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Cindy Burger v. Showtime Motor Sports

January 30, 2012

CINDY BURGER, PLAINTIFF,
v.
SHOWTIME MOTOR SPORTS, INC., AND ROBIN RICHARDSON, DEFENDANTS AND THIRD-PARTY PLAINTIFFS,
v.
BREWER TIRE AND AUTOMOTIVE, MUDDY CREEK MOTOR SPORTS, HOLIDAY KAMPER CO., D.B.A. CAMPING WORLD, SHIPP'S RV CENTER, D.B.A. CAMPING WORLD RV SALES, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Judge Conaboy

MEMORANDUM

Here we consider the Motion for Summary Judgment on Behalf of Shipp's RV Center, LLC d/b/a Camping World RV Sales and Holiday Kamper Company of Columbia, LLC d/b/a/ Camping World RV Sales ("Camping World") (Doc. 53). This motion seeks dismissal of all claims against Third-Party Defendant Camping World by Third-Party Plaintiffs (original Defendants) Showtime Motor Sports, Inc., and Robin Richardson ("Third-Party Plaintiffs" or "Defendants") as well as Plaintiff Cindy Burger ("Plaintiff"). (Doc. 53.) For the reasons discussed below, we deny the motion.

II. Background

Plaintiff Cindy Burger filed this diversity action on August 6, 2010, alleging she was injured in an accident on September 22, 2009, on Interstate 81 Southbound in Lackawanna County, Pennsylvania. (Doc. 1 ¶¶ 6, 12.) Defendants Showtime Motor Sports and Robin Richardson owned and operated a 2007 Chevrolet Silverado with a full trailer (Navy Sim II trailer) in tow. (Doc. 1 ¶ 6.) Richardson was an employee of Showtime authorized to operate the vehicle. (Doc. 1 ¶ 5.) Plaintiff was in a construction zone along I-81 when a tire and wheel from Defendants' trailer detached from the trailer, continued to travel off the roadway into the construction zone and struck Plaintiff. (Doc. 1¶ 5.) The impact caused Plaintiff to lose consciousness and resulted in Plaintiff sustainging "severe and permanent injuries." (Doc.

¶ 6.) Plaintiff also alleges that the dangerous condition of the trailer and its parts was known for some time prior to the time of Plaintiff's injuries and Defendants had actual or constructive knowledge of same. (Doc. 1 ¶ 8.)

Defendants filed a two-count Third-Party Complaint against Brewer Tire and Automotive ("Brewer"), Muddy Creek Motor Sports ("Muddy Creek"), and Camping World on August 17, 2010.*fn1 (Doc. 4.)

Third-Party Plaintiffs make the following general allegations: Brewer supplied maintenance and service to the 1990 Proco trailer attached to Defendants' 2007 Chevrolet Silverado (Doc. 4 ¶ 4); Muddy Creek maintained and serviced the 1990 Proco trailer (id. ¶ 5); and Camping World maintained and serviced the 1990 Proco trailer. Count I of the Third-Party Complaint alleges, inter alia, that Brewer was negligent for failing to properly service the trailer, for failing to properly inspect the trailer, for failing to repair the dangerous, defective, and/or deteriorated condition of the trailer, and for allowing the trailer to remain in that condition for an extended period of time.*fn2 (Doc. 4 ¶ 8.) Count II for Common Law Indemnity/Contribution alleges that if Plaintiff was injured as alleged, the injuries were caused solely and primarily by the conduct of all Third-Party Defendants such that Third-Party Defendants would be solely, jointly or severally liable. (Doc. 4 ¶ 10.) Third-Party Defendants add that a "Common Law and/or contractual claim is hereby made against Third-Party Defendants Brewer Tire and Automotive, Muddy Creek Motor Sports and Camping World." (Id.) Defendants seek indemnity on all claims arising from the litigation as well as costs and expenses associated with the litigation. (Doc. 4.)

All Third-Party Defendants filed cross-claims against Defendants Showtime and Richardson and other Third-Party Defendants seeking indemnification and/or contribution. (Doc. 10 at 7-8; Doc. 25 at 6-7; Doc. 28 at 5-6.)

The facts relevant to this motion are set out in Concise Statement of Material Facts Pursuant to Local Rule 56.1 (on Behalf of the Camping World Third Party Defendants) (Doc. 76) and Defendants, Showtime Motor Sports, Inc. and Robin Richardson's Local Rule 56.1 Statement of Material Facts in Response to Defendant, Camping World's Statement of Material Facts in Support of Their Motion for Summary Judgment (Doc. 77).

The parties agree that the subject incident occurred when a tire detached from a trailer being pulled by a truck operated by Defendant Richardson. (Doc. 76 ¶ 7; Doc. 77 ¶ 7.) Specifically, "the axle of the trailer suddenly snapped as Richardson was driving through the construction zone where Plaintiff was working." (Id.) Third-Party Plaintiffs add that this incident occurred two weeks after worked on the trailer. (Doc. 77 ¶ 7.) Camping World replaced all four brakes on the trailer on September 2, 2009, at Defendant Richardson's request. (Doc. 76 ¶ 7; Doc. 77 ¶ 7.) Third-Party Plaintiffs add that Camping World "also replaced brake backing plates, seals were replaced on a brake drum and broken bolts were replaced in the spring shackle. A bolt from the leaf spring was missing which was replaced. There are invoices from Camping World Tire dated September 2, 2009 itemizing those repairs." (Doc. 77 ¶ 8.) Camping World replaced a leaking wheel seal on September 8, 2009. (Doc. 76 ¶ 9; Doc. 77 ¶ 9.) Defendant Richardson did not specifically request Camping World to inspect the trailer axles, but Third-Party Plaintiffs state that Camping World invoices show a line charge for diagnostic time. (Doc. 76 ¶ 11; Doc. 77 ¶ 11.)

Third-Party Plaintiff's expert George H. Meinschein, P.E., reached the following conclusions:

a. The failure of the axle at the time of the accident was caused by the sudden and catastrophic failure of the weld that joined a spindle to the axle tube.

b. The sudden and catastrophic failure of the welded joint between the spindle and the axle tube was a latent manufacturing defect that presented no evidence of inadequate strength until it failed.

c. The defective weld that failed at the time of the accident would not have presented any evidence of impending ...


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