The opinion of the court was delivered by: Joyner, District Judge.
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
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
I. LEGAL STANDARD
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.
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)).
II. FEDERAL PREEMPTION OF STATE LAW CLAIMS
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:
15 U.S.C. § 2075(a). There is a consumer product safety standard
under the CPSA that applies to the risk of injury associated with
walk-behind lawn mowers. See 16 C.F.R. § 1205.1 et seq.
("Safety Standard for Walk-Behind Power Lawn Mowers"). Thus, the
CPSA preempts Plaintiff's case if both: (1) Plaintiff proposes
safety standards that are not identical to the requirements of
the Federal standard; and (2) the CPSA preemption applies to a
state law damages action.
Plaintiff Response identifies the following defects that
Plaintiff claims existed in the lawn mower manufactured and sold
by Defendants: (1) the edge of the blade and the rear of the
mower deck were not separated by at least three and one half
inches; (2) the rear trailing rubber shield was not rigid enough
and should have been made out of a different material; (3) the
lawn mower should have had a warning that specifically addressed
the danger of pulling the lawn mower over one's foot. See
Plaintiff's Response to Defendants' Motion for Summary Judgment
at § II.D. In addition, Plaintiff's expert, Dr. Ali M. Sadegh,
argued during his deposition that the blade stop time should have
been shorter. See Deposition of Ali M. Sadegh at 117. The
question is whether these safety standards are identical to the
Plaintiff proposes this safety standard to prevent the entry of
a foot into the mower deck area. See Plaintiff's Response to
Defendants' Motion for Summary Judgment at § II.D. However, there
is already a CPSA regulation covering the risk of entry
of body parts into the mower deck area, which requires a "foot
probe" test to be done to determine whether the mower has
appropriate protection from the entry of a foot into the mower
deck area. See 16 C.F.R. § 1205.4. Plaintiff's proposed safety
standard is for a fixed distance, whereas there is a federal
regulation on point which requires a "foot probe" test. Thus,
Plaintiff's regulation differs from the federal regulation.
Plaintiff argues that the standard set out in 16 C.F.R. § 1205.4
effectively requires "a distance of 3.15 inches . . . from
the edge of the shield (housing) to the tip of the blade circle."
However, as Defendants point out, the regulation requires no such
thing. Rather, 16 C.F.R. § 1205.4 sets out a test to be done,
using a "foot probe." Defendants have provided a "CPSC and ANSI
Conformance Verification," indicating that MTD Products, Inc. has
performed the required test on the model in question, and that
the mower passed the "foot probe" test set out in
16 C.F.R. § 1205.4. See Defendants' Motion for Summary Judgment, Ex. D.
Plaintiff, meanwhile, has not submitted any evidence that his
expert even performed this test on the same model mower used by
Plaintiff. And, of course, neither party was able to perform this
test on the actual mower used by Plaintiff, because that mower
has been lost.
The rear trailing rubber shield was not rigid
enough and should have been made out of a different
The rigidity of the real trailing rubber shield is covered by
16 C.F.R. § 1205.4 ("Walk-behind rotary power mower protective
shields"). The regulation limits how stiff the shield can be by
requiring that the shield not "stop the mower as a result of
contact with the raised obstacle [that is established by the
test]." Plaintiff acknowledges that his expert has not described
what stiff material the shield should be made out of. See
Plaintiff's Response at II.D. Again, Defendants have submitted
evidence that the mower in question complied with the federal
regulation, and Plaintiff has not offered any evidence to the
contrary. See Defendants' Motion for Summary Judgment, Ex. D.
Plaintiff's proposed regulation is different from the federal
The lawn mower should have had a warning that
specifically addressed the danger of pulling the lawn
mower over one's foot.
Federal regulations establish the warnings to be used for
walk-behind power lawn mowers. See 16 C.F.R. § 1205.6 ("Warning
label for reel-type and rotary power mowers"). Defendants have
submitted evidence that the mower in question carried these
warnings, and Plaintiff has not offered any evidence to the
contrary. See Defendants' Motion for Summary Judgment, Ex. D.
Plaintiff proposes additional warnings that the mower should have
carried that are not identical to the federal warnings.
The blade stop time should have been shorter.
Federal regulations require that the blade must come to a
complete stop "within 3.0 seconds after release of the control."
See 16 C.F.R. § 1205.5(a)(1)(iii). Plaintiff's expert guessed
that the mower in question had a stop time of ten seconds, but he
acknowledged that he performed no tests to confirm this guess.
See Deposition of Ali M. Sadegh at 117. Defendants have
submitted evidence that the mower in question complied with the
federal requirement. See Defendants' Motion for Summary
Judgment, Ex. D. Plaintiff has thus produced no evidence that the
mower in question did not comply with the federal standard, and
any "shorter" stop time that Plaintiff proposes necessarily is
not identical to the federal regulation.
B. CPSA Preemption of a State Law Damages Action
It is clear, as discussed above, that Plaintiff's proposed
safety standards are not identical to on-point federal safety
standards. Thus, if the preemption clause in the CPSA applies to
a state law damages action, Plaintiff's case will be
preempted because the proposed requirements are not "identical to
the requirements of the Federal standard." 15 U.S.C. § 2075(a).
