The opinion of the court was delivered by: A Benjamin H. Settle United States District Judge
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendants' motion for summary judgment (Dkt. 52). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.
On February 25, 2010, Plaintiff Michael Kirkland ("Kirkland") filed the original complaint in this action alleging claims against Defendants relating to an accident that occurred on November 26, 2008, at Kirkland's place of employment, the Cameron Family Glass Packaging plant ("Cameron"). Dkt. 1. On February 16, 2011, Defendants filed their motion for partial summary judgment (Dkt. 52). On March 7, 2011, Kirkland filed a response to Defendants' motion which he titled as an opposition and cross-motion for partial summary judgment. Dkt. 57. However, because the Court's scheduling order required that dispositive motions be filed no later than February 16, 2011, the Court will not consider Kirkland's response as a cross-motion for summary judgment. On March 11, 2011, Defendants replied (Dkt. 69).
II. RELEVANT FACTUAL BACKGROUND
Solely for purposes of deciding the instant motion, the Court will assume the facts as stated in Defendants' motion for partial summary judgment (Dkt. 52 at 2-11) because, even when such facts are taken as true, Defendants' motion must be denied.
In his complaint, Kirkland alleges as follows:
4.1 Defendant Emhart Glass is liable for Mr. Kirkland's injuries because the subject Individual Section Machine was not reasonably safe in its design, and because adequate warnings were not provided with the product or after manufacture, and as such, the subject Individual Section Machine was unsafe to an extent beyond that contemplated by an ordinary user and consumer as set forth in RCW 7.72.030.
4.2 The defects in the design of the subject Individual Section Machine include, but are not limited to, the following: (a) the flip plate at the location where Michael Kirkland was working did not extend as far as the trapezoidal foot pad at that location, and (b) Defendant Emhart Glass failed to provide a reasonably safe means of protecting workers from exposure to injury resulting from contact with red hot bottles on the conveyor when performing mold changes.
4.3 Defendant Emhart Glass is strictly liable to Plaintiff because the Individual Section Machine was unsafe to an extent beyond that which would be contemplated by an ordinary user.
Dkt. 1 at 11-12. In the instant motion, Defendants state that they anticipate Kirkland will attempt to bring at trial six theories of liability to support his claim under Washington's Product Liability Act ("WPLA") and seek summary judgment on the following five theories: (1) failure to warn based upon a risk-utility analysis; (2) failure to warn based upon a consumer expectations test; (3) a post-manufacturing failure to warn based upon a negligence standard; (4) design defect based upon a consumer expectations test; and (5) a general strict liability claim based upon consumer expectations. Dkt. 52 at 1. Thus, Defendants seek summary judgment of all of Kirkland's theories of liability with the exception of a design defect based upon a risk-utility test. Id.
A. Summary Judgment Standard
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial -- e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).
The WPLA, RCW 7.72 et seq. , is the exclusive remedy for product liability claims in Washington. Washington Water Power Co. v. Graybar Elec. Co., 112 Wn. 2d 847, 853 (1989). The WPLA is preemptive and its scope is broadly defined to include any claim or action brought for harm caused by the product. Id. The purpose of the statute is to eliminate common law remedies and provide a single cause of action. Id. at 854. The WPLA creates a single cause of action for product-related harm with specified statutory requirements for proof. Stanton v. Bayliner Marine Corp., 123 Wn. 2d 64, 71 (1993). See also, Washington State Physicians Ins. Exchange & Ass'n v. Fisons Corp., 122 Wn.2d 299 (1993) (stating that the WPLA creates a single cause of action for product-related harms, and supplants previously existing common law remedies, including common law actions for negligence).
The WPLA imposes liability on a product manufacturer if its product is not reasonably safe as designed (design defect claim) or because adequate warnings or instructions were not provided (failure to warn claim). RCW 7.72.030(1). In a failure to warn claim, the manufacturer may be liable for a danger that is either known at the time of manufacture, or that becomes known after manufacture. RCW 7.72.030(1)(b) and (c). Under Washington law, a plaintiff may establish liability by using either a risk-utility test or a consumer expectation test for both design defect and failure to warn claims. Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747 (1992) (en banc) (failure to warn claim); Falk v. Keene Corp., 113 Wn.2d 645, 782 (1989) (en banc) (design defect claim). Although RCW 7.72.030 uses the term "negligence," strict liability is the applicable standard for a failure to warn or a design defect claim maintained under RCW 7.72.030(a) or (b). Ayers, 117 Wn.2d at 765; Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 326-327 (1999) (citing Falk, 113 Wn.2d at 653). However, for failure to warn claims involving a danger that becomes known after manufacture, a negligence standard is applied. Ayers, 117 Wn.2d at 765.
A plaintiff who seeks to establish liability of a manufacturer under RCW 7.72.030(1)(a) or (b) may do so in two ways. Soproni, 137 Wn.2d at 326-327 (citing Falk, 113 Wn.2d at 653). One way is referred to as the "consumer expectations" test, "which requires the plaintiff to show that the product was 'unsafe to an extent beyond that which would be contemplated by the ordinary consumer.'" Id. at 327. The second way a plaintiff may attempt to establish liability is the "risk-utility test." Id. at 326.
Here, Defendants have moved for summary judgment regarding Kirkland's use of the risk-utility test to prove failure to warn at the time of manufacture and his use of the consumer expectations test to prove failure to warn at the time of manufacture, design defect and any independent strict liability claim he may attempt to bring under the consumer expectations test. Dkt. 52. Defendants also seek summary judgment regarding Kirkland's negligence claim regarding their failure to warn after manufacture. Id.
C. Failure to Warn or Provide Adequate Instructions
Under RCW 7.72.030(1), "[a] product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided." The definition of "not reasonably safe," for purposes of a suit alleging failure to warn or give ...