff relied on Swiss Army's promotion that the knife was suitable for work on a commercial fishing boat. Id. The court disregards those statements because the summary judgment record does not demonstrate any prior knowledge by Swiss Army that the knife would break and because plaintiff's allegations that Rand relied on Swiss Army's promotions is contradicted by the record. See Rand Dep. 63-65; see also the admissions in plaintiff's pwn additional statement of material facts. Plaintiff's ASMF q[¶ 46,49. Restatement 2d Torts § 402B provides as follows: One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character of uality of a chattel sold by him is subject to liability for physical harm to a consumer of k e chattel caused by justifiable reliance upon the misrepresentation, even though (a) it is not made fraudulently or negligently; and (b) the consumer has not bought the chattel from or entered into any contractual relations with the seller. In this instance, the summary judgment record refutes any claim of justifiable
reliance on any misrepresentation by Swiss Army. Plaintiff did not see or receive any
advertising or marketing information with respect to the Model No. 40603 knife.
Defendant's SMF q[ 20; plaintiff's ASMF ¶¶ 46, 49. Even if plaintiff were permitted to
change theories at this point in the case, therefore, Swiss Army would be entitled to
summary judgment on any misrepresentation claim under Restatement § 402B.
- Defendant's motion for summary judgment dismissing the complaint is granted
for the reasons set forth in this order. The clerk is directed to incorporate t h s order in
DATED: March 6 ,2007
Thomas D. Warren Justice, Superior Court COURTS ~dCounty IX 287 041 12-0287
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