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Norris v. Excel Industries, Inc.

United States District Court, W.D. Virginia, Harrisonburg Division

October 19, 2015

PHYLLIS E. NORRIS, Administratrix of the Estate of Chester Cecil Norris, Plaintiff,

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[Copyrighted Material Omitted]

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          For Phyllis E. Norris, Administratrix of the Estate of Chester Cecil Norris, Plaintiff: David Michael Kopstein, Philip Peter Kuljurgis, LEAD ATTORNEYS, Kopstein & Associates, LLC, Searbrook, MD; John Dress Gehlhausen, Robert Jay Ingraham, LEAD ATTORNEYS, PRO HAC VICE, John Gehlhausen, PC, Aurora, CO; Marc Philip Weingarten, LEAD ATTORNEY, PRO HAC VICE, Locks Law Firm, Philadelphia, PA.

         For Excel Industries, Inc., a Kansas corporation, doing business as Hustler Turf Equipment, Inc., Defendant: Carl Dewayne Lonas, Matthew James Hundley, LEAD ATTORNEYS, MORAN REEVES & CONN, RICHMOND, VA.

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         Hon. Michael F. Urbanski, United States District Judge.

         This is a products liability action involving the rollover of a zero-turn radius lawnmower, which resulted in the death of the plaintiff's husband, Chester Cecil Norris (" Mr. Norris" ). Before the court is defendant Excel Industries, Inc.'s (" Excel" ) Motion for Summary Judgment. ECF No. 147. The matter has been fully briefed, and the court heard oral argument on the motion on August 13, 2015. For the reasons set forth below, the court will GRANT Excel's motion.


         On July 16, 2013, Mr. Norris was tragically killed while mowing grass in a subdivision in Winchester, Virginia when his mower slid down a wet embankment, struck a culvert, rolled over, and landed on top of him. The mower was a 2007 Hustler Z Model 927772A zero-turn radius mower manufactured by Excel. John Updike (" Updike" ), the owner and operator of Evergreen Lawncare and Mr. Norris's employer, purchased the mower new in 2007 from Cutting Edge Small Engine Repair (" Cutting Edge" ), a local landscaping equipment dealer in Winchester. The mower did not have a rollover protection system (" ROPS" ) which consists of a seatbelt and a roll bar extending over the driver's head.

         In 2007, ROPS was not standard equipment on the Hustler Z, but rather was an option that a customer could purchase. Other mower models manufactured by Excel did feature ROPS as standard equipment. At that time, the American National Standard Institute (" ANSI" ) provided recommended standards and safety specifications for commercial turf care equipment such as the Hustler Z. The 2004 version of ANSI standard B71.4 applied when this mower was built and provided that certain stability tests, including a lateral upset test, should be performed on the mower to determine whether ROPS was necessary. The 2007 model of the Hustler Z met the requirements of ANSI standard B71.4.

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Thus, Excel did not make ROPS standard equipment for the Hustler Z, but instead provided ROPS as an optional safety package. ROPS became standard equipment on the Hustler Z in 2008.

         Excel also provided an owner's manual for the Hustler Z that was given to Updike. As part of his duties as the owner of Evergreen Lawncare, Updike reviewed this owner's manual with Mr. Norris, including sections describing how to operate the Hustler Z on slopes and the need to avoid dangerous terrain. Updike provided additional safety instructions to all his employees about avoiding wet terrain when mowing.

         Further, Mr. Norris was an experienced operator of the Hustler Z, having used that same mower multiple times while working with Evergreen Lawncare. Likewise, Mr. Norris had prior experience rolling over riding mowers. Mr. Norris suffered a closed head injury sometime in September 2012 when he accidentally rolled a mower. Though Mr. Norris apparently did not report this rollover to his employer, he did report to the emergency room at the Winchester Medical Center in Winchester, Virginia several weeks after the September accident to complain of head pain.

         In her amended complaint, Phyllis Norris (" Norris" ) alleges Excel negligently designed, manufactured, and sold the mower without rollover protection or an adequate warning of the need for a safety frame system. Norris also seeks punitive damages because Excel's negligence was willful, malicious, wanton, and reckless constituting a conscious disregard for the safety of consumers like the decedent.

         Excel moves for summary judgment on the design defect claim on multiple grounds: (1) ROPS was offered as an option on the Hustler Z; (2) the lack of ROPS is open and obvious; (3) Norris assumed the risk by operating the lawnmower without ROPS; (4) offering ROPS as an option on the Hustler Z satisfied the relevant ANSI standard; and (5) Norris is pursuing a " crashworthiness" claim not recognized under Virginia law. As to the failure to warn claim, Excel moves for summary judgment because Updike and Mr. Norris were knowledgeable, experienced users of zero-turn radius mowers and well aware of the risks associated with their operation.


         Pursuant to Federal Rule of Civil Procedure 56(a), the court must " grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should consider " the pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87,

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106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

         In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn, 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, " [i]t is an 'axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.'" McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 2014 WL 2871492, at *1 (4th Cir. 2014) (internal alteration omitted) (citing Tolan v. Cotton, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam)). Moreover, " [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ." Anderson, 477 U.S. at 255. However, the non-moving party " must set forth specific facts that go beyond the 'mere existence of a scintilla of evidence.'" Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the non-moving party must show that " there is sufficient evidence favoring the non[-]moving party for a jury to return a verdict for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 249). " In other words, to grant summary judgment the Court must determine that no reasonable jury could find for the non[-]moving party on the evidence before it." Moss v. Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (citing Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990)).


