Opinion
Civil Action No. CCB-06-2436.
June 5, 2009
MEMORANDUM
Now pending before the court are motions for summary judgment filed by defendants Penske Truck Leasing Company, L.P., Inc. ("Penske") and Leyman Manufacturing Corporation ("Leyman"), against plaintiffs Jose and Brigida Valerio. In connection with the malfunction of a truck side lift gate that resulted in serious injuries to Mr. Valerio, plaintiffs are suing both Leyman and Penske for negligent installation, maintenance, and repair of that side lift gate (Count VI) and loss of consortium (Count VII), and are suing Leyman for defective design (Count I), defective manufacture (Count II), defective warning (Count III), breach of implied warranties (Count IV), and negligence (Count V). The issues in this case have been fully briefed and a hearing was held on May 28, 2009. For the reasons stated below, both motions will be granted.
BACKGROUND
The following facts are presented in the light most favorable to Mr. Valerio. In 2003, Mr. Valerio was employed as a truck driver by Automatic Rolls of Baltimore, a subsidiary of Northeast Foods, Inc., that specializes in the production and delivery of baked goods for area restaurants, including McDonald's Corp. In this position, one he had held for over four years, he was tasked with making multiple daily deliveries and unloading large quantities of freight from his truck at each delivery location. The trailer attached to his truck — identified by the numbers 6905 and 16905 — is owned by Automatic Rolls, as is the truck itself, and is serviced by Penske under a contractual service agreement. (Pls.' Opp. to Penske S.J. Mot. at Ex. D.) To facilitate deliveries, the trailer, like many others in the Automatic Rolls fleet, is equipped with a TLS 3000 side lift gate, manufactured by Leyman. This device is essentially a movable rectangular platform affixed to the trailer, which can be raised to the height of the trailer's side door (about four feet off the ground) when freight needs to be unloaded from inside, and then lowered to the ground while both the freight and the employee are on it, enabling easy unloading. The main platform of the side lift gate is six feet wide and fifty-one inches deep, and can accommodate up to four stacks of baked goods at a time. (Pls.' Opp. to Leyman S.J. Mot. at Ex. A, Valerio Dep. at 63; id. at Ex. E, Link Report at 3.) When not in use, the side lift gate retracts into a position underneath the body of the trailer. The raising and lowering of the side lift gate is controlled by a remote control, attached to the right-hand side of the side lift gate via a long cord. The particular side lift gate involved in this case also included collapsible hand rails on the sides and front of the gate's main platform — referred to in the gate's accompanying training video as "safety rails" — that would keep both persons and freight confined to the main platform when the gate was in use, and could then be folded down flat for stowing. (TLS Leyvador Operations Video at 1:57; see Pls.' Opp. at Ex. C.)
For purposes of this memorandum, "right-hand side" describes the side to one's right when one is looking at the side lift gate from outside the trailer, and "left-hand side" describes the side to one's left.
The "front" of the main platform is the edge of the main platform furthest away from the trailer's side door.
At the front edge of the side lift gate is a loading ramp, a piece of metal — six feet wide and one foot deep — that hangs off the end of the main platform and is attached by means of two bracket hinges at each adjoining corner. Each bracket hinge is composed of a C-shaped piece of metal (the "hinge barrel"), which is welded at each tip to the main platform, and a thick metal rod that rests within the curve of the hinge barrel and is itself attached to the side edge of the ramp. ( See Pls.' Opp. to Leyman S.J. Mot. at Exs. B C; Leyman S.J. Mot. at Ex. F.) The front edge of the ramp is meant to rest on the ground when the ramp is in use, so that the ramp may be supported at each end (by the main platform on one end and the ground on the other) when freight is loaded onto and off of it. ( See id.)
On December 3, 2003, Mr. Valerio was making a delivery to a McDonald's restaurant in Wilmington, Delaware, and had just completed moving four stacks of hamburger buns — each on a wheeled dolly, and each about seven feet high — onto the raised side lift gate, leaving very little room for maneuvering. (Pls.' Opp. to Leyman S.J. Mot. at Ex. A, Valerio Dep. at 56-60 65-68.) The front hand rails on the side lift gate were missing that day. ( Id. at 131.) Mr. Valerio, wanting to lower the main platform, attempted to squeeze past the stacks to get to the main platform's front right-hand corner so that he could reach out and grab the remote control. As he reached for the remote control, he placed at least one foot on the ramp, at which point the hinge barrel on the right-hand side bracket hinge broke and the ramp slid out from the other bracket hinge, causing the entire ramp to fall to the ground, with Mr. Valerio falling along with it. ( Id. at 61-63.) Mr. Valerio initially landed on his feet, and then fell down, hitting his shoulder. ( Id. at 70-72.) While on the ground, Mr. Valerio noticed the snapped hinge barrel, and picked it up, seeing as he did so that it had a very thin weld on it that appeared uncharacteristic. ( Id. at 75 117-19.) After resting a bit on the sidewalk to try to recover from his fall, he then resumed his deliveries, managing to complete his route despite feeling strong pain in his stomach. ( Id. at 73-80.)
