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Salvatore Facciponte, Jr v. Briggs & Stratton

February 11, 2011

SALVATORE FACCIPONTE, JR.,
INDIVIDUALLY AND AS CO-ADMINISTRATOR
OF THE ESTATE OF SALVATORE
FACCIPONTE, III, DECEASED;
DEBORAH P. FACCIPONTE,
INDIVIDUALLY AND AS CO-ADMINISTRATOR
OF THE ESTATE OF SALVATORE FACCIPONTE,
III,DECEASED;
STEVEN JAY LARSON, INDIVIDUALLY
AND AS CO-ADMINISTRATOR OF THE
ESTATE OF ANDREW THOMAS LARSON,
DECEASED;
MARY AGNES HIGGINS-LARSON, AS
CO-ADMINISTRATOR OF THE ESTATE OF
ANDREW THOMAS LARSON;
MICHAEL F. MCGOVERN, SR.,
INDIVIDUALLY AND AS CO-ADMINISTRATOR
OF THE ESTATE OF MICHAEL F. MCGOVERN,
JR.,DECEASED;
THERESA L. MCGOVERN,
INDIVIDUALLY AND AS CO-ADMINISTRATOR
OF THE ESTATE OF MICHAEL F. MCGOVERN,
JR., DECEASED; AND
MARY ANN WATT,
INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MICHAEL P. HOPKINS,
DECEASED, PLAINTIFFS
v.
BRIGGS & STRATTON
CORPORATION; AND
TRUE VALUE COMPANY, DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

Judge Munley

MEMORANDUM

Before the court are motions for summary judgment by defendants and joinder defendants. Having been fully briefed, the matters are ripe for disposition.

Background

This cases arises from the tragic death of four young men, Salvatore Facciponte III, Andrew Larson, Michael McGovern, Jr. and Michael Hopkins, on February 9, 2008. The previous day, Andrew Larson had borrowed a portable generator owned by his father, a contractor. (Statement of Material Facts of Third-Party Defendants Steven and Mary-Agnes Larson (hereinafter "Larson Statement") (Doc. 39) at ¶ 8). Andrew Larson and his three friends wanted to use the generator to provide power at a residential home in East Stroudsburg, Pennsylvania. (Id.; Statement of Uncontested Facts of Defendants Briggs & Stratton Company and True Value Company (hereinafter "Defendants' Statement") (Doc. 46) at ¶ 18). Michael Hopkins had inherited this home from his grandmother and hoped to be able to reside there. (Larson Statement at ¶ 10). The home needed cleaning before it could be inhabited, however, and Hopkins's friends Facciponte, Larson and McGovern volunteered to assist in the cleanup. (Id. at ¶¶ 10, 12). As the home had been vacant for some time, no electrical service existed, and the young men may have intended to use the generator to provide such power. (Id. at ¶¶ 13-14).*fn1

Andrew Larson brought the generator in a van owned by his father to the home in East Stroudsburg. (Id. at ¶ 15). At some time during the night and early morning of February 8-9, 2008, the four young men were overcome by carbon monoxide fumes in the home. (Id. at ¶ 16). All four died. (Id.). Tests performed by the fire department when they arrived on the scene indicated very high levels of carbon monoxide in the home, especially on the upper floor where the mens' bodies were found. (Id. at ¶ 17; Defendants' Response to the Larsons at ¶ 17). Though police and other public safety officers performed a detailed investigation at the scene, there were no eyewitnesses to the events that led to the young mens' deaths. (Larsons' Statements at ¶ 18).

Fire department officers found the generator in a room on the lower floor of the residence that opened to the exterior of the home. (Id. at 19).*fn2 The generator was behind a closed exterior storm door. (Id. at ¶ 21). Investigators also found a propane tank near this door, leading them to conclude that the tank may have been used to prop open the exterior door. (Id. at 22). The tank may have fallen away, causing the door to close. (Id.). No direct evidence exists to determine how the generator and propane tank ended up where they did. (Id. at ¶ 20). Defendants insist, however, that circumstantial evidence exists by which a reasonable person could conclude that Andrew Larson placed the generator in that room. (Defendants' Statement at ¶ 20). The defendants point to evidence that: Steven Larson, Andrew Larson's father, owned the generator; Steven Larson had taught his son to use the generator; Andrew had used the generator several times while working with his father on carpentry jobs; Andrew had told his mother he needed to use the generator in the days before the incident; Andrew assured his mother that his father would approve of his use of the generator; Andrew apparently brought the generator to the home in East Stroudsburg; none of the other decedents had used a generator before; the Larsons' expert witnesses reported that Andrew, as the only person on the scene with knowledge of how the device worked, likely "had major influence" over where to place the generator. (Id.). The Larsons also insist that no evidence exists to demonstrate that Andrew Larson knew of the dangers of positioning the generator where investigators found it. (Id. at ¶ 26). Pointing to the evidence recited above, defendants insist that Andrew Larson likely played a major role in determining where to place the generator. (Defendants' Response to the Larsons at ¶ 26).

