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SCHLIER v. MILWAUKEE ELEC. TOOL CORP.

October 29, 1993

ERIC SCHLIER, Plaintiff,
v.
MILWAUKEE ELECTRICAL TOOL CORP., Defendant.



The opinion of the court was delivered by: EDUARDO C. ROBRENO

 OCTOBER 29, 1993

 EDUARDO C. ROBRENO, J.

 Presently before the Court is defendant's Motion for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50(a). Defendant made its Motion at the conclusion of plaintiff's case-in-chief.

 I. DISCUSSION

 A. Standard for Rule 50(a) Motions

 Federal Rule of Civil Procedure 50(a)(1) provides that "if during a trial by jury a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against that party on any claim, counterclaim, cross-claim, or third party claim that cannot under the controlling law be maintained without a favorable finding on that issue." Fed. R. Civ. P. 50(a)(1). As the Third Circuit earlier this year explained, a motion for judgment as a matter of law may be granted "only if, viewing the evidence in the light most favorable to [the non-moving party] and giving [the non-moving party] the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury could reasonably find liability." Wittekamp v. Gulf & Western, Inc., 991 F.2d 1137, 1141 (3d Cir. 1993), cert. denied, 126 L. Ed. 2d 256, 1993 U.S. LEXIS 6383, 114 S. Ct. 309 (U.S. Oct. 12, 1993). In this diversity case, Pennsylvania substantive law applies. Applying the Rule 50(a) standard and for the reasons that follow, *fn1" defendant's Motion will be granted.

 B. Evidence Introduced During Plaintiff's Case-in-Chief

 Plaintiff claims to have sustained an injury to his leg on June 21, 1989 while operating a circular power saw in the course of his employment. He is proceeding against the manufacturer of the saw on three theories of liability: strict liability, negligence, and breach of warranty. After summarizing the evidence introduced during plaintiff's case-in-chief, I shall discuss each of plaintiff's claims seriatim.

 Plaintiff's entire case-in-chief consisted of the testimony of plaintiff himself, plus the introduction of a photograph of the circular power saw that plaintiff claims was defective, a photograph of his leg shortly after surgical stitches were removed, his medical records, and a summary sheet showing the amounts of his lost wages and medical expenses resulting from his injury. The defendant stipulated to the amounts of lost wages and medical expenses.

 Plaintiff testified that he was familiar with the use of a power saw like the one at issue and he had used one at home since about age fourteen. He had received some training with similar tools during wood shop and also to a lesser extent during metal shop at school. At the time of the accident, he was nineteen years of age.

 From about the beginning of 1989 through the date of plaintiff's injury on or about June 21, 1989, plaintiff was employed by Johnson Fabricators, during which time he used the saw about four or five times a week. When the accident occurred, he was using the saw to cut long wooden boards into three-foot long pieces for disposal. To accomplish this task, plaintiff sat the boards on a forklift with the section of the board to be cut extended over the side of the fork to the right of plaintiff. The boards were approximately two feet off the ground. He kneeled on his left knee as he cut the boards, holding the board being cut with his left hand and the circular power saw with his right hand.

 As plaintiff sawed the wood in this manner on the day of the accident, he noticed that the saw was buckling and that a couple of teeth were missing from the blade. He asked his supervisor for a new blade, but was told there was none available. Instead, he got another used blade to replace the one that was on the saw, and replaced it before resuming the job. Although the saw continued to buckle when he resumed its use, plaintiff did not stop for that reason. Instead, plaintiff experienced a powerful "kickback" in the nature of a sudden reversal of direction of the tool towards the operator. The saw struck plaintiff in the right leg, creating a laceration above plaintiff's knee and extending up much of the length of his thigh.

 Plaintiff explained that, in his experience, kickbacks do occur in the course of using this type of power saw, but that he had never experienced one as powerful as the one causing the accident. The saw at issue is equipped with a guard that is supposed to close in the event of a kickback. Plaintiff had checked the guard earlier that day and it appeared to be working properly. Plaintiff admitted during his deposition that the accident occurred in a "split second," such that he did not see whether the guard in fact did not close as it normally would. Plaintiff further testified that in his experience kickbacks may be caused by use of dull blades. Finally, plaintiff said he recalled the ...


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