SMITH v. PEDDINGHAUS CORPORATION

G. TIDWELL, District Judge

The above-styled matter is presently before the court on defendant C I Steel LLC's motion for summary judgment [docket no. 84].

On March 15, 2006, plaintiff filed this products liability action in the Superior Court of DeKalb County, Georgia against Peddinghaus Corporation, Cape Island Steel, Inc. and Steel, Inc. f/k/a Fabsouth, LLC. Specifically, plaintiff alleges the following claims: (1) Strict Liability and negligence for defective design against Peddinghaus (Counts One and Two); (2) Failure to Warn against Peddinghaus, Cape Island Steel, and Steel, Inc. (Counts Three, Four, and Six); (3) Improper installation and/or modification against Steel, Inc. (Count Five); (4) Negligent maintenance against Steel, Inc. and Cape Island Steel (Count Seven); and (5) Punitive Damages against all defendants (Count Eight).

At the time of plaintiff's injury, he was working as an employee for Steel, Inc. f/k/a FabSouth, LLC. (Steel, LLC is the correct name for the misidentified Steel, Inc. Hereinafter, the court will refer to this defendant as "Steel"). On April 24, 2006, defendant Steel filed a "Motion to Dismiss, Motion for Judgment on the Pleading and/or Motion for Summary Judgment" in the Superior Court of DeKalb County asserting that plaintiff's suit against Steel is precluded by the Workers' Compensation Act. On April 25, 2006, defendant Peddinghaus removed the action to this court pursuant to 28 U.S.C. §§ 1332, 1441. Defendant C I Steel, LLC (incorrectly named in the complaint as Cape Island Steel, Inc.) consented to the removal.

On July 10, 2006, the parties filed a "Consent Motion to Dismiss Steel, LLC as Defendant and Allow Participation as Intervenor." On July 26, 2006, this court issued an order granting the parties' consent motion and dismissing as moot Steel's motion to dismiss, motion for judgment on the pleadings and/or motion for summary judgment.

On April 12, 2007, defendant C I Steel filed a motion for summary judgment. On June 19, 2007, this court issued an order granting as unopposed plaintiff's motion to file exhibits out of time. Defendant C I Steel's motion for summary judgment is now ripe for consideration.

Courts should grant summary judgment when "there is no genuine issue as to any material fact . . . and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must "always bear the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). That burden is `discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325; see also U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991).

Once the movant has met this burden, the opposing party must then present evidence establishing that there is a genuine issue of material fact. Celotex, 477 U.S. at 325. The nonmoving party must go beyond the pleadings and submit evidence such as affidavits, depositions and admissions that are sufficient to demonstrate that if allowed to proceed to trial, a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). If he does so, there is a genuine issue of fact that requires a trial. In making a determination of whether there is a material issue of fact, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255; Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). However, an issue is not genuine if it is unsupported by evidence or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case. Id. at 248. Thus, to create a genuine issue of material fact for trial, the party opposing the summary judgment must come forward with specific evidence of every element essential to his case with respect to which (1) he has the burden of proof, and (2) the summary judgment movant has made a plausible showing of the absence of evidence of the necessary element. Celotex, 477 U.S. at 323.

In light of the foregoing standard, the court finds the following facts for the purpose of resolving this motion for summary judgment only. Defendant Peddinghaus is a corporation in the business of manufacturing large industrial machines in both the United States and Europe. The Peddinghaus Fabripunch F-1170 ("Fabripunch") at issue is an industrial machine manufactured by defendant Peddinghaus.

The Fabripunch fabricates metal plates and other material by punching holes into them. The metal plates that are fabricated are then used for various types of building structures. The Fabripunch machine is designed with a triple punch attachment allowing for various-sized punches and dies to be used depending on the dimension of the holes to be punched.

On November 4, 1994, the Fabripunch machine at issue in this case was sold and shipped to C I Steel at its plant in Hyannis, Massachusetts. When the machine arrived at C I Steel's plant, the machine was brand new and had never been used. On November 16, 1994, less than two weeks after taking possession of the Fabripunch machine, defendant C I Steel began having problems with the machine.