Steven Larson, Andrew's father, had purchased the gas-powered generator from a local hardware store in 2005. (Defendants' Statement at ¶ 3). He used the generator several times at construction sites, and at least twice at his own home. (Id. at ¶ 11). Plaintiffs contend that the generator was sometimes used in a small shed or had a roof over it. (Plaintiffs' Response at ¶ 11). Larson showed his wife Mary-Agnes how to start the generator, though plaintiffs insist that he never told her of any particular danger with running the generator inside. (Defendants' Statement at ¶ 12; Plaintiffs' Response at ¶ 12). Plaintiffs contend that Mary-Agnes Larson ran the generator outside the home because she did not like the noise or filth the machine generated, and not because she appreciated the danger carbon monoxide poisoning the device carried. (Id.). Steven Larson showed his son how to start the generator. (Defendants' Statement at ¶ 13). Plaintiffs contend that Larson never explained the danger of carbon monoxide poisoning presented by the generator, and that he operated the machine eight to ten times around his son, usually in a van with the side doors open or in a garage, with the garage door open. (Plaintiffs' Response at ¶ 13).

A few days before the incident that is the subject of the lawsuit, Andrew Larson asked his mother if his father would mind if he used the generator. (Defendants' Statement at ¶ 16). The parties disagree about the nature of the conversation the two had surrounding Andrew's use of the machine. Defendants contend that Mary-Agnes Larson told her son to use the generator outside, and he responded that he knew he should do so. (Id. at ¶ 17). Plaintiffs insist, however, that this conversation did not amount to an "explicit warning" about the danger of carbon monoxide poisoning, which Mary-Agnes Larson testified she did not understand. (Plaintiffs' Statement at ¶ 17).

The parties also disagree about the extent to which Andrew Larson understood he should not use a generator inside. Defendants argue that Steven Larson testified that he thought Andrew was aware of the dangers of carbon monoxide exhaust. (Defendants' Statement at ¶ 19). Plaintiffs respond that Steven Larson's testimony indicates that Andrew was not aware that running the machine in an enclosed space with a door propped open could be a danger, just that the gas itself could cause injury. (Plaintiffs' Response at ¶ 19). Andrew's father, after all, had used the generator inside closed spaces with the doors propped open. (Id. at ¶ 20).

None of the other decedents had ever used a portable generator.

(Defendant's Statement at ¶ 26). A day or two before the accident, however, Salvatore Facciponte, III, asked his father for a gas can for filling the portable generator. (Id. at ¶ 21). The parties dispute exactly what Salvatore Facciponte, Jr., told his son about using a gasoline-powered generator. Plaintiff Salvatore Facciponte, Jr. admits that he told an investigator during a police interview that he told his son not to run the machine inside. (Salvitore Facciponte Jr.'s Statement of Material Facts (hereinafter "Facciponte Statement") (Doc. 41-2) at ¶ 9). Facciponte contends that this statement came as a part of a discussion about how much noise the machine made while running. (Id. at ¶ 9). Plaintiff also contends that he told his son to shut the machine off if a neighbor complained about the noise it made. (Id.). Defendants argue that evidence indicates that Facciponte told the police investigator he had warned his son that running the generator inside the house could be deadly. (Defendants' Statement in Response to Salavtore Facciponte's Statement of Material Facts (hereinafter "Defendants' Response to Facciponte") (Doc. 59) at ¶ 11).

