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Powell v. Diehl Woodworking Machinery, Inc.

United States District Court, E.D. Virginia, Richmond Division

August 3, 2016



          JOHN A. GIBNEY, JR. United States District Judge.

         This products liability action arises from a fatal incident at Museum Resource & Construction & Millwork, Inc. Jose Rodriguez died when a ripsaw produced a "kickback" sending a sliver of wood out of the machine, which struck Rodriguez in the head. Rodriguez's estate ("Rodriguez") now seeks compensatory and punitive damages from the producer of the ripsaw, Diehl Machines, Inc., and its holding company, Wabash Holding Corp. (collectively, "Diehl"). Rodriguez asserts claims for general negligence, negligent manufacture, negligent failure to warn, breach of implied warranty, negligent design, and wrongful death. Diehl tiled a motion to dismiss the entire amended complaint because Rodriguez cannot establish privity between himself and Diehl. Alternatively, Diehl asks the Court to dismiss individual sections of the complaint for various reasons. The Court grants the motion in part, and denies it in part. Count III fails to state a claim because it does not plead privity, an essential element of that claim. Parts of Count I fail to state a claim recognized under Virginia law. The Court, however, finds that Rodriguez's other claims sufficiently state a claim, and accordingly denies the rest of Diehl's motion to dismiss.

         I. BACKGROUND

         On October 3. 2012, Rodriguez stood at the end of a Diehl Model 75 ripsaw as his brother fed a board into the machine. Normally, the saw trims a board, and a belt carries the board out of the machine and into the waiting hands of a person on the other end. Unfortunately, this time the ripsaw experienced a "kickback", meaning the saw sheared off a sliver of wood, which shot out of the saw assembly. This projectile struck Rodriguez in the head, killing him.

         Rodriguez brings several negligence claims, an implied warranty claim, and a wrongful death claim. Count I asserts so-called general negligence by Diehl in designing, manufacturing, testing, marketing, selling, and failing to recall the ripsaw.[1] Count II says that Diehl negligently failed to warn Rodriguez about the dangers associated with the ripsaw. Count III claims that Diehl breached implied warranties associated with the ripsaw. Count IV asserts that Diehl negligently designed and manufactured the ripsaw. Finally, Count V alleges a wrongful death claim.

         II. DISCUSSION[2]

         Diehl asks the Court to dismiss the entire amended complaint for lack of privity. Privity, in the products liability context, requires that a person injured by a product have a direct connection with that product's manufacturer. See Va. Code Ann. § 8-654.3, repealed by Acts 1977, c. 617 (detailing Virginia's former statutory privity requirements). The Virginia legislature abolished the privity requirements for many product liability claims in 1962. Diehl, however, says that because it produced and sold the ripsaw before 1962, Virginia's anti-privity statutes do not apply, and Rodriguez must establish privity between himself and Diehl. Rodriguez essentially concedes privity does not exist, instead claiming that the privity requirement does not apply because the ripsaw falls within an exception for inherently dangerous products. Rodriguez correctly states that if the ripsaw could qualify as an inherently dangerous product, then the Court cannot dismiss the negligence claims for lack of privity.

         Diehl also asserts alternative bases to dismiss certain sections of the amended complaint. First, it argues that the Court should dismiss paragraphs 8B, 8C, 9B, and 9C of Count I, which lay out claims for duties to test and recall a product, because these claims rely on duties not recognized under Virginia law. Next, it urges the Court to dismiss the implied warranty claim in Count III for lack of privity. Diehl also asks the Court to dismiss Paragraphs 8A, 8D, 8E, 9A, 9D, 9E and 10 of Count I, because it says these paragraphs duplicate claims made in Count IV. Finally, Diehl argues that the Court should dismiss Count II because it asserts a post-sale duty to warn, which Diehl claims Virginia law does not recognize. The Court analyzes each claim in detail below.

         A. Lack of Privity as a Basis for Dismissing the Amended Complaint

         i. Pre-1962 Privity Requirements and the Anti-Privity Statutes

         Prior to 1962, plaintiffs bringing products liability claims in Virginia had to establish privity between themselves and the defendant manufacturer. See H. M. Gleason & Co. v. Int'l. Harvester Co., 197 Va. 255, 261-63, 88 S.E.2d 904, 908-09 (Va. 1955) (detailing Virginia's traditional privity doctrine). Under the pre-1962 statute, only a direct purchaser of a product from a manufacturer, "natural persons" living in that buyer's home, and that buyer's guests could recover for injuries caused by the product. Va. Code Ann, § 8-654.3. repealed by Acts 1977, c. 617. Under those requirements, a plaintiff like Rodriguez could not recover.

         In 1962, the Virginia legislature altered this privity requirement in products liability actions. First, it passed Va. Code Ann. § 8.2-318, which states that lack of privity between a plaintiff and defendant does not constitute a defense for either breach of warranty or negligence actions brought against a product manufacturer or seller. In 1966, it extended the reach of § 8.2-318 by passing Va. Code Ann. § 8.01-223, which stated that lack of privity does not constitute a defense for any negligence actions, including those previously not covered by § 8.2-318. These sections, however, only apply prospectively from June 29, 1962. Farish v. Courion Industries, Inc., 754 F.2d 1111, 1116-17 (4th Cir. 1985). Thus, if a plaintiff cannot show manufacture or sale of the product after that date, the pre-1962 privity requirements apply. Id.

         This case involves an antiquated ripsaw. Rodriguez does not allege that the manufacture or sale of the saw occurred after 1962, and virtually concedes that it happened before the statutory changes.[3] The failure to plead privity would ordinarily be fatal to the case. The inherently dangerous exception, however, prevents the Court from dismissing the amended complaint in its entirety.

         a. The Inherently Dangerous Exception to the Privily Requirements

         Virginia has long recognized an exception to the privity requirements for inherently dangerous products. The exception pre-dates the 1962 anti-privity statues, and applies regardless of the product's manufacture or sale date. Parish, 754 F.2d 1111, 1118. Courts will consider a product inherently dangerous if "the danger of injury stems from the product itself and not from any defect in it." Gen. Bronze Corp. v. Kostopulos, 203 Va. 66, 69, 122 S.E.2d 548, 551 (Va. 1961). Further, an inherently dangerous product must also possess dangers not obvious to the average user. Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 83-84 (4th Cir. 1962); see also Glover v. Johns-Manville Corp., 525 F.Supp. 894, 903-04 (E.D. Va. 1979). This limited exception applies only to negligence actions. Farish, 754 F.2d at 1118.

         Diehl asserts that the inherently dangerous exception cannot apply to the ripsaw in this case. It relies upon the Virginia Supreme Court's decision in Burrus v. Suddith,187 Va. 473, 47 S.E.2d 546 (Va. 1948). In that case, the Virginia Supreme Court heard an appeal of a trial court's judgment in favor of a plaintiff injured by a ripsaw. The trial court ruled that the ripsaw in that case was not an inherently dangerous object. Id. at 477-78, 47 S.E.2d at 548. On appeal, the Virginia Supreme Court simply chose not to disturb the lower court's ruling on that issue. Id. The justices did not squarely address the inherent danger of the ripsaw in that case, or of other ripsaw makes and models. This makes Diehl "s comparison between that case and the ripsaw at issue in ...

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