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Gonzalez v. Thomas Built Buses, Inc.

United States District Court, M.D. Pennsylvania

March 21, 2013


Page 748

For Michelle Gonzalez, Jason Gonzalez, Plaintiffs: Edwin A. Abrahamsen, Jr., Thomas S. Lane, LEAD ATTORNEYS, Webster Szanyi LLP, Buffalo, NY; Walter F. Casper, Jr., LEAD ATTORNEY, Carbondale, PA.

For Thomas Built Buses, Inc., Defendant: Kevin A. Szanyi, Thomas S. Lane, LEAD ATTORNEYS, Webster Szanyl LLP, Buffalo, NY; Walter F. Casper, Jr., LEAD ATTORNEY, Carbondale, PA.


Page 749

JAMES M. MUNLEY, United States District Judge.


Before the court for disposition is the motion for summary judgment filed by Defendant Thomas Built Buses, Inc. in this strict product liability case. The parties have briefed their respective positions, and the motion is ripe for disposition.


Plaintiff Michelle Gonzalez (hereinafter " plaintiff" ) [1] was involved in an incident on or about November 27, 2007 that led to the instant lawsuit. During the time relevant to this case, Pocono Mountain School District employed plaintiff as a school bus driver. (Doc. 59, Def.'s Stmt. of Mat. Facts ¶ 2). On the day of the incident, plaintiff was operating a 2008 Saf-T-Liner C-2 Model school bus assembled and distributed by Defendant Thomas Built Buses, Inc. (Id. ¶ 6).

Plaintiff avers that, on the day in question, the engine of the bus lost power and shut down as she drove the bus in Mount Pocono, Pennsylvania on Route 423 approaching the intersection with Route 196. (Id. ¶ ¶ 28-29). She alleges that when the bus lost power the brake system and steering wheel also stopped working. (Id. ¶ 30). Plaintiff restarted the engine and the steering resumed functioning. (Id. ¶ 31). As she approached the intersection, she applied the brakes, but they would not stop the bus. (Id. ¶ 32). She turned onto Route 196 and approximately ten (10) seconds later, the engine again lost power and shut off. (Id. ¶ 34). According to the plaintiff, the brakes locked up and the steering wheel shut down. She had to pull the steering wheel very hard, and the bus eventually came to a stop approximately 400 feet farther along the road. (Id. ¶ ¶ 35, 42). As she pulled on the steering wheel, plaintiff heard a popping sound in her neck. (Id. ¶ 37). Plaintiff alleges that she suffered left shoulder injury and neck injuries from pulling on the unresponsive steering wheel. [2] (Doc. 63, Pl.'s Br. at 13 n.3).

Based upon the incident, plaintiff filed a complaint that includes the following

Page 750

causes of action: [3] Count I, Negligence and Gross Negligence; Count III, Strict Liability (Design Defect, Manufacturing Defect and Insufficient Instructions/Warnings); Count V, Fraud, Concealment and Misrepresentation; and Count VII, Loss of Consortium on behalf of Jason Gonzalez. (Doc. 1, Compl.). Defendant Thomas Built Buses now moves for summary judgment on Counts I, III, V and VII.

Plaintiff does not challenge two portions of defendant's request for summary judgment. She does not challenge summary judgment with regard to Count V -- fraud, concealment and misrepresentation; and the " failure to warn" portion of Count III -- Strict Liability. Summary judgment will be granted to the defendant on these portions of plaintiff's complaint. We will now discuss the remaining portions of the complaint.


This Court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. The plaintiffs are citizens of Long Pond, Pennsylvania and the defendant is a North Carolina corporation with a principal place of business in High Point, North Carolina. (Doc. 1, Compl. ¶ ¶ 2,4). Because we are sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).

Standard of review

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) (quoting 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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. Int'l Raw Materials, Ltd. v. Stauffer Chem. 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

Page 751


Defendant raises both procedural issues and substantive issues. We will address each separately.

I. Procedural issues

Defendant first raises several procedural issues with regard to the evidence we properly may consider in ruling on its summary judgment motion. These issues can be broken into the following areas: 1) compliance with basic procedural rules; 2) proper support for plaintiff's counter-statement of facts and 3) plaintiff's expert report. We will address these issues in seriatim before ruling upon the substance of defendant's motion.

A. Procedural Rules

Defendant claims that the papers plaintiff filed in opposition to the motion for summary judgment are facially improper and plainly inadequate to defeat summary judgment. Defendant alleges plaintiff failed to comply with basic procedural rules rendering the motion for summary judgment unopposed. Defendant filed a statement of material facts with its motion for summary judgment. (Doc. 59). Plaintiff filed a response to the statement, (Doc. 62), but defendant contends that the response is inadequate. After a careful review, we disagree with the defendant.

Both Rule 56(c)(1)(A) of the Fed.R.Civ.P. and L.R. 56.1 require plaintiff to identify facts and references to the record that dispute defendant's statement of facts. In the instant case, for the most part, plaintiff explicitly admits the facts that defendant has presented. However, plaintiff does deny several of defendant's facts. Defendant complains specifically regarding ten (10) responses. Those ten are the responses to defendant's statement of facts ¶ ¶ 15, 19, 26, 43, 45, 47-50. Plaintiff denies these alleged facts. (See Doc. 62, Pl.'s Ans. to Def.'s Stmt. of Mat. Facts). The reason for plaintiff's denial is presented by the plaintiff in its response. Generally, plaintiff asserts that several of these alleged facts are not supported by the record cited by the defendant; or that they are merely the conclusion of defendant's expert witness. (Id.) For purposes of this motion, we find these answers to be sufficient.

The case that defendant cites in support of its position is distinguishable. See Reed v. Harpster, No. 3:09cv1618, 2012 WL 2871797 (M.D. Pa. July 12, 2012). In Reed, the pro se plaintiff, who was a state court prisoner, misnumbered his responses to the defendants' numbered paragraphs and failed to cite to, or submit, evidence to support the statements of his disagreement with defendants' properly supported statement of fact. [WL] at *1, n1. The court thus deemed the defendants statement of facts as admitted. Id. Unlike in Reed, plaintiff has presented a paragraph by paragraph response to plaintiff's statement of material fact. Plaintiff has properly numbered her paragraphs, and denies statements for which defendant ...

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