United States District Court, W.D. Washington, Seattle
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
J. Pechman United States District Judge
MATTER comes before the Court on Plaintiff's Amended
Motion for Summary Judgment. (Dkt. No. 40-1.) Having
considered the motion, the response (Dkt. No. 46), the reply
(Dkt. No. 48), and all related papers, the Court DENIES
Plaintiff's Motion for Summary Judgment in its entirety.
Benjamin Somerlott brings this products liability action
against Defendant McNeilus Truck and Manufacturing, Inc.
(Dkt. No. 3.) Plaintiff, a former refuse truck operator,
alleges he was operating a McNeilus Model 2644 Truck when he
was struck by a broken bottle ejected by the truck's side
loader. (Id. at 3.) Plaintiff alleges the broken
bottle lacerated his right arm, resulting in disability.
(Id.) Plaintiff alleges that the truck was
defectively designed, manufactured, and marketed by
Defendant, and that Defendant's negligence and failure to
warn of risk were proximate causes of his injury.
(Id. at 4-5.) Plaintiff asserts causes of action for
products liability under theories of manufacturing defect,
design defect, failure to warn, and breach of implied
warranty. (See id. at 4-6.)
asserted a variety of denials and affirmative defenses.
(See Dkt. Nos. 31, 46.) Defendant has since
withdrawn several, including: comparative fault; unclean
hands, waiver, and estoppel; willful misconduct of other
entities; and Industrial Insurance Act. (Dkt. No. 46 at
7-23.) Plaintiff does not seek summary judgment regarding
Defendant's affirmative defenses relating to lack of
warranty, lack of notice of breach, and lack of privity.
(Dkt. No. 40-1 at 10.) Accordingly, the defenses presently at
issue include: failure to state a claim; negligence of third
parties; intervening superseding acts; comparative
negligence; improper use and maintenance; assumption of risk;
failure to mitigate; failure to preserve evidence; adequate
warnings given to chain of distribution; offset; and
compliance with applicable standards. (See Dkt. No.
46 at 7-23; see also Dkt. No. 40-1 at 10.)
asks the Court to grant summary judgment in his favor as to
each of these denials and affirmative defenses. (See
Dkt. No. 40-1).
judgment is proper if the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits show that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The movant bears the initial burden to
demonstrate the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A genuine dispute over a material fact exists if
there is sufficient evidence for a reasonable jury to return
a verdict for the non-movant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 253 (1986). On a motion for summary
judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
his favor.” Id. at 255.
Product Liability Claims
moves for summary judgment as to Defendant's denials and
affirmative defenses of its product liability claims.
initial matter, Plaintiff fails to provide the legal standard
upon which the Court might rely to grant summary judgment as
to either. Courts in this district have previously held that
summary judgment is not the proper method for striking an
affirmative defense.See Kerzman v. NCH Corp., No.
C05-1820JLR, 2007 WL 765202, at *7 (W.D. Wash. Mar. 9, 2007)
(Robart, J.) (“[T]o claim insufficiency of defense
should not be considered a request for judgment but more
aptly a request to strike it from the pleading.”).
While the Court may strike affirmative defenses if they
present an “insufficient defense, or any redundant,
immaterial, impertinent, or scandalous matter, ”
Fed.R.Civ.P. 12(f), Plaintiff has neither requested this
relief nor shown it is warranted. See Kerzman, 2007
WL 765202, at *7 (“In order to strike Defendants'
allegedly insufficient affirmative defenses, Plaintiff must
show that there are no questions of fact, that any questions
of law are clear and not in dispute, and that under no set of
circumstances could the defense succeed.”) (citation
and internal quotation marks omitted).
were it procedurally proper, Plaintiff's Motion
nevertheless is unavailing. Under Washington's Product
Liability Act (“WPLA”), a manufacturer is liable
to a plaintiff whose harm is proximately caused by its
product that was not reasonably safe as designed or
manufactured, or because it did not conform to the
manufacturer's express or implied warranty, or because
adequate warnings or instructions were not provided. RCW
7.72.030(1)-(2). While Plaintiff broadly asserts “there
are no questions of fact regarding the Defendant's
affirmative defenses, ” (Dkt. No. 40-1 at 6) there are
multiple disputed facts bearing directly on Defendant's
liability. For example, there is a dispute as to whether the
truck was reasonably safe as designed and manufactured.
(See Dkt. No. 46 at 9-11.) There is a dispute as to
whether Defendant was the proximate cause of Plaintiff's
injury. (See id. at 12-15.) There is also a dispute
as to whether Plaintiff mitigated damages from his injury.
(See id. at 19-20.)
has provided ample citations to the record - including
Plaintiff's deposition testimony, deposition testimony of
other percipient witnesses, and reports of experts and
medical practitioners - to support its denials and
affirmative defenses. At a minimum, this evidence gives rise
to disputes of fact requiring resolution by a jury. ...