The opinion of the court was delivered by: LEGROME DAVIS, District Judge
AND NOW, this day of April, 2004, upon consideration of
Defendant-Cross-Claim Defendant Metalcast Systems, Inc.'s
("Metalcast") Motion for Summary Judgment (Dkt. No. 15), IT IS
HEREBY ORDERED that said Motion is GRANTED. IT IS HEREBY
FURTHER ORDERED that judgment is entered in favor of Metalcast
and against Plaintiff Timothy O'Hearn and Defendant-Cross-Claim
Defendant Simpson Technologies Corporation ("Simpson").
Neither Plaintiff nor Simpson opposed Metalcast's Motion, which
was filed on January 23, 2004. "Any party opposing [a] motion
shall serve a brief in opposition . . . within fourteen (14) days
after service of the motion. . . . In the absence of a timely
response, the motion may be granted as uncontested except that a
summary judgment motion, to which there has been no timely
response, will be governed by Fed.R.Civ.P. 56(c)." Local R.
Civ. P. 7.1(c).
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment is appropriate when "there is no genuine
issue of material fact and . . . the moving party is entitled to
a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505 (1986). The
moving party bears the burden of showing that the record
discloses no genuine issues as to any material fact and that he
or she is entitled to judgment as a matter of law. See
Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970). Once the moving party has
met its burden, the non-moving party must go beyond the pleadings
to set forth specific facts showing that there is a genuine issue
for trial. See Fed.R.Civ.P. 56(e); see also Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86,
106 S.Ct. 1348 (1986). There is a genuine issue for trial "if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson, 477 U.S. at 249.
Plaintiff alleges that Metalcast negligently installed the
Simpson multi-cooler. See Compl. ¶¶ 30-33. The testimony of
Victaulic's Corporate Metallurgist, David Sharkus, and Simpson's
Manager of Engineering, Don Bergman, however, undermine this
claim. See Deposition of Don Bergman ("Bergman Dep.") at
128-29; Deposition of David Sharkus ("Sharkus Dep.") at 92-94.
Specifically, Mr. Sharkus and Mr. Bergman testified that they had
no criticisms of Metalcast's installation of the multi-cooler.
See Bergman Dep. at 128-29; Sharkus Dep. at 92-94.
Plaintiff further alleges "that Metalcast was negligent for not
bringing to the attention of Simpson and Victaulic that an
interlock should be installed on the [multi-cooler's] access
door." Report of Glenn Lund at 4. Although Plaintiff did not
assert a negligence claim based on failure to warn in the
Complaint,*fn1 the Court will nevertheless address the
merits of his claim.
In order to establish his negligent failure to warn claim
against Metalcast, Plaintiff must prove the three elements of
Section 388 of the Restatement (Second) of Torts: (1) that the
defendant knew or had reason to know that the chattel was or
likely would be dangerous for the use for which it was supplied;
(2) that the defendant had no reason to believe that those for
whose use the chattel was supplied would recognize the dangerous
condition; and (3) that the defendant failed to exercise
reasonable care to inform those persons of the danger. See
Overbeck v. Cates, 700 A.2d 970, 972 (Pa. Super. 1997). No
evidence has been presented that Metalcast knew or had reason to
know of the dangerousness of the multi-cooler.
Moreover, the principles of a strict liability failure-to-warn
claim are applicable to a failure-to-warn claim under a theory of
negligence. See Shouey v. Duck Head Apparel Co., Inc.,
49 F. Supp.2d 413, 420 n. 3 (M.D. Pa. 1999) (citing Baldino v.
Castagna, 505 Pa. 239, 478 A.2d 807 (1984)); see also W. Page
Keeton, et al., Prosser and Keeton on Torts § 99 at 697 (5th
ed. 1984) ("Although [strict liability for failure to warn] is
sometimes referred to as strict liability, it is really nothing
more than a ground of negligence liability. . . ."). Strict
liability does not extend to an installer of allegedly defective
equipment where the installer has assumed no duty to conduct a
safety analysis or notify the equipment's owner of the alleged
defect. See Maloy v. Doty Conveyor, 820 F. Supp. 217, 220
(E.D. Pa. 1993).
In the present case, neither Simpson nor Victaulic requested or
expected any engineering or safety analysis from Metalcast
regarding the design of the multi-cooler. See Bergman Dep. at
128-29; Sharkus Dep. at 89-90; see also Deposition of Alex
Burgin, Exs. 1-4. Metalcast was simply hired by Victaulic to
install the multi-cooler; it was not expected to provide a design and/or safety analysis of the equipment. See
Deposition of Alex Burgin, Exs. 1-4. Accordingly, summary
judgment in favor of Metalcast is appropriate. ORDER
AND NOW, this day of April, 2004, IT IS HEREBY ORDERED that in
accordance with Rule 58 of the Federal Rules of Civil Procedure,
judgment be entered in favor of Defendant Metalcast ...