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Capece v. Hess Maschinenfabrik Gmbh & Co. Kg

United States District Court, M.D. Pennsylvania

March 20, 2015



ROBERT D. MARIANI, District Judge.


On May 8, 2012, Plaintiff Capece brought this action in the Luzerne County Court of Common Pleas alleging state-law claims for negligence (Count I), strict product liability (Count II), and breach of warranty (Count III) against Defendant, Hess Maschinefabrik GmbH & Co. KG (hereinafter "Defendant Hess"), for an injury that occurred when a concrete I block machine manufactured by Defendant ejected a steel plate onto Capece's ankle. (Compl., Doc. 1-2). Defendant subsequently filed a notice of removal pursuant to 28 U.S.C. § 1446 on August 8, 2012. (Doc. 1).

On March 12, 2014, Defendant moved for summary judgment. (Doc. 29). On December 29, 2014, upon consideration of Defendant's Motion for Leave of Court to File Supplemental Briefing in support of Defendant's pending motion for summary judgment (Doc. 43) and the Pennsylvania Supreme Court's November 19, 2014 decision in Tincher v. Omega Flex, Inc ., the parties were granted leave to file supplemental briefs (Doc. 44). The issues have now been fully briefed and Defendant's motion is ripe for decision.

For the reasons set forth below, the motion will be granted in part and denied in part.


The following statement of undisputed facts is drawn from Defendant's Statement Of Material Facts submitted pursuant to Local Rule 56.1 (Doc. 32) and Plaintiffs Answer thereto (Doc. 39).

Defendant Hess is a German corporation that designs and manufactures concrete machines. (Doc. 1-2, ¶¶ 2, 4).

In 2006, Techo-Block purchased an RH-Multimat-2000-2A concrete block machine from Hess (hereinafter "Hess Machine"). (Doc. 32, ¶ 9). Installation of the Hess Machine was completed on August 15, 2007. ( Id. at ¶ 9). Techo-Block is in the business of manufacturing concrete paving stones and other masonry products. ( Id. at ¶ 5). Techo-Block contracted with Defendant Hess to design, manufacture, and install concrete producing machinery in Plant 1, of Techo-Block's Pen Argyl, Pennsylvania facility, and, in 2006, purchased the concrete block machine in Plant 2. ( Id. at ¶¶ 7, 9). The machine is located in a walled-off enclosure (the "Hess Room") within Plant 2 of the Pen Argyl facility. ( Id. at ¶ 26). The Hess Machine forms concrete products by depositing wet concrete into molds and the molded concrete items are formed on and transported through the machine on steel "boards" or "plates" in the "wet-side" of the Plant. (Doc. 32, ¶¶ 10, 11).

Capece began employment with Techo-Bloc on May 3, 2010. ( Id. at ¶ 4). He was injured on May 25, 2010 when David Hicks, the Hess Machine operator at the control panel, manually discharged a plate onto the conveyor while the Hess Machine was in manual mode. (Doc. 32, ¶ 1; Doc. 1-2, ¶ 10); (Doc. 32, ¶¶ 29, 30). In manual mode, the operator must physically maneuver a joystick to send a plate onto the conveyer. (Doc. 32, ¶ 32). The plate transport will not happen automatically in manual mode. ( Id. at ¶ 33). There is a pedestrian catwalk or bridge located outside of the Hess Room. ( Id. at ¶ 36). The plaintiff was injured when crossing the conveyer belt when a steel plate exited the machine and fractured his left ankle. ( Id. at ¶ 54; Doc. 39, ¶ 54). Capece alleges his intent in attempting to cross the conveyor was to service the "hopperll on the other side of the conveyer. (Doc. 32, ¶ 36).

After Plaintiff entered through the safety gate and before the accident, he believes that the safety gate was closed behind him by an unknown and unidentified person. ( Id. at ¶ 59). He believes that from where he was injured he was approximately three feet from the safety gate and he did not observe anyone else standing in close proximity to the safety gate shortly before the accident. ( Id. at ¶¶ 60, 61).


Through summary adjudication, the court may dispose of those claims that do not present a"genuine issue as to any material fact." FED. R. CIV. P. 56(a). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). "As to materiality, ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986),

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248, Rather, the opposing party must point to a factual dispute requiring trial and the district court "may limit its review to the documents submitted for the purposes of summary judgment and those parts of the record specifically referenced therein, " Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030-1031 (9th Cir. 2001); see also Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). "Inferences should be drawn in the light most favorable to ...

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