Opinion
No. 01-CV-73166
March 24, 2003
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
This products liability case, removed from state court on the basis of diversity of citizenship, stems from the ironworker plaintiff's injury suffered while attempting to destress a steel tendon located within concrete. Plaintiff's complaint alleges that defendant, supplier of the building materials and destressing equipment, breached its duty to him in failing to 1) inspect its products for defects; 2) provide safe tension cables and deadhead anchors; 3) properly instruct as to the products' use; 4) provide adequate and proper equipment for the job; 5) provide proper de-tensioning nosepiece and jack base for destressing; 6) warn plaintiff of danger of destressing without proper equipment; and 7) train the plaintiff in proper procedures for use of DSI's destressing equipment. The matter is now before the court on defendant's motion for summary judgment. Because the court agrees that defendant did not breach any duties it owed plaintiff, summary judgment will enter for defendant as to all of the plaintiff's claims.
Count II, made on behalf of plaintiff's spouse, is derivative of the claims made by plaintiff in count I, so summary judgment will enter as to count II as well.
BACKGROUND
At the time of the accident from which this case stems, plaintiff was an employee of Whaley Steel, a subcontractor to Baker Concrete Construction on a project to construct a Marriott Hotel in Pontiac, Michigan. Plaintiff worked on the reinforcement of the eleven story concrete structure, and used post-tensioning material and equipment provided by defendant Dywidag Systems, Inc. ("DSI") to Baker Concrete under a material supply and/or equipment lease agreement executed by DSI and Baker Concrete.
As defendant describes plaintiff's job, reinforcement of the concrete requires insertion of steel tendons into the concrete and subsequent "stressing" or "tensioning" of the tendons to the correct tension. "After the initial tensioning, "destressing" of the tendons is occasionally required to reduce the tension of particular tendons.
Plaintiff testified in deposition that in his experience, destressing in concrete construction jobs was rare. He testified that he had de-stressed concrete tendons one time prior to his accident, one month earlier on the same job site on the sixth floor. According to his deposition testimony, plaintiff was shown how to perform de-stressing by the job foreman, Alan Longsdorf. Plaintiff's accident occurred on the eleventh floor of the building, while he was working with Larry Kelly, who had never before destressed concrete. Plaintiff stated in his deposition that he showed Larry Kelly how to set up the destressing equipment, pulled the cable out a bit, and Larry Kelly took out one of the wedges that held the (formerly) stressed cable. Kelly then told plaintiff he could not move one of the other wedges away from the cable; when plaintiff attempted to move that wedge, the accident occurred. Plaintiff's head was impacted, necessitating open reduction, internal fixation, and implantation of three metal plates in plaintiff's skull. He also suffered a depressed fracture of the left lamina, depressed fracture of the left nasal bone, and a displaced fracture of the base of the fifth metacarpal of the right hand. He alleges severe left traumatic enaphtalmos and diplagia, severe and chronic pain and suffering, mental anguish, loss of social pleasure, embarrassment and humiliation and loss of earnings and earnings capacity.
In its motion for summary judgment, defendant asserts that Whaley Steel, plaintiff's employer at the time of the accident, has admitted that it was Whaley's responsibility to warn its employees of the dangers associated with the de-stressing of concrete, which it did satisfactorily. Defendant points to the deposition of Richard Whaley of Whaley Steel, in which he testified that it was Whaley Steel's responsibility to request training from DSI for its employees who had not been trained in de-stressing concrete. Whaley's practice was not to request technical assistance from the material provider (here, DSI) if it already had an employee on the project site who was trained in de-stressing concrete. Whaley testified further that DSI provided written instructions with its equipment, which were posted on a wall in Whaley Steel's office at the construction site. These instructions included the following warnings:
Before beginning detensioning operation, always consult Dywidag for further information. Do not stand directly in front, over or behind the jack during detensioning. Stand as far away from jack and stool as possible.
1. On rare occasions tendons may have to be detensioned. This is accomplished by using a de-tensioning stool.
2. The de-tensioning stool must be well made and sit firmly on the concrete in such a way that it will not cause a local failure. Use only a Dywidag furnished stool or an approved equal when this stool is used, alignment is critical! The strand must be on top of the "U" on the stool and jack. (Extreme caution should be exercised.) Be aware of the potential for jack knifing.
3. Do not use on honeycombed concrete.
4. Do not use on irregular surface.
5. If there is any doubt, call Dywidag for assistance. * * *
13. Don't de-tension with a "rig" made up of loose plates or spacing shims.
14. Don't stand directly behind or in front of the jack during tensioning and de-tensioning.
15. Don't let other tradesmen in the immediate area (in front or behind) of jack during stressing operations.
16. Don't hammer or beat on the jack cylinder. Don't misuse the equipment.
17. Don't stand on the slab over the jack or under the slab in line with stressing during tensioning or de-tensioning. The safest place is alongside the jack, a few feet away. Do not allow personnel to become entangled in the hydraulic hoses during stressing or destressing operations.
