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May 23, 2000


The opinion of the court was delivered by: Joyner, District Judge.


Plaintiff has filed this action against Heckinger Stores Company*fn1 and MTD Products, Inc., stating four claims: two claims of negligence, one claim of "strict liability" and one claim for breach of warranty. Presently before the Court is Defendants' Motion for Summary Judgment. For the reasons that follow, the motion is granted.


The facts of the case are simple. Plaintiff, Joseph Frazier, tripped on an unidentified object while mowing his lawn with a walk-behind lawn mower on May 12, 1996. At the time that he tripped, Plaintiff was pulling back on the mower. He held on to the mower as he fell, continuing to grasp the blade control handles. During his fall, Plaintiff's left foot passed under the mower, causing the mower blade to sever his big toe. Plaintiff then brought this action against Defendants.

After the suit was filed, Plaintiff's lawn mower disappeared. The mower had been held in a storage locker in the office building of Plaintiff's counsel for approximately two years. Plaintiff's Memorandum states that "[s]ometime during the winter months of 1998 the lawn mower was stolen from Plaintiff's counsel's storage area." Plaintiff's Response to Defendants' Motion for Summary Judgment at II.C. However, Plaintiff's counsel tells a different story in a letter to Defendants' counsel. The letter states:

[S]ometime in approximately March of 1998 the ownership of this building decided to convert the above mentioned storage areas to useable office space. All the tenants were advised to remove all of their property from the storage area. Sometime in the spring of 1998 I personally went back to the storage room assigned to my law firm. When I went in there the lawn mower was gone.

Defendants' Motion for Summary Judgment, Ex. I. Thus, it appears from this letter that the mower was not stolen, but rather removed by building management after first notifying Plaintiff's counsel.



Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Our responsibility is not to resolve disputed issues of fact, but to determine whether any factual issues exist to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The presence of "a mere scintilla of evidence" in the nonmovant's favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505). Rather, we will grant summary judgment unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256, 106 S.Ct. 2505. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).


Defendants argue that Plaintiff's claims, all of which are state law claims, are preempted by the Consumer Products Safety Act ("CPSA"), 15 U.S.C. § 2051 et seq. The CPSA, which has as one of its stated purposes "to minimize conflicting State and local regulations," 15 U.S.C. § 2051(b)(3), includes an explicit preemption clause. The Act states:

Whenever a consumer product safety standard under this Act is in effect and applies to a risk of injury associated with a consumer product, no State or political subdivision of a State shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging, or labeling of such product which are designed to deal with the same risk of ...

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