The opinion of the court was delivered by: David R. Strawbridge United States Magistrate JUDGE*fn1
James Roy brought this action against Sullair Corporation ("Sullair") and Giles & Ransome, Inc. d/b/a Ransome Rental ("Ransome") seeking damages relating to injuries suffered during his use of an air compressor with hose attachments at his place of employment. The compressor was manufactured by Sullair and supplied to his employer by Ransome with a hose attachment.*fn2
Defendant Ransome has moved for summary judgment as to all claims asserted against it by Plaintiff in his complaint, as well as the cross-claims asserted against it by Sullair in its answer to the complaint. The Court heard oral argument on August 5, 2010. For the reasons set forth below, we will deny Ransome's motion.
II. SUMMARY JUDGMENT STANDARD
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2) (Dec. 1, 2009). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it could be said to affect the outcome of the case under governing law. Id. The moving party bears the initial burden of "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In order to successfully oppose a properly supported motion, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(e)). In reviewing the summary judgment record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The court may not make credibility determinations or weigh the evidence in making its determination. See Anderson, 477 U.S. at 255 (observing that these are jury functions).
III. FACTUAL BACKGROUND*fn3
The papers before us show that Plaintiff was employed by Compass Environmental, Inc. ("CEI"), which had been engaged to encapsulate a hazardous waste site in Malvern, Pennsylvania. This work involved pumping mortar into the ground through a 300-400 yard length of hose. With his co-workers, Roy was responsible at the end of his shift for cleaning equipment, including the long length of hose, also known as grout line, that channeled mortar to the underground site. In order to clean this hose, which is 3" in diameter and resembles a fire hose, the CEI employees used a pump to flush the hose with water and then with anti-freeze. The final step involved flushing the hose with air to remove the water and anti-freeze. For the purpose of pumping air through the grout hose, CEI leased from Ransome an air compressor manufactured by Sullair and 100 feet of 1" compressed air hose. The 1" hose attaches to the air compressor at an exterior connection. At its other end, it attaches to the 3" grout hose - the hose in need of cleaning - via a special fitting.
Near the end of his overnight shift on February 10, 2007, Plaintiff participated in the process to flush out the grout hose in conjunction with co-workers Andrew "Rick" Kruki and "Kyle." The process involved pumping clear water and then the antifreeze through the grout house. When he received word via radio from the crane operator that the antifreeze had finished coming through at the end of the 3" grout hose, which was some 300-400 yards away, Roy disconnected the 3" grout hose from the pump discharge connection and connected it to a 1" diameter compressed air hose that was connected to the Sullair air compressor. Plaintiff then started the air compressor and opened its air release valve to the 1" air hose, which permitted compressed air to flow towards the 3" grout hose to flush out any remaining water or antifreeze. Plaintiff understood "Rick" to have advised "Kyle," via the radio, that air was coming out of the grout hose, which signaled that the grout hose had been cleaned of water and anti-freeze and that the compressor could be turned off. According to Plaintiff's deposition testimony, Plaintiff then turned off the air compressor and fully closed the pressurized air release valve to stop the flow of air into the hoses. He then listened for the sound of escaping pressurized air from the air release valve, as that valve was also used to bleed off the pressurized air in the hoses through a 1/8" diameter hole in the valve in case of any blockage at the other end of the line. Because he did not hear any air emerging from the release valve on the air compressor, and because he understood his co-workers to have confirmed that the lines downstream were clear, Roy concluded that the hoses were depressurized and could be disconnected. He then walked to the area at which the 1" compressed air hose was joined to the 3" grout hose. While he held the 1" hose and "Rick" held the 3" hose, Roy flipped open one of the two cam lock handles on the hose connecting fitting. After hearing a loud hissing noise - which alerted him to the fact that the hoses were not, in fact, depressurized - Roy closed the cam lock handle. Immediately thereafter, however, the connecting fitting blew apart and the open ends of both the 1" air compressor hose and the 3" grout hose whipped about. Plaintiff was struck once in the left shoulder area by what he believes was the 1" air compressor hose. (Roy Dep. 10/29/09 at 89-116; Roy Dep. 11/12/09 at 19-48.)
Ransome had supplied the Sullair air compressor as well as 100 feet of compressed air hose to CEI at the Malvern worksite the previous month. There were no usage instructions attached to the hose describing how to safely and properly disconnect a pressurized hose. In addition, the compressed air hose supplied by Ransome did not have any type of warning labels, tags, or placards alerting the user that pressurized air discharging through the open end of the hose could create a "whipping" action that could cause injury. The air compressor was not equipped with a gauge, clock, or light that would alert the compressor operator that the connected hoses were pressurized. (Hallowell Report at 5, 7-8.)