18. Don't do anything if you are not sure. . ., "ask."
Defendant emphasizes testimony given by plaintiff's expert, Darrell Parks, who owns a competitor of defendant DSI. Defendant asserts that Parks did not criticize the instructions provided by DSI, and agreed it was the employer's responsibility to train its employees on proper procedure for de-stressing. Defendant further asserts that Parks' testimony shows that the destressing decision relevant to this lawsuit was made after a tendon failed, and that the adjacent tendons would have to be destressed in order to remove the failed tendon for repair or replacement. Parks' testimony indicated that a tendon could fail for numerous reasons, such as a defective deadhead anchor. Parks stated that DSI did not use the same destressing equipment used by Parks' company, and could not state what brands of equipment were used throughout the industry. Parks could not testify that the equipment used by DSI was defective. Defendant asserts that plaintiff has no evidence that the DSI equipment was defective, and cannot show that DSI failed to provide adequate instruction or warnings about its equipment, and that therefore summary judgment should be entered in favor of DSI.
In summary, plaintiff responds that there is sufficient evidence to create a genuine issue of material fact about whether defendant breached its duty to plaintiff. Plaintiff asserts that "in order to safely destress tendons, a special destressing nosepiece is required. Defendant, DSI, failed to supply the destressing nosepiece nor did they mention it in the instructions provided with the equipment. Defendant further supplied a defective tendon and deadhead anchor which failed when it was stressed."
Plaintiff quotes from the deposition testimony of Darrell Parks concerning the nosepiece supplied by DSI:
Q: Do you have any criticism of that nosepiece? A: Based on the equipment they supplied, it was the wrong nosepiece to be used. Q: What's your basis for saying that? A: The specific nosepiece is detailed and designed for the stressing operation only.
Plaintiff includes xeroxed photographs of the equipment supplied by DSI, and a photo from the "Reinforcing-Post Tensioning Manual," to show the difference between the nosepiece supplied by DSI and that allegedly recommended for destressing, which has a flat (as opposed to curved, as supplied by DSI) face. Further, plaintiff cites to testimony given by DSI's technical advisor, Al Hauter, concerning his call to DSI to get a "flat nose" on site, because that was his "preferred" equipment. Apparently, Hauter made a report to DSI in which he stated there was a flat nose which "bears against the stool better." Finally, plaintiff points to Parks' discussion, in deposition, of a different system which would have done away with the need for a destressing stool. Plaintiff asserts that defendant foresaw the need to destress tendons, as DSI supplied a destressing stool with the equipment, but failed to supply the destressing nosepiece. Plaintiff states that jackknifing and injury are foreseeable when the proper equipment is not provided.
STANDARD
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FDIC v. Alexander, 78 F.3d 1103, 1106 (6th Cir. 1996). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Kutrom Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir. 1992).
The standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Winningham v. North Am. Resources Corp., 42 F.3d 981, 984 (6th Cir. 1994) (citing Booker v. Brown and Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989)). The evidence and all inferences drawn therefrom must be construed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Enertech Elec. Inc. v. Mahoning Co. Comm'r., 85 F.3d 257, 259 (6th Cir. 1996); Wilson v. Stroh Co., Inc., 952 F.2d 942, 945 (6th Cir. 1992). If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l. Bank Cities Serv. Co., 391 U.S. 253, 270 (1968); see also Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995). The non-moving party cannot rest upon its pleadings to avoid summary judgment, but must support its claims with probative evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986); Kraft v. United States, 991 F.2d 292, 296 (6th Cir 1993).
ANALYSIS
Defective Cables/Deadhead Anchors, Failure to Inspect
Concerning the first two claims made in plaintiffs' count I (¶ 10 a b and repeated in ¶¶ 12 a b), failure to inspect products for defects and failure to provide safe cables and deadhead anchors, Defendant cites to Lagalo v. Allied Corp., 218 Mich. App. 490, 495-96 (1996) for the proposition that a plaintiff in a products liability case, proceeding under either negligence or breach of warranty, "must prove a defect attributable to the manufacturer and a causal connection between that defect and the injury of which he complains" (quoting Caldwell v. Fox, 394 Mich. 401, 410 (1975)). Defendant also makes the plain statement that the plaintiff must show something was wrong with the product to make it dangerous. Id. at 496, quoting Prentis v. Yale Mfg. Co., 421 Mich. 670, 683 (1984).
