Mavity v. Mtd Prod.s Inc.

714 F.Supp.2d 577

Rodney F. MAVITY, Plaintiff,

v.MTD PRODUCTS, INC., Defendant.

Case No. 1:09 CV 00027.

United States District Court,W.D. Virginia, Abingdon Division.

June 1, 2010.

COPYRIGHT MATERIAL OMITTED.

Charles H. Smith, III, and William Wirt Brock, IV, Gentry Locke Rakes & Moore, LLP, Roanoke, VA, for Plaintiff.

Christopher A. Corpus, Wegman, Hessler & Vanderburg, Cleveland, OH, and James W. Jennings, Jr., Woods Rogers PLC, Roanoke, VA, for Defendant.

OPINION AND ORDER

JAMES P. JONES, Chief Judge.

In this products liability personal injury case, I will deny the defendant's Motion for Summary Judgment and resolve certain pretrial issues.

I

The plaintiff, Rodney F. Mavity, was seriously injured when the Cub Cadet RZT 50 riding lawn mower that he was operating overturned and landed upside-down on top of him. The mower was manufactured by the defendant MTD Products, Inc. (“MTD”) and Mavity seeks an award of damages for his injuries based on alleged negligent design of the mower, a failed duty to warn of the mower's dangerous conditions, and breach of the implied warranties of merchantability and fitness. The case is founded on the court's diversity jurisdiction. 28 U.S.C.A. § 1332(a) (West 2006).

The defendant MTD has moved for summary judgment in its favor on the grounds that (1) there is insufficient evidence that the mower was defective; (2) Mavity substantially modified the mower after the sale and unforeseeably misused it; (3) any hazard or risk in the use of the mower was open and obvious; (4) there was no failure to warn that made the mower unreasonably dangerous; (5) any implied warranty was limited in duration and has expired; and (6) Virginia law precludes a claim based on “crashworthiness.”

The parties have also filed motions in limine as to certain evidentiary issues. All of the motions have been briefed and argued and are ripe for decision. I will consider them seriatim.

II

Summary judgment is appropriate when there is “no genuine issue of material fact,” given the parties' burdens of proof at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Fed.R.Civ.P. 56(c). In determining whether the moving party has shown that there is no genuine issue of material fact, a court must assess the factual evidence and all inferences to be drawn therefrom in the light most favorable to the non-moving party. See Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985), overruled on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

Because the relevant events in this case occurred in Virginia, the substantive law of Virginia applies. In order to recover in a Virginia products liability case, a plaintiff must prove that the product in question contained a defect that rendered it unreasonably dangerous for ordinary or foreseeable use. Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir.1993). In making that determination, the “court will consider safety standards promulgated by the government or the relevant industry, as well as the reasonable expectations of consumers.” Id. When the defect complained of is one of design, liability “is imposed only when an unreasonable danger is created [and][w]hether or not this has occurred should be determined by general negligence principles, which involve a balancing of the likelihood of harm, and the gravity of harm if it happens against the burden of the precautions which would be effective to avoid the harm.” Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1071 (4th Cir.1974) (internal quotation marks and citation omitted).

A manufacturer breaches its duty to warn if it has reason to know that a product is dangerous for the use for which it is supplied, has no reason to believe the user will realize the dangerous condition, and fails to exercise reasonable care to inform users of the dangerous condition. Jones v. Ford Motor Co., 263 Va. 237, 559 S.E.2d 592, 600 (2002).

The accident in this case happened on October 26, 2007, when plaintiff Mavity, a 59-year-old, college-educated retiree, was mowing his lawn with the riding mower he had purchased new approximately two years earlier. Mavity's lawn slopes down to a public road, with a low drainage depression boarding the road. He had mowed down the slope to the road, traveled parallel to the road, backed up across the drainage depression and had started up the slope when the front of the mower suddenly came up. The mower then tipped over backwards, pinning Mavity beneath it. Mavity had mowed the lawn in the same way many times before and does not himself know why the accident happened. The operator's manual for the mower, which Mavity had obtained prior to the accident, warned operators not to operate on a slope greater than 15 degrees. The record is unclear as to the degree of the slope where the accident happened, although there is evidence that it was at or less than 15 degrees. ¹

The plaintiff has obtained the opinions of two experts as to liability, whose technical qualifications the defendant does not question. The first expert, E. Smith Reed, is a licensed professional engineer and former design engineer for another mower manufacturer. He opines that the mower in question was capable of unexpectedly overturning when operated on slopes within the range permitted by the operator's manual, when the operator weighed as much as Mavity-265 pounds. Reed contends that because of these characteristics, the mower should have been designed with control lever dampers, preventing a rapid acceleration of the mower leading to the raising of the front wheels and upending of the mower. According to Reed, such control lever dampers are commonly included for safety reasons in the design of similar mowers by other manufacturers.

