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Salvatore Facciponte, Jr., Individually and As v. Briggs & Stratton Corporation; and True Value Company

October 17, 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, DECEASED; 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 Munley

MEMORANDUM

Before the court are two motions. The first is defendants' motion in limine to bar evidence of Defendant True Value Company's failure to inspect or test the generator. (Doc. 80). The second is defendants' motion for reconsideration of their motion to exclude certain opinions of Dr. David G. Penny. (Doc. 118). Having been fully briefed, these matters are ripe for disposition.

Background

This cases arises from the death of four young men, Salvatore Facciponte III, Andrew Larson, Michael McGovern, Jr. and Michael Hopkins, on February 9, 2008. The young men died after using a gasoline-powered portable generator to provide electricity in a home. Defendant Briggs & Stratton Corporation manufactured the generator at issue and Defendant True Value Company (hereinafter "True Value") distributed it. Plaintiffs allege that failings in the design of the generator and defendants' failure to warn them about dangers from the generator caused the men's deaths. These design failings allegedly caused the young men to be unaware of the dangers of running the generator in an enclosed space.

After the court denied defendants' motion for summary judgment, the parties filed motions in limine in anticipation of the pre-trial conference. The court ruled on all of the parties' motions in limine with the exception of defendants' motion to exclude evidence of True Value's failure to inspect. At the pre-trial conference, the court heard brief arguments on defendants' motion in limine to exclude evidence of True Value's failure to inspect. The court also agreed, at the pre-trial conference, to entertain briefing on a motion for reconsideration of defendants' motion in limine with respect to certain opinions of Dr. David G. Penny. 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 diversity jurisdiction pursuant 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)).

Discussion

A. Motion to Exclude Evidence of True Value Company's Failure to Inspect the Subject Generator (Doc. 80)

Defendants seek to exclude evidence of True Value's failure to inspect the generator in question before selling that generator to Steven Larson. Defendants argue that plaintiffs should be prevented from "mentioning, relying on, or offering evidence regarding True Value's alleged failure to inspect or test the generator."*fn1

(Doc. 81, Defs.' Mem. of Law in Supp. of Mot. In Limine at 6). Defendants contend that under Pennsylvania law True Value, as the distributor, had no duty to inspect or test the product and therefore cannot be liable under a negligence theory for failing to do so. As such, defendants insist the evidence is minimally relevant and highly prejudicial.

Plaintiffs respond that True Value was aware of the generator's potential dangers and, therefore, should be imposed with the duty to inspect the generator before selling it. Plaintiffs also argue that True Value contractually assumed the duty to inspect every generator it sells.

At issue here is whether True Value has a duty to inspect the generator in question, and, if not, whether our rules allow evidence of a distributor's failure to inspect in the absence of such a duty. We hold that product distributors, such as True Value, have no such duty to inspect and that the rules of evidence forbid such evidence from being admitted to establish a distributor's negligence.

Pennsylvania law is clear, no duty to inspect for latent or hidden defects is imposed on product distributors. See, e.g., Kratz v. Am. Stores Co., 59 A.2d 138, 139-40 (Pa. 1948) (holding that a stove polish retailer has no duty in negligence to inspect each cannister to ensure that the formula is safe); Johnston v. Dick, 165 A.2d 634, 644-45 (Pa. 1960) (holding that a kerosene vendor had no duty to inspect the kerosene prior to delivery to ensure that no gasoline had become mixed); McMeekin v. Gimbel Bros., Inc., 223 F. Supp. 896, 899 (W.D. Pa. 1963) (holding that a retailer has no duty to test or inspect each packaged rotary mower it offered for sale); RESTATEMENT (SECOND) OF TORTS § 402 (1965) ("A seller of a chattel

manufactured by a third person, who neither knows nor has reason to know that it is, or is likely to be, dangerous, is not liable in an action for negligence for harm caused by the dangerous character or condition of the chattel because of his failure to discover the danger by inspection or test of the chattel before selling it.").

The court rejects plaintiffs' argument that power generators are per se dangerous and that True Value has a duty to inspect every one prior to distribution. Although the tragedy of this accident cannot be overstated, we find that gasoline-powered portable power generators do not fall into the exception for known dangerous products found in section 402 of the Restatement (Second) of Torts. Similar to the Pennsylvania Supreme Court's finding in Johnston v. Dick with respect to kerosene fuel, the court finds that a gasoline-powered portable power generator may be dangerous or perfectly safe, depending on its use. Use specific danger is, in itself, not enough to support a finding that a product is per se dangerous. The court also rejects plaintiffs' argument that the law with respect to a distributor's duty to inspect has somehow changed. Plaintiffs point to no law to support this theory. If anything, recent developments in non-manufacturer products liability have focused on theories of strict products liability and not those of negligence.

Furthermore, plaintiffs also argue in their brief that True Value assumed the duty to inspect its products by executing the TruServ MSC Program Agreement-2004 (Doc. 100, Ex. C) (hereinafter "Program Agreement"); however, a plain reading of the Program Agreement does not reveal this to be the case. The Program Agreement does not require True Value to inspect the products. Rather, the Program Agreement gives True Value the option to inspect the products to determine whether or not that individual product should be returned to the manufacturer.*fn2 This contract is unremarkable. It merely provides True Value with a right of refusal. No third-party beneficiaries are mentioned, and the language of the agreement does not reflect an intent to assume a duty owed to public that is not imposed by law.

For the above stated reasons, the court finds that True Value had no duty to inspect the generator. The danger complained of is an inadequate/missing warning on a product that the manufacturer shipped in a sealed container. If a product danger is found to have existed, it is the type of hidden defect that a distributor has no duty to inspect for under Pennsylvania law. True Value cannot be negligent for failing to inspect the generator where it had no duty to do so.

Therefore, evidence of True Value's failure to inspect is irrelevant because plaintiff proffered that evidence to establish negligence, and, as stated above, TrueValue's failure to inspect is not a fact that is of consequence to the determination of the action. FED. R. EVID. 401. Irrelevant evidence is not admissible. FED. R. EVID. 402. Thus, the court will ...


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