         As a federal court sitting in diversity, the court must apply the substantive law and choice-of-law rules of the forum state. See Salve Regina Coll. v. Russell, 499 U.S. 225, 226, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). The accident occurred in Virginia, so Virginia products liability law applies. See Frye v. Commonwealth, 231 Va. 370, 376, 345 S.E.2d 267, 272 (1986).

         A. Products Liability Claim

         In a products liability case, whether proceeding on an implied warranty or negligence theory of liability, the standard imposed on a manufacturer is essentially the same. Slone v. General Motors Corp., 249 Va. 520, 526, 457 S.E.2d 51, 54 (1995) (quoting Logan v. Montgomery Ward, 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975)). Under either theory, the plaintiff must show that a product contained a defect that rendered it " unreasonably dangerous for the use to which it would ordinarily be put or for some other reasonably foreseeable purpose and that the unreasonably dangerous condition existed when the [product] left the seller's hands." Sutherlin v. Lowe's Home Centers, LLC, No. 3:14-CV-368, 2014 WL 7345893, at *8 (E.D. Va. Dec. 23, 2014) (citing Logan, 216 Va. at 428, 219 S.E.2d at 687). Manufacturers are not required to produce " accident-proof products," Slone, 249 Va. at 526, 457 S.E.2d at 54, or even " incorporate the best or most highly-advanced safety devices." Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993) (citing Marshall v. H.K. Ferguson, 623 F.2d 882, 885 (4th Cir. 1980)). Thus, to determine if a product is unreasonably dangerous, a court " will consider safety standards promulgated by the government or the relevant industry, as well as the reasonable expectations of consumers." Alevromagiros, 993 F.2d at 420. A plaintiff cannot survive summary judgment unless she creates a genuine dispute of material fact that a product's design did not

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conform to (1) a government standard, (2) an industry standard, or (3) the reasonable expectations of consumers.

         Excel moves for summary judgment on a number of grounds, including that the Hustler Z complied with the applicable ANSI standard and conformed to the safety expectations of reasonable consumers. In response, Norris argues that: (1) the ANSI standards applicable to lawnmower manufacturers are voluntary, industry-created standards; (2) the ANSI standards have been criticized by the Consumer Product Safety Commission (" CPSC" ); (3) both the " design-safety hierarchy" and the Occupational Safety and Health Administration (" OSHA" ) standards require ROPS on zero-turn radius mowers like the Hustler Z; (4) other lawnmower manufacturers were providing ROPS as standard equipment when this mower was sold; and (5) " optimistic bias" prevents consumers from seeing the need for ROPS. Each of these arguments will be considered in turn.

         1. Government Standards

         At oral argument, Norris's counsel claimed that OSHA standards require ROPS on zero-turn radius mowers. OSHA's regulations are codified in Title 29 of the Code of Federal Regulations. Two sections address the need for ROPS on tractors: 29 C.F.R. § 1926.1002 and 29 C.F.R. § 1928.51. Section 1926.1002 applies to " agricultural and industrial tractors used in construction work." 29 C.F.R. § 1926.1002(b). Under that section, an " agricultural tractor" is defined as " a wheel-type vehicle of more than 20 engine horsepower, used in construction work, that is designed to furnish the power to pull, propel, or drive implements." 29 C.F.R. § 1926.1002(j)(1). Industrial tractors are those machines " used in operations such as landscaping, construction services, loading, digging, grounds keeping, and highway maintenance." 29 C.F.R. § 1926.1002(j)(2). While the definition of " industrial tractors" includes those used for landscaping purposes, § 1926.1002 does not apply in this case because there is no dispute that the Hustler Z was not " used in construction work."

         Section § 1928.51 is similarly inapplicable. This section requires ROPS for " tractors used in agricultural operations." 29 C.F.R. § 1928.51. An agricultural tractor is " designed to furnish the power to pull, carry, propel, or drive implements that are designed for agriculture. All self-propelled implements are excluded." 29 C.F.R. § 1928.51(a). There is no question that the Hustler Z at issue here was not designed to pull, carry, propel, or drive any agricultural implement, nor was it used in " agricultural operations." As such, this section of the C.F.R. also does not apply.

         Even more fundamental, however, is the fact that the OSHA standards apply to employers with respect to their relationship with their employees, not the relationship between a manufacturer and a consumer. The purpose of the OSHA standards is to ensure that an employer " furnish[es] to his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 C.F.R. § 1903.1; see also 29 U.S.C. § 651. " OSHA regulations are not relevant to the liability of a manufacturer to an employee of an industrial consumer." Davis v. Hebden, Schilbe & Smith, Inc., 52 F.3d 320, 1995 WL 231841, at *1 (4th Cir. 1995) (unpublished) (citing Minichello v. U.S. Industries, Inc., 756 F.2d 26, 29 (6th Cir. 1985)). Thus, the OSHA standards cited by Norris have zero bearing in this case, where the plaintiff is a consumer and the defendant is a manufacturer. As such, the court is unable to find any applicable government

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standard and concludes that there is no evidence Excel failed to comply with any government standard in the design of the Hustler Z.

         2. Industry Standards

         The parties identified two sets of industry standards that could apply to the Hustler Z: (1) ANSI standard B71.4 and (2) ...

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