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Michael Giehl and Janet Giehl, Husband and Wife v. Terex Utilities and Terex Teletect

April 9, 2012

MICHAEL GIEHL AND JANET GIEHL, HUSBAND AND WIFE, PLAINTIFFS,
v.
TEREX UTILITIES AND TEREX TELETECT, INC., DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court is the Motion to Dismiss Plaintiffs' Complaint (Doc. 3) filed by Defendants Terex Utilities, Inc. and Terex South Dakota, Inc. (collectively "Terex"). Plaintiffs, Michael and Janet Giehl, commenced this action asserting claims of negligence, strict products liability, and breach of warranty against Terex to recover damages for personal injuries sustained by Michael Giehl. (Doc. 1, Ex. B.) Terex moves to dismiss all of Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants' motion to dismiss will be granted in part and denied in part. Because Plaintiffs adequately allege claims for negligence and strict products liability, Defendants' motion will be denied as to these claims. However, because Plaintiffs' breach of warranty cause of action is barred by the statute of limitations, the breach of warranty claim will be dismissed.

I. Background

The relevant facts as set forth in Plaintiffs' Complaint (Doc. 1, Ex. B "Complaint") are as follows:

Defendants are part of the Terex Corporation, which makes and designs a variety of construction utility products. (Complaint, ¶ 3.) One such product designed by Defendants was a 2009 XT60 model aerial device that was designed to be mounted on truck chassis for use as a boom truck. (Complaint, ¶ 3.) On or about February 6, 2003, Defendants delivered to Four Seasons Tree Service ("Four Seasons") an International 2002 Model 4300 truck chassis with a truck-mounted 2009 XT60 aerial device (hereinafter "the Boom Truck") that had been designed, manufactured, and/or assembled by Terex. (Complaint, ¶ 3.)

Plaintiff Michael Giehl ("Mr. Giehl") was an experienced tree trimmer employed by Four Seasons. (Complaint, ¶¶ 5, 16.) On July 2, 2009, Mr. Giehl was working for Four Seasons in South Canaan, Pennsylvania, where John Brussell ("Mr. Brussell") was using the Boom Truck to trim tree limbs away from high tension power lines. (Complaint, ¶ 6.) A number of Four Seasons trucks were lined up on the narrow roadway where the Boom Truck was located. (Complaint, ¶ 6.) Thus, in the event of a boom failure, an employee would need to clamber from the bucket to a nearby tree, and, with the assistance of a co-worker, climb to safety. (Complaint, ¶ 7.)

On July 2, 2009, Mr. Brussell was in the bucket above power lines trimming branches when the plates and welds holding the boom arm unexpectedly failed, causing the bucket to sag or tip downwards towards the high tension wires. (Complaint, ¶ 9.) The boom attachment failed because the gusset plates were grossly undersized and the welds attached to the gusset plates at the pivot point were defective, causing the boom to collapse under its own weight. (Complaint, ¶ 12.) As a result of the boom failure, Mr. Brussell became trapped, stranded helplessly above the high tension power wires. (Complaint, ¶ 13.)

Because no other bucket trucks could be immediately employed to rescue Mr. Brussell, Mr. Giehl donned his climbing gear and began climbing a wet tree adjacent to Mr. Brussell. (Complaint, ¶¶ 14-15.) As Mr. Giehl ascended the tree to deliver a climbing line and harness to Mr. Brussell, Mr. Giehl's strap slipped and he fell from the tree. (Complaint, ¶ 15.) The fall caused Mr. Giehl to fracture his ribs and his right wrist. (Complaint, ¶ 15.) As a result of the fall, Mr. Giehl suffered permanent injuries, and his wife, Janet, has been deprived of the society and company of her husband. (Complaint, ¶¶ 18-19.)

Plaintiffs subsequently initiated the present action in the Court of Common Pleas of Wayne County, Pennsylvania, by filing a Writ of Summons on June 29, 2011. (Doc. 1, Ex. A.) Plaintiffs filed the Complaint on December 16, 2011 asserting claims against Defendants for negligence, strict liability, and breach of warranty. (Doc. 1, Ex. B.)

Defendants timely removed the action to this Court on January 12, 2012. (Doc. 1.) Next, on January 19, 2012, Defendants filed a motion to dismiss all of Plaintiffs' claims pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 5.) Defendants' motion has been fully briefed and is now ripe for disposition.

II. Discussion

A. Legal Standard for a 12(b)(6) Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir.2000).

"A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the ... claim is and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167

L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555. However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). Instead, a complaint must "show" this entitlement by alleging sufficient facts. Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).

As such, the inquiry at the motion to dismiss stage is "normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011).

Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Twombly, 550 U.S. at 570, meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1949.

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir.1998), or credit a complaint's "'bald assertions'" or "'legal conclusions.'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429--30 (3d Cir.1997)).

Additionally, while courts do not typically dismiss claims as time barred on a motion to dismiss, "a court may . . . dismiss a claim under 12(b)(6) where the bar is 'apparent on the face of the complaint.'" Metso Paper USA, Inc. v. Bostik, Inc., No. 3:08--CV--772, 2011 WL 2670320, at *3 (M.D.Pa. July 8, 2011) (quoting Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir.2002)). Thus, "the determination of whether a plaintiff's claim is barred by the statute of limitations involves issues of fact and therefore, the statute of limitations is normally addressed at the summary judgment stage or at trial." Kiser v. A.W. Chesterton Co., 770 F.Supp.2d 745, 747 (E.D.Pa.2011).

As Defendants seek dismissal of all of Plaintiffs' claim, the Court will examine Plaintiffs' claims for negligence, strict liability, and breach of warranty.

B. Plaintiffs' Negligence Claim

Plaintiffs' First Cause of Action asserts that Defendants negligently manufactured, designed, assembled, and/or marketed the Boom Truck which caused Mr. Giehl's injuries. (Complaint, ¶¶ 20-28.) Plaintiffs allege that it was "foreseeable to both Defendants that a bystander (a co-employee) would attempt to rescue another worker." (Complaint, ¶ 21.) Plaintiffs assert that Defendants knew that the Boom Truck would be used for tree trimming services near power lines, and that if a user of the Boom Truck became stranded, a co-employee in the immediate vicinity would be called upon to attempt a rescue. (Complaint, ¶ 22.) Given the nature of the Boom Truck's intended use, Plaintiffs claim Defendants "should have foreseen that users stranded in the bucket would have to be rescued from great heights and considerable danger of death and/or electrocution." (Complaint, ¶ 23.) Thus, Plaintiffs assert that the Boom Truck as designed, manufactured, and assembled with defective gusset plates and welds caused Mr. Giehl's injuries. (Complaint, ¶¶ 25-28.)

Defendants, however, argue that Plaintiffs' negligence claim fails because "Plaintiffs have not pled the required duty or causation elements of a viable negligence claim." (Doc. 3, 3.) According to Defendants, the duty requirement of a negligence claim requires a relationship between the parties. (Doc. 3, 5.) And, as "Mr. Giehl did not purchase the [Boom Truck], and he was not using the [Boom Truck] at the time of the accident .. . [and] the [Boom Truck] never even came into contact with Mr. Giehl," Defendants contend that Plaintiffs failed to adequately state the duty element of a negligence claim. (Doc. 13, 4.) Additionally, Defendants argue that Plaintiffs fail to allege the essential proximate cause element of a negligence claim "because Mr. Giehl's actions break the chain of causation." (Doc. 3, 6.)

To state a claim for negligence under Pennsylvania law, a plaintiff must allege the following elements:

(1) A duty or obligation recognized by the law, requiring the actor to conform to a ...


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