United States District Court, W.D. Virginia, Harrisonburg Division
PHYLLIS E. NORRIS, Administratrix of the Estate of Chester Cecil Norris, Plaintiff,
EXCEL INDUSTRIES, INC., Defendant
[Copyrighted Material Omitted]
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.
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.
Michael F. Urbanski, United States District Judge.
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.
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.
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.
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
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.
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
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.
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.
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,
106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
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.
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
Products Liability Claim
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
conform to (1) a government standard, (2) an industry
standard, or (3) the reasonable expectations of consumers.
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.
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."
§ 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.
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
standard and concludes that there is no evidence Excel failed
to comply with any government standard in the design of the
parties identified two sets of industry standards that could
apply to the Hustler Z: (1) ANSI standard B71.4 and (2) ...