United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Robert Benedict's
MOTION FOR SUMMARY JUDGMENT (ECF No. 52) . The motion was
granted by ORDER (ECF No. 221) dated November 27, 2017. This
Memorandum Opinion sets out the reasoning for having done so.
products liability action, Robert Benedict sues Hankook Tire
Company Limited ("HTCL") and Hankook Tire America
Corporation ("HTAC") for the production and
distribution of an allegedly defective tire. Benedict seeks
summary judgment as to Defendants' affirmative defense of
Undisputed Relevant Facts
morning of November 14, 2014, Benedict set out on his route
delivering cement for his employer, Essex Concrete
("Essex"), in a fully-loaded cement mixer truck.
Benedict was authorized to operate the truck because he
maintained a valid Commercial Driver's License
driving in the right-hand lane along Highway 288 in Colonial
Heights, VA on his way to the first delivery of the day,
Benedict heard a loud "boom." The tread on the
front right tire (the "subject tire") separated
(the "tread separation"), resulting in a sudden
loss of all air pressure. Benedict was caught completely off
guard by this event and, indeed, was uncertain as to whether
a tire failure had occurred. He had not noticed any items of
concern during his pre-trip inspection of the subject tire.
And, although he had experienced five to seven tire
disablements in the past, all had involved rear tandem tires
and none had resulted in a loud noise.
point after Benedict perceived the boom, his truck veered to
the right and struck an embankment on the side of the road.
The truck then rolled once and came to rest upright. Benedict
estimates that the total time between the boom and the
collision with the embankment was "at most, 2-3
seconds." Before the tire failure, Benedict was driving
normally and at a lawful speed. The incident was investigated
by a Virginia State Trooper, who concluded that Benedict took
no improper action in response to the disablement.
time of the accident, the 2014 Virginia Commercial
Driver's License Manual (the "CDL Manual"),
published by the Virginia Department of Motor Vehicles, was
in effect. It apprises commercial drivers of "important
information that [they] must know to operate [their]
vehicle[s] in a safe and professional manner." Pl's
Br. Ex. I Introduction. It advises drivers facing a tire
Hold the steering wheel firmly. If a front
tire fails, it can twist the steering wheel out of your hand.
Keep a firm grip on the steering wheel with both hands at all
Stay off the brakes. Braking when a tire has
failed could cause you to lose control. Unless you are about
to run into something, stay off the brake until the vehicle
has slowed down. Then, brake gently and pull off the road.
Check the tires. Even if the vehicle seems
to be handling normally. Many times you won't know that a
dual tire is flat unless you look at it.
Pl.'s Br. Ex. I 34.
subject tire was a Hankook Aurora TH08 Radial 425/65 R22.5
manufactured by HTCL in South Korea in 2005 and distributed
cuts extending to the belts have been found on the subject
tire. Federal regulations require removing tires from service
if they suffer cuts of a specified level of severity.
initially asserted three claims: (1) products liability
negligence (including manufacturing defect, design defect,
and failure to warn); (2) breach of the implied warranty of
merchantability; and (3) breach of the implied warranty of
fitness for a particular purpose. First Am. Compl. 5-11. He
is now pursuing only the negligent manufacturing and implied
warranty of merchantability claims. Nov. 20, 2017 Hr'g
raised several affirmative defenses in response, including
contributory negligence. HTCL's Answer to First Am.
Compl. 9; HTAC's Answer to First Am. Compl. 9.
sides then moved for summary judgment. Benedict sought
partial summary judgment to bar Defendants' contributory
negligence defense. Defendants sought summary judgment as to
Benedict's active claims. Related to their motion,
Defendants also moved the Court to exclude the testimony of
Benedict's tire expert, David Southwell. The Court ruled
on these three motions during a hearing held on November 20,
2017, Nov. 20, 2017 Hr'g Tr. 152, and issued an ORDER
(ECF No. 221) on November 27, 2017 formalizing its decision.
This Opinion is thus one of three detailing the Court's
reasoning in this matter. (ECF Nos. 341-43).
GOVERNING LEGAL STANDARDS
for summary judgment are governed by the following
Federal Rule of Civil Procedure 56(a) instructs that a court
“shall grant summary judgment if the movant shows that
there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A genuine issue of material fact exists
under Rule 56 "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
When evaluating a motion for summary judgment under Rule 56,
any disputed "facts must be viewed in the light most
favorable to the nonmoving party." Scott v.
Harris, 550 U.S. 372, 380 (2007). In general, the
"party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion" and "demonstrating] the absence of
a genuine issue of material fact. " Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
United States v. Woody, 220 F.Supp.3d 682, 685-86
(E.D. Va. 2016). "Once the moving party properly files
and supports its motion for summary judgment, the opposing
party must show that a genuine issue of fact exists."
Milbourne v. JRK Residential Am., LLC, 92 F.Supp.3d
425, 427 (E.D. Va. 2015).
is a contributory negligence jurisdiction, and, therefore, a
plaintiff's own negligence may be "a complete bar to
an action based on negligence." See Jones v. Meat
Packers Equip. Co., 723 F.2d 370, 373 (4th Cir.
1983). Contributory negligence is thus available
as an affirmative defense if "the plaintiff failed to
act as a reasonable person would have acted for his own
safety under the circumstances." Jenkins v.
Pyles, 611 S.E.2d 404, 407 (Va. 2005). To prevail, the
defense must establish "the independent elements of
negligence and proximate causation." See Rascher v.
Friend, 689 S.E.2d 661, 664-65 (Va. 2010).
standards governing the negligence prong of this framework
are familiar. A party must "show the existence of a
legal duty" and "a breach of the duty."
See Atrium Unit Owners Ass'n v. King, 585 S.E.2d
545, 548 (Va. 2003) . Compliance with a legal duty is
measured against the relevant "standard of care, "
which can be "established by the common law or by
statute, " among other things. See Ex ...