Around June 2003, C I Steel transferred the Fabripunch machine to Steel for use at its plant in Scottdale, Georgia. Plaintiff contends that the machine was purchased by Steel in September 2003. The Bill of Sale is dated April 30, 2004 and provides that the machine was being sold to Steel LLC "AS IS AND WHERE IS, in [its] existing state and physical condition and location with all faults."

The plaintiff has been employed by Steel since 1999. Steel is in the business of fabricating metals. Steel has numerous fabricating machines at its plant in Scottdale, Georgia.

From the time the machine was installed in Steel's facility until the day of the accident on June 1, 2004, plaintiff was the primary operator of the Fabripunch machine. On June 1, 2004, the day of the accident, Smith was operating the machine and was working his normal 6:00 a.m. to 5:00 p.m. shift. After lunch, his supervisor interrupted him and asked that he punch a single piece of material. Because the punches and dies required for that job were different from the ones that were presently on the machine, Smith had to change them. Plaintiff used the new punches and dies to punch the material requested by his supervisor and then proceeded to change the punches and dies back to the ones he previously had been using.

Before entering the machine to change the punches and dies back to the ones he previously was using, plaintiff pressed a red stop button on the machine that is supposed to disable the machine completely. Plaintiff's first attempt at switching the dies failed because the dies would not align with the hole in the die block. Plaintiff was using his left hand to straighten the die when the "stripper clamp" unexpectedly came down, trapped his thumb and would not go back up.

The "stripper clamp" is the part of the machine that surrounds the punches. It is controlled by hydraulics. One of the purposes of the stripper clamp is to keep the metal material in place after the punch goes through the material and dies (located beneath the material) and returns to the upright position. The primary purpose of the stripper clamp, however, is to ensure that the holes being punched in the metal material are being punched accurately, which the electronics of the machine determine, based on where the stripper clamp is and where the previous holes were punched.

Steel investigated plaintiff's incident and determined that the stripper clamp malfunctioned because of an electrical short with one of the relays going to the stripper clamp. According to Peddinghaus, the designer and manufacturer of the Fabripunch machine, there is no way for an operator to know that such a relay switch is going bad, is about to fail, or is not working properly. Plaintiff contends that the emergency button which plaintiff pressed was supposed to cut all power sources from the machine and set the machine at a zero energy state.

On January 8, 2002, prior to transferring the Fabripunch to Steel, C I Steel experienced a malfunction of the stripper clamps in which the stripper clamp occasionally failed to retract while the machine was in operation. In January 2002, at the suggestion of a service technician employed by Peddinghaus, C I Steel's employees replaced a module on the Fabripunch machine. After the C I Steel employees replaced the module as suggested by the Peddinghaus technician in January 2002, C I Steel never again experienced any problems with a lack of retraction of the stripper clamp nor did it experience any other problem with the stripper clamp from that time until the time the Fabripunch machine was transferred to Steel's facility in Scottdale, Georgia.

Some time before the subject incident in June 2004 and after C I Steel had relinquished control and possession of the subject machine, the plaintiff and Steel experienced problems with the stripper clamp. Plaintiff testified that before the subject incident he had complained about a problem with the stripper clamp to management at Steel. The plaintiff's supervisor, Paul Tancraitor, Jr. testified that he was aware of problems with the stripper clamp before plaintiff's incident and was present when people were repairing the stripper clamp. Cliff Williams, the former shop office manager at Steel and the person who provided safety training to Steel employees, including plaintiff, testified that he was aware of a problem with the stripper clamp coming down unexpectedly before the incident with plaintiff occurred. Finally, one of plaintiff's co-employees, Clifford Barnard, Jr. who was the other person at Steel who operated the Fabripunch machine before the subject incident, testified that he also had experienced similar problems with the stripper clamp before the plaintiff suffered his injury.