The question of whether a federal pre-emption clause preempts
state law damages actions was addressed by the Supreme Court in
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608,
120 L.Ed.2d 407 (1992). In Cipollone, the Supreme Court
addressed whether the explicit preemption clause in the Federal
Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et
seq., precluded a state law damages action. The Court held that
the preemption clause in the 1965 law did not preempt state law
damages actions, because the clause contained narrow language
barring only a state's requiring any "statements" in the
advertising of cigarettes. See Cipollone at 518, 112 S.Ct.
2608. However, this clause was amended in 1969 to bar "not simply
`statements' but rather `requirements or prohibitions . . .
imposed under State law.'" Id. at 520, 112 S.Ct. 2608. Further,
the 1969 amendment "reaches beyond statements `in the
advertising' to obligations `with respect to the advertising or
promotion' of cigarettes." Id. This amended version of the
preemption clause was found to preempt any state law damages
action. The Supreme Court stated, "[t]he phrase `no requirement
or prohibition' sweeps broadly and suggests no distinction
between positive enactments and common law. . . ." Id. at 521,
112 S.Ct. 2608.
The question, then, is whether the pre-emption clause contained
in the CPSA is more like the 1965 preemption clause discussed in
Cipollone, or the 1969 amended version of that preemption
clause. The CPSA preemption clause 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 injury associated with such consumer product,
unless such requirements are identical to the
requirements of the Federal standard.
15 U.S.C. § 2075(a). This text broadly prohibits "any provision
of a safety standard or regulation which prescribes any
requirements . . .," a phrase that sounds distinctly parallel to
the phrase "no requirement or prohibition" that led the Supreme
Court to find preemption of state law damages actions in
Cipollone. In Cipollone the Supreme Court cited to Black's
definition of a tort as "always [involving] a violation of some
duty owing to Plaintiff," Black's Law Dictionary 1489 (6th ed.
1990), and stated, "common-law damages actions of the sort raised
by petitioner are premised on the existence of a legal duty, and
it is difficult to say that such actions do not impose
`requirements or prohibitions.'" Cipollone at 522, 112 S.Ct.
2608. In this case, a state law damages action would clearly
"establish . . . a safety standard or regulation," which would in
this case be prohibited under the preemption clause of the CPSA.
Plaintiff points to the "Savings Clause" in the CPSA, arguing
that this clause saves his claim. The "Notes of Decisions"
annotations following 15 U.S.C. § 2075 point to a case from the
Northern District of California that addressed this issue. The
case addressed the Savings Clause in the CPSA, which reads
"[c]ompliance with consumer product safety rules or other rules
or orders under this chapter shall not relieve any person from
liability at common law or under State statutory law to any other
person." 15 U.S.C. § 2074. The Court determined that the Savings
Clause could not contradict the rest of the Act, and that
therefore it must only maintain those state law damages actions
"whose enforcement would not result in imposition of requirements
with respect to a matter already being regulated by federal
authorities under the CPSA." Cortez v. MTD Prods., 927 F. Supp. 386,
391 (N.D.Cal. 1996). The Eighth Circuit reached the same
conclusion in Moe v. MTD, 73 F.3d 179, 182 (8th Cir. 1995). The
Court finds these decisions persuasive, and thus finds that the
Savings Clause in the CPSA does not preserve Plaintiff's claim in
this case. Plaintiff's claim would clearly "result in imposition
of requirements or regulations with respect to a matter already
being regulated by federal authorities under the CPSA," Cortez
at 391, because Plaintiff proposes safety requirements to deal
with risks of injury already regulated by federal regulations
adopted under the CPSA. See 16 C.F.R. § 1205.
DEFENDANTS' OTHER ARGUMENTS FOR SUMMARY JUDGMENT
Defendants also argue that they should be granted summary
judgment because: (1) Plaintiff lost the mower; (2) Plaintiff has
failed to put forward appropriate evidence required for a design
defect case; (3) Plaintiff failed to state a proper claim for
inadequate warning under Pennsylvania law; and (4) social policy
analysis, which is required in a design defect case under
Pennsylvania law, weighs against finding that the mower in this
case was unreasonably dangerous. See Defendants' Motion for
Summary Judgment at 19-33. However, because the Court has found
that Plaintiff's design defect claims are all preempted by the
CPSA, the Court need not address these additional arguments.
Plaintiff's claims are all based upon a set of alleged design
defects in the mower manufactured and sold by Defendants.
Plaintiff's expert witness has proposed a set of design standards
for lawn mowers such as the mower used by Plaintiff. However, the
risk of the injury suffered by Plaintiff is already regulated by
regulations passed under the CPSA. Accordingly, the preemption
clause of the CPSA preempts Plaintiff's state law damages claims.
An appropriate Order follows.
AND NOW, this ____ day of May, 2000, upon consideration of
Defendants' Motion for Summary Judgment (Document No. 21), and
the responses of the parties thereto, it is hereby ORDERED, in
accordance with the foregoing memorandum, that the Motion is
GRANTED. Summary Judgment shall be ENTERED in favor of