Plaintiff obtained a written opinion from Richard J. Hallowell Jr., PE, CFC, whose qualifications as an expert in the field of mechanical engineering have not been challenged. Hallowell opined that debris, foreign material, or bits of grout within the hoses plugged the tiny opening in the body of the service valve on the air compressor and thus prevented the full release of compressed air from the connected hose. (Id. at 8.) He opined that the air compressor lacked three components necessary for a safe and reliable operation: (1) a protective filter or screen in the downstream side of the pressurized air release valve, which would have prevented the 1/8" air release opening in the body of the pressurized air release valve from being plugged by debris; (2) an easily visible air pressure gauge to display the air pressure in the connected hoses when the air release valve is initially closed, so that the user can monitor the air pressure levels and disconnect the hoses when the gauge reads zero; and (3) a warning placard or decal on the exterior of the air compressor to warn the user not to disconnect hoses until the pressurized air release valve is fully closed, there is no audible sound of air releasing from the 1/8" air release opening, and the air pressure gauge reads zero. (Id. at 9.) Hallowell opined that Roy's injuries were caused by the defective design of the air compressor, in that the pressurized air release valve on the compressor failed to adequately and properly vent the pressurized air in the connected hose because it was subject to "plugging" from debris when used in an industrial environment similar to the CEI worksite. (Id. at 10.) He also opined that both the air compressor and the compressed air hose lacked adequate labels to warn the user not to disconnect hoses that are not totally depressurized, as this would result in a "whipping" condition that would injure the person disconnecting the hoses. (Id.) In a section of the report devoted specifically to the acts or omissions of Ransome that he believes were contrary to the standard of care, Hallowell opined that Ransome: (1) failed to properly inspect the compressed air hose for the inclusion of proper and adequate use and warning labels; (2) failed to recognize, discover, and correct a dangerous or defective condition, with reference to the fact that hoses that are pressurized can "whip" and cause bodily harm; and (3) failed to comply with governing code requirements, including accident prevention signs or tags as set forth in OSHA standards. (Id. at 10-11.)
Plaintiff filed suit against Sullair and Ransome in the Court of Common Pleas of Philadelphia County on January 27, 2009. (Doc. 15.) His complaint asserts that he sustained serious personal injuries when "the air compressor he was using... malfunctioned...." (Compl. ¶ 5.) He also refers to his employer having "rented the defective equipment from defendant, RANSOME." (Id. ¶ 6.) He asserts negligence, breach of warranty, and strict liability counts against Sullair (id. ¶¶ 9-35), as well as against Ransome (id. ¶¶ 36-64). In the paragraphs in which he sets out the specifics of his various causes of action, he makes reference to "the aforesaid air compressor" or "the product in question." See, e.g., id. ¶ 10(a), (c); ¶ 37 (count against Ransome referring to "the product"); ¶ 56 (count against Ransome averring that "Defendants knew, or in the exercise of reasonable care, should and/or could have known that the aforesaid air compressor would be ultimately sold to the public and would be used by plaintiff..."). When Sullair and Ransome answered Plaintiff's complaint, they each also asserted a cross-claim for contribution and cross-claim for common law indemnification against each other. (Doc. No. 15 (Sullair Ans. dated Mar. 11, 2009; Giles & Ransome Ans. dated Apr. 2, 2009).)*fn4
Ransome has moved for summary judgment on several grounds. First, it contends that Plaintiff's claims against it appear to relate to duties owed concerning the 1" compressed air hose and that such claims are barred by the statute of limitations because they are distinct from the timely-filed complaint that Ransome characterizes as asserting claims involving only duties owed as to the air compressor. Second, Ransome contends that Plaintiff presented insufficient evidence linking his injury to contact with the hose supplied by Ransome as opposed to other hoses. Third, Ransome asserts that Plaintiff has not shown that he would have altered his behavior and avoided injury had he received the warning that he contends should have been included on the air compressor and/or compressed air hose. Finally, Ransome contends that, to the extent that the defective product at issue was a defective air compressor (and not a hose), Plaintiff has failed to support its claim against Ransome with the requisite expert evidence, as the breaches Plaintiff's expert identified as relating to Ransome in particular concerned only the hose, not the air compressor. In response,*fn5 Plaintiff asserts that none of the questions presented by Ransome entitle it to summary judgment and that he has ...