Plaintiff's complaint alleges only defendant's failure to "inspect the tools and materials to discover any defects" and "[t]o provide safe tension cables and deadhead anchors," without specifying a cause of action. Although defendant addresses negligence and breach of warranty together, citing the 1996 Michigan Court of Appeals Lagalo decision, the court notes that the Supreme Court's reversal of the 1996 Lagalo decision held that a negligence cause of action is based on a theory distinct from that of an implied warranty. Lagalo v. Allied Corp., 457 Mich. 278, 287 n. 11 (1998).
The Prentis case states the general rule that a negligence action focuses on the manufacturer's conduct and an implied warranty action is focused on the product's condition, Prentis, 421 Mich. at 692, and points out that in a design case only a negligence cause of action is cognizable. Id. at 694. See Sundberg v. Keller Ladder, 2001 WL 1397290. In any event, the court agrees that plaintiff's claim that defendant did not provide safe cables and anchors and/or failed to inspect such materials for defects will not survive summary judgment if the plaintiff does not demonstrate the existence of a material question of fact that a defect in the product caused plaintiff's injury. See Hollister v. Dayton Hudson Corporation, 201 F.3d 731, 736-37 (6th Cir. 2000).
Defendant asserts that plaintiff has produced no evidence of a defect in the tendon or deadhead anchor that failed, necessitating destressing and causing plaintiff's accident, and points out that plaintiff's expert Darrell Parks agreed that cables and anchors could fail even without a manufacturing defect. For instance, Parks agreed that defective concrete around the area of the anchor, or a kinked cable, could cause such a failure. (See Parks deposition, pp. 19-20) Therefore, defendant contends, plaintiff has not created a genuine issue of material fact sufficient to defeat defendant's motion for summary judgment.
Plaintiff's response maintains that DSI provided a defective tendon and dead head anchor which failed and necessitated the destressing of the remaining tendons. Alan Longsdorf, the ironworker foreman for Whaley Steel, stated that the tendon failure was caused by wedges that "weren't set in the dead head." He testified again at deposition that the cable failed because the "wedges were missing out of the ring — well, I don't know if they were missing or they just weren't seat (sic) all the way out, but the cable pulled out of the dead head that's buried in concrete." The dead head/wedge combination comes pre-manufactured by DSI. As plaintiff points out, the anchor and tendons are missing, presumed destroyed, and have not been available for inspection.
In its reply, defendant points out that Alan Longsdorf also agreed in deposition that there were a variety of ways a tendon or deadhead could fail, giving rise to an accident such as that suffered by the plaintiff. Longsdorf could not rule out that the accident occurred because the tendon simply snapped, which he acknowledged can be the result of kinking or slipped because of dirt becoming embedded around the cable, or because of damage to the deadhead from use of the crane. The court agrees that plaintiff's proffer of Mr. Longsdorf's speculative testimony, without any supporting evidence of a defect attributable to defendant, is not probative evidence establishing the existence of a genuine issue for trial concerning defendant's alleged failure to provide and inspect safe tension cables and deadhead anchors. Summary judgment will enter for defendant as to these claims.
Adequate instruction/warning/training
As for these claims (contained in ¶¶ 10c, f, and g of plaintiff's complaint and repeated in ¶¶ 12 c, f, and g), defendant contends that plaintiff has not produced any evidence that DSI failed to provide adequate/proper instructions or warnings regarding the use of DSI's equipment and that DSI was under no obligation to train plaintiff in the proper procedures for destressing cables with its equipment. Defendant cites to its warnings that were posted in the Whaley Steel office, and asserts that the danger of "jackknifing" was made clear by DSI. Defendant further points out that plaintiff's expert, Darrell Parks, does not provide any kind of information about destressing with his own equipment, and that plaintiff's employer's own manager testified that it was Whaley Steel's responsibility to warn its employees about the dangers of destressing concrete. Defendant cites to the case of Antcliff v. State Employees Credit Union, 95 Mich. App. 224 (1980) for its finding that there was no duty to instruct or train users in the proper use of a product independent of the duty to warn users of the dangers of improper use. Id. at 235.
The court notes that the Michigan Supreme Court's holding inAntcliff, at 414 Mich. 624, while affirming the decision below, declined to construe a manufacturer's obligation as being solely that to warn. "A manufacturer's liability to a purchaser or a user of its product should be assessed with reference to whether its conduct, including the dissemination of information about the product, was reasonable under the circumstances." Antcliff, 414 Mich. at 630.
Plaintiff asserts in response only that defendant's instructions failed to mention a destressing nosepiece, that a technical advisor from defendant DSI came to the work site after the accident and ordered a "flat nosed detensioning nose piece" for detensioning of the remaining cables, and that defendant has "conceded" that a variety of destressing techniques are employed in the industry, suggesting that this fact means defendant was required to provide proper instructions.