Defendant C I Steel moves for summary judgment on plaintiff's claims against it arguing that it had no duty to plaintiff, it did not breach any duty to plaintiff and, even if it breached a duty to plaintiff, this breach was not the proximate cause of plaintiff's injuries. Defendant C I Steel also argues that because it has no liability to plaintiff, plaintiff cannot recover punitive damages against it.

Plaintiff alleges that defendant "knew of the problems with the hydraulic system that controlled the stripper clamp and the hazard it could cause but failed to correct the problem or warn Steel LLC and Mr. Smith of the problems existence." Plaintiff, citing Thorpe v. Robert P. Bullock, Inc., 179 Ga. App. 867 (1986) and the Restatement (Second) of Torts, argues that C I Steel, as "the seller of a product" is liable to plaintiff.

Plaintiff's reliance on the cited authority is misplaced, however, because Thorpe was an action against the manufacturer of a product pursuant to O.C.G.A. § 51-1-11 which permits such actions irrespective of privity. It is undisputed that defendant C I Steel was not the manufacturer of the Fabripunch machine. Furthermore, C I Steel was not engaged in the business of selling Fabripunch machines. The subject Fabripunch machine was transferred to plaintiff's employer almost one year before the accident at issue in this case and plaintiff points the court to no evidence which would support a finding that defendant C I Steel undertook the obligation to maintain the equipment after that time. Therefore, the court finds that plaintiff fails to establish a question of fact that defendant C I Steel had a duty to maintain the Fabripunch machine or that defendant C I Steel negligently maintained the equipment in a manner that caused harm to plaintiff.

Plaintiff also argues that defendant C I Steel failed to warn plaintiff of problems with the stripper clamp. Under Georgia law, a product seller which is not the manufacturer only has a duty to warn of dangers actually or constructively known at the time of sale. DeLoach v. Rovema Corp., 241 Ga. App. 802, 804 (2000). Furthermore, any alleged failure to warn must be the proximate cause of the plaintiff's injuries. Id.

Defendant argues that the problems it experienced with the stripper clamp are too dissimilar from the stripper clamp issue that caused plaintiff's injury. Plaintiff contends that the problems are identical and, therefore, defendant C I Steel breached its duty to warn plaintiff of the danger of physical harm.

Even assuming that the problems with the stripper clamp were identical, as plaintiff contends, the court finds that plaintiff fails to establish any duty on the part of defendant C I Steel to warn of the danger. C I Steel experienced problems with the stripper clamp in January 2002. C I Steel, following the advice of the manufacturer, replaced the module on the Fabripunch. Plaintiff fails to point the court to any evidence that C I Steel experienced any further problems with the stripper clamp after undertaking this repair more than a year before the Fabripunch machine was transferred to Steel and more than two years before plaintiff's accident. Therefore, the court finds that plaintiff fails to point to any evidence that defendant C I Steel actually or constructively knew of any danger at the time of the sale.

Furthermore, it is undisputed that plaintiff and other Steel employees experienced similar problems with the stripper clamp after the machine was transferred to Steel and before plaintiff's accident. Therefore, even assuming that defendant C I Steel had a duty to warn of any danger and breached that duty, this failure to warn could not have been the proximate cause of plaintiff's injuries. See id. Contrary to the arguments of plaintiff, defendant C I Steel does not assert an assumption of the risk defense but, rather, points out that if the plaintiff was aware of a problem with the stripper clamp (a problem about which plaintiff contends defendant C I Steel had a duty to warn plaintiff), then any failure on defendant C I Steel's part to warn plaintiff of the problem was not the proximate cause of plaintiff's injuries.

Having reviewed the arguments of the parties, the court finds that plaintiff fails to establish that defendant C I Steel breached any duty to maintain the equipment or any duty to warn plaintiff of any danger posed by the Fabripunch machine. Therefore, defendant C I Steel's motion for summary judgment [docket no. 84] is GRANTED.

Defendant C I Steel LLC's motion for summary judgment [docket no. 84] is GRANTED.

SO ORDERED.