United States District Court, W.D. Pennsylvania
BRANDI L. MCKENZIE, Plaintiff,
DEMATIC CORP., et al., Defendants.
MEMORANDUM OPINION AND ORDER OF COURT
KIM R. GIBSON JUDGE
This matter comes before the Court upon consideration of Defendants’ motion for summary judgment. (ECF No. 54). The issues have been fully briefed, and the Court held oral argument on February 17, 2015. The motion is now ripe for disposition. For the reasons that follow, the Court will deny Defendants’ motion for summary judgment.
II. Jurisdiction and venue
The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75, 000. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial portion of the events giving rise to the claims occurred in this judicial district.
This case was originally filed in the Court of Common Pleas of Somerset County. Defendants removed the case to this Court pursuant to 28 U.S.C. §§1332 and 1441 because complete diversity of citizenship exists between Plaintiff and Defendants and the amount in controversy exceeds $75, 000. (ECF No. 1 at 3–4).
The Plaintiff, Ms. Brandi Lynn McKenzie, was employed as a split-case picker by CVS Caremark at the CVS distribution facility in Somerset, Pennsylvania. (ECF No. 56 at ¶ 1). Plaintiff had initially worked as a split-case picker at the CVS facility from July 2006 until July 2009 during college summer recess. (ECF No. 56 at ¶2; ECF No. 58 at ¶ 2). Plaintiff then returned to work at the CVS facility in 2010. (ECF No. 56 at ¶ 2).
As a split-case picker, Plaintiff was tasked with collecting merchandise from shelves and placing it into plastic bins called “totes, ” which are sent to individual CVS stores. (Id. at ¶ 3). Split-case pickers are given instructions through headsets regarding the types and quantities of merchandise to be placed in each tote. (Id.). Split-case pickers also perform other work, including but not limited to cleaning and general housekeeping in their work areas and on the conveyors. (ECF No. 58 at ¶ 3). Each split-case picker is assigned to a line, which is comprised of shelves containing the merchandise on one side, and a series of conveyors on the other side. (ECF No. 56 at ¶ 4). They use a conveyor with non-powered rollers to hold the totes on which they are working and to roll the totes along the line. (Id.). The middle conveyor is powered and is used to move completed (filled) totes to the loading dock at the end of the line. (Id.). Another group of split-case pickers works at a non-powered conveyor on the other side of the middle conveyor. (Id.). Both groups share the middle powered roller conveyor. (Id.). In addition to these conveyors, there is a powered belt conveyor that hangs above the powered roller conveyor that is used to transport finished totes to the loading dock. (Id. at ¶ 5). This conveyor is used to transport empty merchandise containers and other trash to a baler. (Id. at ¶ 6). Split-case pickers put trash onto the conveyor. (ECF No. 58 at ¶ 7). The facility in this case has been used as a distribution facility by every owner of the facility from the time the trash conveyor was installed in 1969 until the present. (ECF No. 56 at ¶ 9).
When Plaintiff began working at the CVS facility in 2006, she watched a video concerning lock-out/tag-out procedures. (ECF No. 56 at ¶ 20). Plaintiff watched the same video again in 2010 when she resumed employment at the CVS distribution facility. (Id. at ¶ 21). In conjunction with the training, Plaintiff signed a document regarding safety procedures dated May 18, 2010, acknowledging that she “fully underst[ood] and … had [the] opportunity to ask questions about the information provided” in the document.” (Id. at ¶ 22).
On July 6, 2010, Plaintiff was walking up the aisle next to the non-powered roller conveyor when she noticed a piece of plastic, which, according to Plaintiff, was loosely flapping as the roller, to which it was stuck by a sticker, spun around. (ECF No. 58 at ¶ 26). The plastic was thin and clear, similar to cellophane. (ECF No. 56 at ¶ 27). Plaintiff attempted to remove the piece of plastic. (ECF No. 56 at ¶ 30). She did not slip or get bumped by another person when she reached toward the plastic. (ECF No. 56 at ¶ 40).
Plaintiff’s right arm was severely and permanently injured when her hand and arm were pulled into the unguarded nip-point on the motorized belt trash conveyor. (ECF No. 58 at ¶ 47). According to Plaintiff, her fingertips inadvertently came into contact with the unguarded nip-point on the trash conveyor and the rubber on the Plaintiff’s gloves became stuck to the metal roller. (Id. at ¶ 81). Her hand and arm were then slowly sucked into the conveyor. (Id. at ¶ 82). Plaintiff testified that she started screaming for someone to help her and was forced to climb up on the bottom roller conveyor as she was being sucked into the trash conveyor. (Id. at ¶ 83). She further testified that while this was happening, other employees frantically searched for an emergency shut-off switch. (Id. at ¶ 84). She stated that she suffered excruciating pain as the top of her arm was being badly burnt from the friction of the running conveyor belt and as her arm was slowly being bent as it was pulled into the conveyor. (Id. at ¶ 85). She also testified that she repeatedly screamed that her arm was going to break. (Id. at ¶ 86). Eventually the trash conveyor violently snapped the bones in her forearm. (Id.).
IV. Legal Standard
a. Summary judgment
Summary judgment is appropriate when “there is no genuine issue as to any material fact. . . and the moving party is entitled to judgment as a matter of law.” Melrose, Inc. v. Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a). Issues of fact are genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that will affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. The Court’s role is “not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). “In making this determination, ‘a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.’” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).
The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party opposing summary judgment “may not rest upon the mere allegations or denials” of the pleading but “must set forth specific facts showing that there is a genuine issue for trial.” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 n.11 (1986)).
“For an issue to be genuine, the nonmovant needs to supply more than a scintilla of evidence in support of its position-there must be sufficient evidence (not mere allegations) for a reasonable jury to find for the nonmovant.” Coolspring Stone Supply v. Am. States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993).
a. The Second Restatement
Defendants filed the instant motion for summary judgment while the Pennsylvania Supreme Court had yet to decide whether or not to adopt the principles of the Restatement (Third) of Torts: Products Liability §§ 1 et seq. The Pennsylvania Supreme Court subsequently declined to adopt the Restatement (Third) of Torts. Tincher v. Omega Flex, Inc., 104 A.3d 328, 399 (Pa. 2014). Thus, the principles of the Second Restatement of Torts govern this case.
Defendants initially argued in their summary judgment brief that Plaintiff’s negligence claim could not act as a stand-alone claim under the Third Restatement, but rather was subsumed within her claims for design defect (Count I) and Failure to Warn (Count II). (ECF No. 55 at 7). Defendants now concede that under Tincher negligence remains a viable stand-alone claim in a product liability case. (ECF No. 64 at 9, citing Tincher, 104 A.3d at 340).
Defendants assert that Plaintiff’s claims fail for reasons of causation, and that principles of causation remain unchanged by the ruling in Tincher. (ECF No. 64 at 8). For the reasons below, the Court finds that Plaintiff has raised genuine disputes of material fact that must be resolved by the factfinder at trial.
b. Count I – Strict Liability Design Defect
Plaintiff’s first claim asserts that her accident and injuries were caused by an unguarded nip point on the trash conveyor designed, manufactured and installed by the Defendants. (ECF No. 1-2 at 7). Defendants have raised assumption of risk and unforeseeable product misuse as ...