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Emmons v. TRI Supply and Equipment Inc.

Superior Court of Delaware, New Castle

July 29, 2013

SHAWN EMMONS and CYNTHIA EMMONS, h/w, Plaintiffs,
v.
TRI SUPPLY AND EQUIPMENT INC., a Delaware Corporation and JCB, INC., a Maryland Corporation, Defendants

Submitted: May 8, 2013.

TRIAL BY JURY OF TWELVE DEMANDED

Upon Defendants' Motions for Summary Judgment GRANTED IN PART and DENIED IN PART.

Gary W. Aber, Esquire, Wilmington, Delaware, Attorney for Plaintiffs Shawn and Cynthia Emmons.

Kevin J. Connors, Esquire, Marshall, Dennehey Warner Coleman & Goggin, Attorney for Defendant Tri Supply and Equipment, Inc.

Theodore J. Segletes, III, Esquire, Marks O'Neill O'Brien Doherty & Kelly, P.C. Attorney for Defendants JCB, Inc.

DAVIS, J.

Introduction

This is a products liability and negligence action brought by Plaintiffs Shawn Emmons and Cynthia Emmons against Defendants Tri Supply and Equipment, Inc. ("Tri Supply") and JCB, Inc. ("JCB"). The Emmons seek damages in connection with an October 6, 2008 incident involving Mr. Emmons. At that time, Mr. Emmons was an ironworker with Fortress Steel Service, Inc. ("Fortress Steel"). Mr. Emmons was operating a rough terrain forklift – a JCB Model No. 508C LoadAll (the "LoadAll") – and moving 4, 000 pounds of rebar when the LoadAll turned over, resulting in injuries to Mr. Emmons. JCB designed and manufactured the LoadAll. Tri Supply purchased the LoadAll from JCB, rented it out for several years, and then sold it to Fortress Steel. The Emmons allege the accident occurred as a result of "a defect malfunction and/or improper service of" the LoadAll. Before the Court are (i) JCB's Motion for Summary Judgment (Under Delaware Law) ("the JCB Motion") and (ii) Tri Supply's Motion for Summary Judgment (Under Delaware Law) ("the Tri Supply Motion, and collectively with the JCB Motion, the "Motions"). For the reasons stated herein, the Motions are GRANTED in part and DENIED in part.

Procedural Background

The Emmons filed their Complaint in this action on September 22, 2010. They filed their Amended Complaint on April 8, 2011. On July 20, 2012, Tri Supply filed a Motion for Summary Judgment and Motion for the Application of Maryland Law. On July 24, 2012, JCB filed a Motion for Summary Judgment and Motion for the Application of Maryland law. The Court concluded, in an Opinion of October 17, 2012, that Delaware law applies to the Emmons' claims because Delaware has the most significant relationship to the occurrence and the parties.

In a letter to the parties' counsel on October 25, 2012 (the "October 25, 2012 Decision"), the Court denied Defendants' Motions for Summary Judgment. The Court observed that "[t]he major distinction between Delaware and Maryland, relevant to this case, is that Maryland allows the defense of contributory negligence to be used as a complete bar to recovery while Delaware allows the use of comparative negligence to reduce a plaintiff's recovery."[1] In considering a request by Defendants to resubmit the briefs in support of their Motions for Summary Judgment under Delaware law, the Court expressed confidence that its decision not to grant summary judgment would be the same under either Delaware or Maryland law and denied the request.[2] In denying summary judgment, the Court determined that there was the existence of multiple genuine issues of material fact. The Court articulated the various genuine issues as: whether the LoadAll's sway cylinder was covered by a Major Component Protection Plan; the circumstances surrounding how Mr. Emmons became separated from the LoadAll; whether the LoadAll was stopped when it overturned; the degree of the incline of the surface of the ground beneath the LoadAll; whether the sway cylinder caused the accident; and whether Tri Supply conveyed express warranties to Fortress Steel.[3]

On March 12, 2013, JCB filed the JCB Motion. On March 13, 2013, Tri Supply filed the Tri Supply Motion. The Emmons filed their responses to the Motions on April 23, 2013. The Court heard argument on the Motions on May 8, 2013. The following is the Court's decision.

Factual Background

Mr. Emmons was employed as an ironworker with Fortress Steel. On October 6, 2008, Mr. Emmons was operating the LoadAll to move 4, 000 pounds of rebar when the machine began to tip over. Mr. Emmons jumped or fell out of the ...


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