The opinion of the court was delivered by: Ambrose, Chief District Judge.
OPINION and ORDER OF COURT
Plaintiff husband was injured when struck in the head by a backhoe. He asserted claims of strict liability and negligence against the equipment manufacturer as well as the seller. Plaintiff wife asserted a claim for loss of consortium. The Defendants seek the entry of summary judgment in their favor on all claims. Because the Plaintiff husband, who was not operating the equipment at the time of the injury, was not an intended user or consumer of the equipment, summary judgment is granted in favor of the Defendants on the strict liability claims. The negligence and loss of consortium claims will go forward.
Plaintiff Thomas Altman ("Altman") was employed by First Energy as part of a team which located underground faults. On July 26, 2003, Altman and others on the team responded to an emergency call. Altman and a co-worker, Andrew Sagulla, determined the exact location of the underground faults and marked the area with paint. A Model 863 G Series Bobcat Skid Steer Loader ("the Loader") with a 709 Backhoe ("the Backhoe") attached to it, was brought in to excavate the area and expose the underground cable so as to facilitate repairs. During the process, Altman was struck with the Backhoe. Altman sustained severe injuries.
Altman has brought suit against Defendants Ingersoll-Rand Company a/k/a Melroe-Ingersoll Rand t/d/b/a Bobcat, Clark Equipment Company, Melroe Company and Bobcat Company ("Bobcat") and Leppo, Inc., d/b/a Leppo Rents, Leppo Equipment, Leppo Rents Bobcat of Akron ("Leppo"). Altman has asserted claims of strict liability and negligence against Bobcat and Leppo. He also initially asserted, then later withdrew, a breach of warranty claim. His wife, Plaintiff Roxanne Altman, has brought a loss of consortium claim.
Both Bobcat and Leppo have filed Motions for Summary Judgment. See Docket Nos. 55 and 58. Both argue that Altman's strict liability claim fails because he was not an "intended user" of the Loader and Backhoe and because the Loader and Backhoe were not unreasonably dangerous according to the "risk/utility" analysis. Both also contend that Altman's negligence claim fails as a matter of law. Bobcat also seeks the entry of summary judgment on the loss of consortium claim and seeks an amendment of the caption. Altman opposes the entry of summary judgment on all claims.
After careful consideration, and for the reasons set forth below, the Motions are granted in part and denied in part.
Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56©. A fact is material when it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rule 56 mandates the entry of judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, the Court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
Altman contends that Bobcat and Leppo are strictly liable because the Loader and Backhoe "lacked adequate safeguards, had improper warnings and [the Defendants] provided inadequate and dangerous instructions to the operator of the Backhoe." See Docket No. 65, p. 2. Thus, Altman's strict liability claim is based both upon a design defect and upon a failure to warn. Both strict liability claims are governed ...