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Somerlott v. McNeilus Truck and Manufacturing, Inc.

United States District Court, W.D. Washington, Seattle

December 14, 2017

BENJAMIN SOMERLOTT, Plaintiff,
v.
MCNEILUS TRUCK AND MANUFACTURING INC, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          Marsha J. Pechman, United States District Judge.

         THIS MATTER comes before the Court on Defendant's Motion for Partial Summary Judgment (Dkt. No. 74) and Plaintiff's Motion to Strike (Dkt. No. 85.) Having reviewed the Motions, the Response (Dkt. No. 76), the Reply (Dkt. No. 80), the Praecipe (Dkt. No. 84), the Surreply (Dkt. No. 85) and all related papers, the Court GRANTS Plaintiff's Motion to Strike and GRANTS IN PART and DENIES IN PART Defendant's Motion for Partial Summary Judgment.

         Background

         Plaintiff Benjamin Somerlott, a former refuse truck operator for Waste Management, brings suit against Defendant McNeilus Truck and Manufacturing, Inc. (Dkt. No. 3.) On October 28, 2014, Plaintiff was collecting residential recycling in a McNeilus side-loading refuse vehicle (the “Side Loader”). (Dkt. No. 74 at 5.) After loading the Side Loader, Plaintiff activated a button to empty the cart's contents into the “hopper, ” an open receptacle in the center of the unit. (Id. at 5-6.) Plaintiff alleges he was struck by a broken bottle ejected from the hopper, severing and partially severing tendons in his wrist. (Dkt. No. 3 at 3; Dkt No. 74 at 5.)

         Defendant claims it sold the Side Loader to Waste Management with a manual containing instructions and warnings for safe operation (the “Operator's Manual”). (Id. at 8.) However, Waste Management never gave Plaintiff the Operator's Manual, and instead trained him using its own self-created training materials. (Id.) Waste Management allegedly did not warn Plaintiff of the potential for refuse to exit the hopper. (Dkt. No. 74 at 21-22.) Nevertheless, Plaintiff observed “plastic bottles, tin cans, glass bottles, all kinds of stuff” exit the hopper on several occasions prior to the incident. (Id. at 16.) On one occasion, a pickle jar exited the hopper and covered him in pickle juice, and when he complained to management, he was told this was “part of the job.” (Id.)

         While Plaintiff concedes that the potential for refuse to exit the hopper was a “known danger or risk, ” he contends his injury could have been prevented had an on-product warning identified “the risk of serious harm or death from flying objects if the outside controls were used without adequate protective clothing that would have barricaded the body against dangerous items ejected from the hopper.” (Id.; Dkt. No. 77-2 at 3.)

         Defendant claims it provided decals to Waste Management which warned of the need to wear protective clothing and the risk of serious injury or death while operating the equipment. (Dkt. No. 74 at 10; Dkt. No. 80 at 3-4.) However, it is not clear whether decals were in fact provided to Waste Management, or whether they were merely depicted in the Operator's Manual. In any event, warning decals were not affixed to the Side Loader and were not seen by Plaintiff. (See Dkt. No. 76 at 5; Dkt. No. 84 at 1; Dkt. No. 85 at 3.)

         Plaintiff asserts claims for manufacturing and design defects, failure to warn, and breach of implied warranty of merchantability. (See Dkt. 3 at 4-6.) Defendant moves for partial summary judgment as to the manufacturing defect, failure to warn, and breach of implied warranty claims. (Dkt. No. 74.) Plaintiff does not oppose the motion as to the manufacturing and warranty claims. (Dkt. No. 76 at 6.)

         Discussion

         I. Legal Standard

         Summary 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.

         II. Motion to Strike

         Plaintiff moves to strike Defendant's Objections to Plaintiff's Evidence (Dkt. No. 82) and all references to on-product warnings affixed to the Side Loader. (See Dkt. No. 85.) With regard to the Objections, the Court finds that they are improper under the Local Rules and strikes them in their entirety. To the extent these objections seek to strike portions of Plaintiff's Response (Dkt. No. 77-2), they should have been included in Defendant's Reply. See LR 7(g) (“Requests to strike material contained in or attached to submissions of opposing parties shall not be presented in a separate motion . . .”). With regard to the references to on-product warnings, Defendant concedes there were no on-product warnings, and ...


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