Michael Hopkins's sister, Plaintiff Margaret Ann Watt, went searching for her brother at the residence in East Stroudsburg on the after of February 9, 2008. (Defendants' Statement at ¶ 28). She discovered the bodies of the four young men in the living room of the home's second floor. (Id.). Watt immediately called the police, and members of the Pennsylvania State Police and the Marshall Creek Fire Department soon arrived to conduct an investigation. (Id. at ¶ 29). All four men were pronounced dead at the scene, and the coroner listed the cause of their deaths as carbon monoxide toxicity. (Id. at ¶ 30). When police and fire personnel arrived at the scene, all of the doors and windows in the home were closed, including the door leading outside from the room where the generator stood. (Id. at ¶ 31). They also found the generator turned on, though out of gas and not running. (Id. at ¶ 32). An extension chord ran from the generator to a power strip on the home's second floor, near where the men's bodies were found. (Id.).

The generator in question had warning labels attached to it. (Id. at ¶ 33). One label, affixed to the engine, read "'WARNING' 'Engines emit carbon monoxide, DO NOT run in enclosed area.'" (Id.). Plaintiffs contend that this label was small, affixed on the engine towards the back of the generator, and was the only label referencing carbon monoxide toxicity. (Plaintiff's Response to Defendants' Statement of Material Facts (hereinafter "Plaintiff's Response") (Doc. 58) at ¶ 33). Another label attached to the generator stated "'READ OWNER'S MANUAL COMPLETELY BEFORE OPERATING GENERATOR.'" (Defendants' Statement at ¶ 33). A third label near the generator's engine urged users to "Read and follow operating instructions before running engine." (Id.). The parties agree that a fourth warning label, which was supposed to be affixed on top of the generator and was to read "Engines emit carbon monoxide, DO NOT run in enclosed area," was not present when investigators recovered the unit. (Id. at ¶ 34). Plaintiffs insist that the generator left the assembly line without this label attached. (Id.).

Plaintiffs filed a complaint for wrongful death and survival actions in this court on August 17, 2009. (Doc. 1). The complaint consists of twelve counts. Count I, against Defendant Briggs & Stratton Corporation, raises a wrongful death of action claim for negligence through failure to warn decedents of the dangers of operating the machine as they did. Count II, likewise brought against Briggs & Stratton, is a survival action for negligence. Count III raises a wrongful death action for strict liability in tort against Briggs & Stratton. Count IV is a survival action for strict liability in Tort against Briggs & Stratton. Count V and VI are wrongful death and survival action breach of warranty claims against Briggs & Stratton. Counts VII through XII raise the same claims against Defendant True Value Company.

On November 30, 2009, the court approved a stipulation between the parties to this case. (Doc. 11). The stipulation severed the claims of Plaintiffs Salvatore and Deborah Facciponte and Steven and Mary-Agnes Larson from the rest of the claims in the action. (Id.). The stipulation also permitted the defendants to join the Faccipontes and Larsons as third-party defendants to this case, and permitted those plaintiffs to file a separate action. (Id.). These plaintiffs then filed that separate complaint in this court on December 16, 2009. (See Doc. 1 in Case No. 09cv2483). The complaint contains the same counts as the complaint in this case, but does not include as plaintiffs the next-of-kin of Michael F. McGovern, Jr. and Michael Hopkins. (See Id.). On February 12, 2010 Defendants True Value and Briggs & Stratton filed a third-party complaint that named as defendants Plaintiffs Salvatore and Deborah Facciponte and Steve and Mary-Agnes Larson. (See Doc. 16 in Case No. 09cv1584). That complaint contains two negligence counts, one against the estate of Salvatore Facciponte III and the other against the estate of Andrew Larson. (Id.).

On March 24, 2010, the court approved a stipulation between the parties to consolidate these cases. (See Doc. 10 in Case No. 09cv2483).

The parties then engaged in discovery. At the close of the discovery process, all of the defendants, including the third-party defendants, filed motions for summary judgment. The parties then briefed the issues, bringing the case to its present posture.

Jurisdiction

Plaintiffs and decedents are citizens of Pennsylvania. Defendant Briggs & Stratton is a Wisconsin Corporation with its principal place of business in that state. Defendant True Value is a Delaware Corporation with its principal place of business in Illinois. The amount in controversy exceeds $75,000. The court therefore has jurisdiction to 28 U.S.C. § 1332. The court is sitting in diversity, and therefore the substantive law of Pennsylvania shall apply. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). Legal Standard Defendants and third-party defendants move for summary judgment on plaintiffs' and counter-plaintiffs' claims. Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

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 non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. 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 v. Catrett, 477 U.S. 317, 322 (1986).

Discussion

Defendants offer several grounds for granting them summary judgment. The court will address each of the ...


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