Mr. Valerio cannot recall whether he put one foot on the ramp or both feet on the ramp. (Pls.' Opp. to Leyman S.J. Mot. at Ex. A, Valerio Dep. at 69.)
When he finished his route, Mr. Valerio returned to the facility where his trailer was kept, partially filled out a Penske vehicle inspection report documenting the broken bracket hinge, and turned over the report and the broken hinge barrel he had picked up to an Automatic Rolls employee. ( Id. at 79-81 125.) Mr. Valerio claims that injuries from his fall eventually resulted in permanent damage to his neck, back, and legs, and was the impetus for multiple surgeries. ( Id. at 92-95; see Compl. ¶ 14.) He and his wife now bring this suit against Leyman and Penske to recover for his injuries and the corresponding loss of consortium.
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment:
should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.
Fed.R.Civ.Pro. 56(c). The Supreme Court has clarified that this does not mean any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
A. Claims Against Leyman Only
i. Products Liability Claims — Strict Liability (Counts I-III)
Plaintiffs assert several strict liability claims against Leyman as the manufacturer of the side lift gate that broke, namely defective design (Count I), defective manufacture (Count II), and defective warning (Count III). In Maryland, plaintiffs raising strict liability claims for defective design, manufacture, and warning must establish:
(1) the plaintiff was the user or consumer of an alleged defective product;
(2) the defendant was the seller of the product and at the time of sale was engaged in the business of selling such a product;
(3) at the time of sale the product was defective;
(4) the product reached the plaintiff without substantial change in the condition in which it was sold;
(5) the defect made the product unreasonably dangerous to the plaintiff; and
(6) the defect proximately caused plaintiff's injuries.Shreve v. Sears, Roebuck Co., 166 F. Supp. 2d 378, 406-07 (D. Md. 2001) (citing Phipps v. Gen. Motors Corp., 363 A.2d 955, 959 (Md. 1976). The above elements may be established through direct or circumstantial proof from the nature of the product itself and the incident involved, or through affirmative proof in the form of opinion testimony of an expert witness. Id. at 407-08.
Plaintiffs have failed to establish either that the side lift gate was defective at the time of sale, or that the side lift gate reached Mr. Valerio without a substantial change in the condition in which it was sold. To establish that the side lift gate was defective at the time of sale, the plaintiffs must "prove the existence of a defect at the time the product leaves the manufacturer." Ford Motor Co. v. Gen. Acc. Ins. Co., 779 A.2d 362, 369 (Md. 2001). Plaintiffs claim that the apparent design defect in the side lift gate was the "considerable slip between the hinge pin and the hinge barrel or Bracket" of the side lift gate's bracket hinges. (Pls.' Opp. to Leyman S.J. Mot. at 6.) In making this claim, they rely on the testimony of their proffered expert, Roger Link. ( See id. at Ex. D, 2007 Link Dep. at 77; see also id. at Ex. E, Link Report at 5-7 (citing as a design defect the "excessive play in the hinge pin assembly of the ramp" and the stress placed on the bracket hinges thereby).) Assuming without deciding that Mr. Link is qualified to provide expert testimony in this matter, his testimony fails to prove the existence of this alleged defect at the time the side lift gate left Leyman. Mr. Link stated that this defect existed only for the right-hand bracket hinge, and only at the time he first inspected it nearly three years after the accident. ( Id. at Ex. D, 2007 Link Dep. at 73-78.) Mr. Link was not able to determine if the defect existed at the time the side lift gate left Leyman, let alone if it existed at the time of the accident, admitting as much at several points in his two depositions. ( See, e.g., id. at 73 ("I can't state that that's the way it was at the time of the accident"); id. at Ex. F, 2008 Link Dep. at 50 52-53 (stating that he had no information about the state of the bracket hinges when the side lift gate was delivered to Automatic Rolls).) Furthermore, Mr. Link has provided no evidence as to why this slip in the bracket hinge is a defect at all, other than his speculations. See Redford v. SC Johnson Son, Inc., 437 F. Supp. 2d 391, 395 (D. Md. 2006) (in Maryland products liability cases, "a plaintiff's proof must still arise above surmise, conjecture, or speculation") (internal quotations and citation omitted); Crickenberger v. Hyundai Motor America, 944 A.2d 1136, 1145 (Md. 2008) (same). Accordingly, plaintiffs have failed to prove this element of their strict liability claims.
Moreover, both Mr. Link and plaintiffs admit that the slippage is not the defect that caused Mr. Valerio's injuries. Plaintiffs describe the cause of the accident as a snapped hinge barrel with a "very thin" weld (Pls.' Opp. to Leyman S.J. Mot. at 3), and Mr. Link concludes in his expert report that the side lift gate failed "due to inadequate welds holding the hinge assembly of the end ramp to the platform." ( Id. at Ex. E, Link Report at 7; see also id. at Ex. F, 2008 Link Dep. at 32.)
