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Jerry Davis v. Lowe's Home Centers

September 1, 2011


The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate JUDGE*fn1


In this products liability action, Plaintiff seeks damages for injuries he sustained when his right hand was pulled into a gas canister vacuum/portable dust collection system manufactured by Joe Due Blades and Equipment Inc. ("Due Blades"). See Doc. 42 ¶ 11. At the time of the accident, Plaintiff was working for a company called Perfect Polish, which had been contracted by Lowe's Home Centers Inc. ("Lowe's") to do work in its Langhorne, Pennsylvania store. Id. Lowe's has filed a motion for summary judgment on the claims asserted by Plaintiff and the cross-claims asserted by Due Blades. See Doc. 52. Plaintiff has filed a stipulation of dismissal of the claims it has asserted against Lowe's, leaving only the cross-claims asserted by Due Blades. Due Blades has not opposed Lowe's motion. After reviewing the motion and exhibits, I conclude that Lowe's is entitled to judgment as a matter of law. Therefore, I will grant Lowe's motion.


The facts are taken from the Second Amended Complaint (Doc. 42), Plaintiff's deposition (attached to Doc. 80 at Exh. A), and the exhibits attached to Lowe's motion (Doc. 52). On January 25, 2009, Plaintiff was working on a crew contracted through Perfect Polish to repair concrete floor joints in the Lowe's store in Langhorne, and injured his hand when he attempted to replace a port cover on the vacuum he was using. See Doc. 42 ¶ 11, Davis Dep. at 9, 18-19. The saw was manufactured by Due Blades and supplied to the crew of workers by Perfect Polish. See Doc. 42 ¶ 11; Davis Dep. at 18, 23.

Lowe's was named as a defendant in the case in the original complaint. See Doc. 1. In his amended complaint, Plaintiff added Due Blades as a defendant, after which Due Blades filed an answer to the complaint and a cross-claim against Lowe's. See Docs. 14, 22. In the cross-claim, Due Blades asserts that, if any of the allegations are found to be true, then Lowe's is liable either solely to Plaintiff, jointly and severally with Due Blades, or over to Due Blades by way of contribution and/or indemnity. See Doc. 22 at 10-11 (Cross-Claim).

On February 25, 2011, Lowe's filed a motion for summary judgment, arguing that it is not the manufacturer or seller of the vacuum, and cannot be held liable for injuries to the employee of an independent contractor. See Doc. 52. As previously mentioned, Due Blades has not responded to the motion, and counsel for Due Blades represented during a telephone conference that it would not be filing any opposition.


Summary judgment may be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 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 might affect the outcome of the case under governing law. Id.

The moving party has the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has met its initial burden, the adverse party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). "Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact." Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000). The evidence presented must be viewed in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983).


A. Products Liability and Breach of Warranty Pennsylvania has adopted the Restatement (Second) of Torts Section 402A, which

imposes liability on any seller of a defective product which is unreasonably dangerous. See Webb v. Zurn, 220 A.2d 853 (Pa. 1966).*fn2 The term "seller" includes "all suppliers of a defective product in the chain of distribution, whether retailers, partmakers, assemblers, owners, sellers, lessors or any other relevant category." Malloy v. Doty Conveyor, 820 F.Supp. 217, 220 (E.D.Pa. 1993) (quoting Burch v. Sears, Roebuck & Co., 467 A.2d 615, 621 (Pa. Super. 1983)); see also Rotshteyn v. Klos Constr., Inc., No. 02-6591, 2004 WL 1125939, at *2 (E.D. Pa. May 20, 2004) (strict liability covers manufacturers, sellers and distributers, but does not extend to installers). Lowe's argues that it cannot be held liable because it did not "manufacturer, design, sell or distribute the product or any parts of the product." Doc. 52 at 8. The evidence supports this argument and there is nothing to refute it.

According to the Plaintiff, his employer at the time, Perfect Polish, supplied the vacuum to the workers. See Davis Dep. at 18, 23. In fact, Plaintiff testified that, although the workers purchased utility knives and gloves from Lowe's, Lowe's did not supply any of the equipment or materials used by the work crew. Id. at 23-24. The contract between Lowe's and Perfect Polish also states that Perfect Polish will supply all equipment and tools necessary for the job. See Doc. 52-5 ¶ 4. David Sorrentino, the manager of the Langhorne Lowe's, confirmed at his deposition that Perfect Polish brought the vacuum, and that Lowe's does not have any vacuums of that sort on site. See Doc. 52-6 at 9-10. Because the unrefuted evidence establishes that Lowe's is not a manufacturer, supplier, or seller of the vacuum at issue, it is not subject to strict products liability under Pennsylvania law.

Similarly, any claim arising from a breach of warranty must fail. The laws of breach of warranty, whether express or implied, apply only to sellers. See Rotshteyn, 2004 WL 1125939, at *3 n.3 (breach of warranty claim ...

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