It is the court's determination that plaintiff has not offered any evidence or authority to allow it to survive summary judgment as to this claim. Although it did not give specific instructions, defendant provided ample warnings in connection with the use of its equipment for detensioning. As in the Antcliff case, these products were provided to professional users. Plaintiff's mere assertions about defendant's warnings do not establish the existence of a genuine issue of material fact about their insufficiency. Furthermore, plaintiff has offered no authority in support of its assertion that defendant was required to provide instructions about the proper use of its equipment under these circumstances, and the court agrees that the precedent of Antcliff is on point here. See also Guaranteed Construction Company v. Gold Bond Products, 153 Mich. App. 385, 399. Summary judgment will enter for the defendant on plaintiff's instructions/warning claims.
In fact, just as in the Antcliff case, evidence in this matter shows that the training in the technique was learned on the job, "knowledge passing from the more experienced worker to the less experienced worker. . . ." Antcliff, 414 Mich. at 32-33.
Adequate/proper equipment/failure to provide proper equipment/failure to inspect
This section of defendant's motion addresses the claims contained in ¶¶ 10 d and e and repeated in ¶¶ 12 d and e of plaintiff's complaint, alleging defendant's unreasonable failure to provide adequate and proper equipment for the job and a proper de-tensioning nosepiece and jack base for de-stressing. In its motion, DSI concedes that a product can be rendered unreasonably dangerous if a safety device is omitted. Such a case requires, DSI contends, a showing of the magnitude of foreseeable risks and a showing of alternative safety devices, and whether such devices would have been effective to reasonably minimize the foreseeable risk of danger. Bazinau v. Mackinac Island Carriage Tours, 233 Mich App. 743, 757 (1999), quoting Reeves v. Cincinnati, Inc., 176 Mich App. 181 (1989).
DSI, however, contends that it was not under any obligation to provide the special destressing nosepiece plaintiff asserts should have been provided, because DSI was under no obligation to anticipate that its hydraulic ram would be used for destressing. DSI again cites toAntcliff, pointing out that in that case the plaintiff argued that a scaffold suppher had a duty to provide metal outriggers with a certain scaffold. The Antcliff court determined that the manufacturer was not obligated to furnish "accessories," as it could not anticipate what every buyer of its product would need, or provide every accessory available to every buyer. Antcliff, 95 Mich. App. at 234-35. Defendant further contends that even if it were under an obligation to anticipate the need for destressing, and provide safe and adequate destressing equipment for the project, plaintiff has offered no evidence of a breach of that duty on the part of defendant. Defendant asserts it provided equipment to use in the event of a need for destressing, that plaintiff himself had successfully used that equipment for destressing earlier in the project, and that plaintiff's only evidence concerning the madequacy of that equipment is his expert's preference for a destressing nosepiece such as that used by his company (Parks deposition, p. 52, lines 18-23).
plaintiff quotes testimony of DSI's technical advisor Al Hauter concerning his preference for a flat nosepiece to perform detensioning, no portion of his deposition transcript is included in the record.
In response to this argument, plaintiff asserts that the destressing stool is an integral part of the destressing system, and that one cannot safely destress without a destressing stool-therefore, plaintiff apparently contends that the destressing nosepiece, which it contends was not provided by DSI, was an integral part of the system as well. Plaintiff cites only to George v. Eaton Corporation, 114 Mich. App. 580 (1981) in its brief, apparently to support its argument concerning integral parts of systems and the negligence in a manufacturer's failure to provide such parts.
The court agrees with defendant that plaintiff has not demonstrated the existence of a material question of fact concerning an alleged duty on the part of the defendant to provide a nose piece other than that provided, such as that used by plaintiff's expert, Darrell Parks. Plaintiff's reliance on the George case, in which the Court of Appeals of Michigan reversed a decision of the Wayne County Circuit Court for its error in giving an instruction on comparative negligence in a case in which the defendant's liability arose from the failure to provide an adequate safety device in the workplace, does not lend support to plaintiff's argument.
Although the contract entered into between DSI and Baker Concrete specifically called for a "destressing stool," and DSI was presumably aware of the possibility of destressing on the project, the court is convinced that its provision of only one nosepiece does not give rise to liability on the part of defendant for plaintiff's unfortunate accident. The court will enter summary judgment for defendant as to these claims as well.
CONCLUSION
For the above-stated reasons, defendant's motion for summary judgment is hereby GRANTED in its entirety, as to all claims contained in plaintiff's complaint.
IT IS SO ORDERED.