United States District Court, E.D. Virginia, Richmond Division
E.W. POWELL, ADMINISTRATOR FOR THE ESTATE OF JOSE RODRIGUEZ, Plaintiff,
DIEHL WOODWORKING MACHINERY, INC. et al., Defendants.
A. GIBNEY, JR. United States District Judge.
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.
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.
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. 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.
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.
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.
Lack of Privity as a Basis for Dismissing the Amended
Pre-1962 Privity Requirements and the Anti-Privity
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.
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.
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. 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.
The Inherently Dangerous Exception to the Privily
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.
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 ...