Johnson v. Manitowoc Boom Trucks, Inc.

406 F.Supp.2d 852

Shirley JOHNSON, as Legal Guardian of Michael Gilfeather, an incapacitated adult, Plaintiff and Oak River Insurance Company, Intervening Plaintiff v. MANITOWOC BOOM TRUCKS, INC. and National Equipment Services, Inc.,¹ Defendants.

No. 2-02-0080.

United States District Court, M.D. Tennessee, Northeastern Division.

December 13, 2005.

COPYRIGHT MATERIAL OMITTED

Benjamin E. Baker, Jr., R. Graham Esdale, Jr., Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, AL, Richard H. Sforzini, Jr., Blackburn & McCune, P.C., Nashville, TN, for Plaintiff.

Hal W. Wilkins, Leitner, Williams, Dooley, and Napolitan, Nashville, TN, for Intervening Plaintiff.

Noel F. Stahl, G. Brian Jackson, Miller & Martin, LLP, Nashville, TN, Patrick W. Schmidt, Quarles & Brady, Milwaukee, WI, for Defendants.

MEMORANDUM

GRIFFIN, United States Magistrate Judge.

Pursuant to the provisions of 28 U.S.C. § 636 and Rule 73(b) of the Federal Rules of Civil Procedure, the parties in this action have consented to have the Magistrate Judge conduct any and all further proceedings in the action and the action has been referred to the Magistrate Judge for all further proceedings, including entry of final judgment. See Order entered January 3, 2005 (Docket Entry No. 64).

Pending before the Court is the Motion to Exclude Testimony of Gary Friend and for Summary Judgment filed by the defendant, Manitowoc Boom Trucks, Inc. (Docket Entry No. 86), to which the plaintiff, Shirley Johnson, filed a response (Docket Entry No. 107), and the defendant has replied (Docket Entry No. 123). The Court heard oral argument on this motion, as well as the Defendant's Motion to Strike (Docket Entry No. 125) and the plaintiff's Motion for Partial Summary Judgment (Docket Entry No. 96) on October 25, 2005. For the reasons discussed herein, the defendant's motion for Summary Judgment is GRANTED.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In October 2001, Michael Gilfeather was working as an employee of American Shotcrete near Cookeville, Tennessee.² The employees of American Shotcrete were using a boom truck crane manufactured by Manitowoc. A boom truck crane is a crane mounted on a truck which can be transported to work sites. The Manitowoc crane was designed to be operated with two front "outriggers" and two rear "stabilizers" extended and touching the ground.³ The outriggers and stabilizers stabilize the truck when the crane boom is moved or extended and prevent the crane from turning over.

On October 15, 2001, Michael Gilfeather was working for American Shotcrete at the Cookeville construction site, along with other American Shotcrete employees, including Delayne Williams and his father, Bruce Williams. Mr. Gilfeather was American Shotcrete's Safety Director on the site. Delayne Williams operated the Manitowoc crane that day. Delayne Williams has his Commercial Driver's License and is an experienced heavy equipment operator, but he had never operated a boom truck crane before working at that job site on that day, and never read the owner's manual or the safety manual for the Manitowoc crane. However, he knew that the crane could tip over if it were moved without all four outriggers extended.

On the date in question, Delayne Williams finished using the Manitowoc crane and attempted to move a Chevrolet Suburban past the boom truck crane so he could leave the job site. At the suggestion of Mr. Gilfeather, Delayne Williams retracted the front, passenger-side outrigger on the Manitowoc crane so that he could drive his vehicle past the boom truck crane.⁴ While Delayne Williams was moving the truck, Bruce Williams attempted to use the boom truck crane to move some heavy materials. With the outrigger still partially retracted, Bruce Williams began to move the boom on the crane, and the boom truck crane fell over, injuring Mr. Gilfeather.

Mr. Gilfeather, through Shirley Johnson as legal guardian, brought the present case against Manitowoc, alleging the crane was defective and/or unreasonably dangerous, both because of an unsafe design and an inadequate warning. The plaintiff has presented one expert witness, Gary Friend, a mechanical engineer. Mr. Friend is a self-employed mechanical engineer whose consulting practice consists exclusively of working on lawsuits or potential lawsuits.

Mr. Friend's proposed expert opinion is that the Manitowoc crane should have an "outrigger — boom interlock system" ("interlock system") that operates by preventing operation of the crane unless the outriggers are firmly extended on terrain. Mr. Friend opines that an interlock system could be incorporated into the crane's existing electrical and hydraulic system, based primarily on a similar system on a 1978 Asplundh boom truck. As illustration of his alternative design, Mr. Friend created a schematic drawing consisting of juxtaposed schematics of the hydraulic and electrical systems of the Manitowoc truck and the Asplundh truck, purporting to show how the Asplundh interlock system could be linked up to the existing Manitowoc systems. (Exhibit 12, Docket Entry No. 92-18) Mr. Friend further testified that if an interlock system had been installed, properly maintained, working properly and not overridden, the misuse that caused this accident might not have occurred.

LEGAL STANDARD

1. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). To prevail, the moving party must meet the burden of proving the absence of a genuine issue of material fact as to an essential element of the opposing party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir.2001).

In determining whether the moving party has met its burden, the Court must view the factual evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). "The court's function is not to weigh the evidence and determine the truth of the matters asserted, `but to determine whether there is a genuine issue for trial.'" Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

If the nonmoving party fails to make a sufficient showing on an essential element of the case with respect to which she has the burden, however, the moving party is entitled to summary judgment as a matter of law. See Williams v. Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir.1999). To preclude summary judgment, the nonmoving party "must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial." Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir.2002). "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Shah v. Racetrac Petroleum Co., 338 F.3d 557, 566 (6th Cir.2003) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). If the evidence offered by the nonmoving party is "merely colorable," or "not significantly probative," or not enough to lead a fair-minded jury to find for the nonmoving party, the motion for summary judgment should be granted. Anderson, 477 U.S. at 249-52, 106 S.Ct. 2505. "A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Hill v. White, 190 F.3d 427, 430 (6th Cir.1999) (citing Anderson, 477 U.S. at 247-49, 106 S.Ct. 2505). With this standard in mind, the Court turns to an analysis of the claims presented in this case.

2. Tennessee Products Liability Law

Tennessee products liability law governs this diversity case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In Tennessee:

[a] manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.

Tenn.Code Ann. § 29-28-105(a). A plaintiff must show that a product is either defective or unreasonably dangerous for liability to be imposed under § 29-28-105(a). See Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 235 (6th Cir.1988). In this context, there are two tests for determining whether a product is "unreasonably dangerous." A product is unreasonably dangerous if it is more dangerous than would be contemplated by an ordinary consumer (the "consumer expectation test"), or if the product is so dangerous it would not be put on the market by a reasonably prudent manufacturer (the "prudent manufacturer test"). Tenn.Code Ann. § 29-28-102(8). See Coffey v. Dowley Mfg. Inc., 187 F.Supp.2d 958, 968 (M.D.Tenn.2002), aff'd 89 Fed.Appx. 927 (6th Cir.2003) (describing the two tests under Tennessee law). Under Tennessee law, the two tests are distinct, have different elements, require different forms of proof, and are neither mutually exclusive nor mutually inclusive. Ray v. BIC Corp., 925 S.W.2d 527, 531 (Tenn.1996).

The prudent manufacturer test is the appropriate standard in this litigation.⁵ The prudent manufacturer test requires the evaluation of a number of factors, drawn from the writings of Deans Wade, Prosser and Keeton, including: the safety aspects of the product, the likelihood or probable seriousness of...