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Roth v. Norfalco

March 28, 2008


The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court


(Chief Judge Kane)

Before the Court is Defendant's motion to dismiss Plaintiffs' amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The parties have briefed the motion, and it is ripe for disposition. For the reasons that follow, the motion will be denied.


Plaintiff David Roth*fn1 brings this action for injuries sustained when he unloaded a shipment of sulfuric acid sold by Defendant NorFalco and large amounts of acid sprayed onto his face, causing severe burns. (Am. Compl. ¶¶ 11, 13, 14.) The acid sold by NorFalco was delivered to Roth's employer via a railroad tank car. Roth alleges that the car contained various components that NorFalco allegedly designed, manufactured, and/or assembled for use in unloading the acid. (Am. Compl. ¶ 18.) The railroad tank car did not, however, have certain pressure gauges or valves, which the Plaintiffs claim would have prevented Roth's injuries. (Am. Compl. ¶ 19.)

The Roths filed this action on July 25, 2006, alleging tort and breach-of-warranty claims, and seeking recovery for loss of consortium. (Doc. No. 1.) NorFalco moved to dismiss several of the Roths' claims. (Doc. No. 7.) The Roths thereafter filed an amended complaint (Doc. No. 12), rendering NorFalco's motion to dismiss moot (Doc. No. 21). NorFalco filed the instant motion to dismiss (Doc. No. 13) seeking to dismiss the Roths' strict liability and breach of warranty claims, along with a supporting brief (Doc. No. 15). The Roths filed a brief in opposition (Doc. No. 17), to which NorFalco replied (Doc. No. 20).


A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) is properly granted when, accepting all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Although the moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2007), the complaint must allege facts sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)," Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (internal citations omitted). Moreover, in order to satisfy federal pleading requirements, a plaintiff's complaint must "provide the grounds of his entitlement to relief [beyond] labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (internal brackets and quotation marks omitted) (quoting Twombly, 127 S.Ct. at 1964-65).


In their amended complaint, the Roths bring five counts: a products-liability claim (Count I); a strict-liability claim (Count II); a negligence claim (Count III); a breach-of-warranty claim (Count IV); and a loss-of-consortium claim (Count V). In the instant motion to dismiss, NorFalco seeks the dismissal of the Roths' strict-liability claims (Counts I and II) and breach-of- warranty claim (Count IV). NorFalco contends that the strict-liability claims must fail because NorFalco did not manufacture, sell, or distribute a defective product, and because distribution of sulfuric acid is not an "abnormally dangerous activity." NorFalco further contends that the breach-of-warranty claim must fail because no sale occurred and because no product was warranted. The Court will address each argument in turn.

A. Strict Liability Because of a Defective Condition

Pennsylvania follows the products-liability rule set forth in § 402A of the Restatement (Second) of Torts. Webb v. Zern, 220 A.2d 853 (1966); see Moyer v. United Dominion Indus., 473 F.3d 532, 538-41 (3d Cir. 2007).*fn2 Section 402A provides that "[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer . . . if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold." Restatement (Second) of Torts § 402A.

NorFalco contends that because it "was not a manufacturer or seller" of railroad tank cars-it only used them to ship sulfuric acid-it cannot be held liable for any defects in the railroad tank car. In other words, NorFalco argues that it cannot be held liable under § 402A because it did not sell a defective product. Although NorFalco did not manufacture or sell the railroad tank car, for the purposes of strict liability under § 402A, the railroad tank car and the sulfuric acid contained within it are a single product. As the comments to the Restatement (Second) of Torts § 402A explains:

[A] defective condition may arise not only from harmful ingredients, not characteristic of the product itself either as to presence or quantity, but also from foreign objects contained in the product, from decay or deterioration before sale, or from the way in which the product is prepared or packed. No reason is apparent for distinguishing between the product itself and the container in which it is supplied; and the two are purchased by the user or consumer as an integrated whole. Where the container is itself dangerous, the product is sold in a defective condition. Thus a carbonated beverage in a bottle which is so weak, or cracked, or jagged at the edges, or bottled under such excessive pressure that it may explode or otherwise cause harm to the person who handles it, is in a defective and dangerous condition. The container cannot logically be separated from the contents when the two are ...

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