In addition, Reed opines that the manufacturer should have warned users not to mow on slopes of less than 15 degrees, and of the effect of the weight of the operator on the safety of operation on slopes.

Based on these opinions and the other facts of record, I find that whether the product had a defective design that contributed to cause Mavity's injuries and whether MTD failed to warn of this dangerous condition are jury issues. The experts' opinions here are sufficient to show an unreasonably dangerous condition in the mower leading to the accident and the plaintiff's injuries. See Freeman v. Case Corp., 118 F.3d 1011, 1015-17 (4th Cir.1997) (upholding jury verdict for plaintiff in lawn mower accident case based on expert's testimony after his review of published material, including industry literature, his inspection and test of the product and his extensive experience in the field).

The defendant contends that Mavity misused the product by modifying it after he purchased it. Mavity did install a switch that allowed the machine to mow in reverse, as well as replacing the seat with one that he found more comfortable. In addition, he changed the discharge deflector by securing it in the up position. However, the plaintiff's expert Reed has opined that none of these changes had any effect on the cause of the accident. Accordingly, at best, any misuse of the product is a jury question.

Solely as to the claim of breach of warranty, ² the defendant contends that it is barred by a limitation in the warranty provided by MTD. The written Manufacturer's Limited Warranty provided, in relevant part, that

“Cub Cadet” warrants this product against defects in material and workmanship for a period of two (2) years commencing on the date of original purchase and will, at its option, repair or replace, free of charge, any part found to be defective in materials or workmanship.

....

No implied warranty, including any implied warranty of merchantability of [sic] fitness for a particular purpose, applies after the applicable period of express written warranty above as to the parts identified.

(Br. Supp. Def.'s Mot. Summ. J., Ex. G.) MTD argues that “this two-year durational period expired before Plaintiff filed the Complaint.” (Br. Supp. Def.'s Mot. Summ. J. 28.)

Even assuming that the limitation described above is enforceable, it is clearly not a reduction of the statute of limitations applicable to the plaintiff's cause of action for personal injury, which under Virginia law is two years from the date of the accident, regardless of the theory of recovery. Va.Code Ann. § 8.01-243(A) (Supp.2009); see Tyler v. R.R. Street & Co., 322 F.Supp. 541, 543 (E.D.Va.1971).

The plaintiff's expert Reed and its other expert, Thomas A. Berry, also a professional engineer, both have opined that the mower in question was defective because it did not have a so-called rollover protective system (“ROPS”), such as a roll bar. According to Berry, such protective devices have been provided on similar lawn mowers for many years and can be added at a minimal cost to the manufacturer. MTD argues that Virginia law does not permit recovery in a products liability suit for lack of “crashworthiness.” ³

“A crashworthy vehicle is defined as one which, in the event of a collision, resulting accidentally or negligently from the act of another and not from any defect or malfunction in the vehicle itself, protects against unreasonable risk of injury to the occupants.” Slone v. Gen. Motors Corp., 249 Va. 520, 457 S.E.2d 51, 54 n. (Va. 1995) (internal quotation marks omitted). While a cause of action based on this doctrine has been recognized in almost all U.S. jurisdictions, it has been expressly rejected by the Virginia Supreme Court. Id. at 54; see Shifflett v. Gen. Electric Co., No. 5:06CV00127, 2007 WL 3243796, at *3 (W.D.Va. Nov. 1, 2007).

While I must, of course, accept Virginia law as announced by the Virginia Supreme Court, its definition of a crashworthy cause of action does not encompass the present case, where the plaintiff claims that the accident itself was caused by a design defect in the mower. If, as...