To the extent that plaintiffs contend in the alternative that the design defect was the thin welding on the bracket hinge ( see, e.g., Pls.' Opp. to Leyman S.J. Mot. at 5-6; id. at Ex. E, Link Report at 5 7), they have failed to prove that this alleged defect existed at the time the side lift gate left Leyman, let alone at all. Mr. Link was only able to fully examine the welds on the left-hand side of the suspect side lift gate, as the snapped hinge barrel from the right-hand bracket hinge was (and still is) unavailable for inspection. See infra Section B. Accordingly, his conclusion that the right-hand bracket hinge was poorly welded at the time of the accident is at best an inference. Furthermore, it is an inference drawn from an examination of side lift gate bracket hinges that may all have exhibited welds performed by an entity other than Leyman. Mr. Link concedes in his report that "[i]t is not known if these welds were original from Leyman or performed during maintenance by Penske." (Pls.' Opp. to Leyman S.J. Mot. at Ex. E, Link Report at 5.) This evidence of design defect, like the evidence of defective hinge barrel slippage, is therefore speculative, and so not legally sufficient to sustain a strict liability claim of defective design. See Redford, 437 F. Supp. 2d at 395; Crickenberger, 944 A.2d at 1145.
Plaintiffs have also failed to establish that the side lift gate reached Mr. Valerio without a substantial change in the condition in which it was sold to Automatic Rolls; indeed, plaintiffs have established the opposite. First, plaintiffs have submitted documentation of repairs performed to the suspect side lift gate prior to the accident that show it had been changed on several occasions from its original condition, with parts having been removed, replaced, or rewelded. (Pls.' Opp. to Penske S.J. Mot. at Ex. J, Penske Repair Orders at 1-3.) Mr. Valerio also notes in his deposition that when he picked up the broken hinge barrel on the day of the accident, he identified the welding on the hinge barrel as not in keeping with what he had previously seen on that type of side lift gate. (Pls.' Opp. to Leyman S.J. Mot. at Ex. A, Valerio Dep. at 117.) Second, Mr. Valerio concedes that the front hand rails on the side lift gate were missing on the day he fell. ( Id. at 131.) Robert Meyer, the Leyman engineer who oversaw the design and manufacturing of the side lift gate in question, testified that the front hand rails Leyman installed on the gate were meant in part to "prevent people from standing on the ramp when they shouldn't stand on the ramp. . . . [and to] make sure that the product and the operator stayed on the flat part of the platform." ( Id. at Ex. G, Meyer Dep. at 13-14, 17-18 70.) In light of both the absence of the front hand rails and the above evidence of several other alterations to the side lift gate, plaintiffs cannot successfully contend that the gate reached the plaintiff on the day of the accident without substantial change in the condition in which it was sold. See Hood v. Ryobi America Corp., 181 F.3d 608, 611-12 (4th Cir. 1999).
Furthermore, Mr. Link admits that, in his examinations of multiple side lift gates in the Automatic Rolls fleet, he saw many instances of alterations from the original Leyman-manufactured state. (Pls.' Opp. to Leyman S.J. Mot. at Ex. F, 2008 Link Dep. at 32-23.) Some of these alterations are ones that he concedes Leyman specifically warned against making, i.e. additions of parts not manufactured by Leyman; Mr. Link also noted that the left-hand bracket hinge of the side lift gate in question had been altered at some point — he does not know when — to include two hexagonal nuts that were not manufactured by Leyman. ( Id.)
Because plaintiffs have failed to prove these two elements of their strict liability claims, these claims must fail.
ii. Products Liability Claims — Negligence (Count V)
Plaintiffs also contend that Leyman was negligent in its design, manufacture, and warnings for the side lift gate at issue. In Maryland, to establish a claim for negligence based upon a defective product, plaintiffs must establish: (1) a defect in the product that existed at the time of sale; (2) attribution of that defect to the seller; and (3) a casual relationship between the defect and the alleged injury. Laing v. Volkswagen of America, Inc., 949 A.2d 26, 39 (Md.Ct.Spec.App. 2008); see also Ruffin v. Shaw Indus., Inc., 149 F.3d 294, 301 (4th Cir. 1998). Because, as shown above, plaintiffs have failed to show that a defect existed in the side lift gate at the time of sale, their negligence claims fail as a matter of law. See Singleton v. Int'l Harvester Co., 685 F.2d 112, 117 (4th Cir. 1981); Hartford Cas. Ins. Co. v. Marpac Corp., 193 F. Supp. 2d 859, 862-63 (D. Md. 2002) (granting summary judgment where products liability plaintiff alleging negligence failed to establish the existence of a defect at the time of sale). iii. Implied Warranty Claims (Count IV)
Even if plaintiffs had been able to make out a prima facie case of negligence in the design, manufacture, and warnings for the side lift gate, it appears likely that their claim of negligence against Leyman would be defeated by Mr. Valerio's contributory negligence. It is well established that, in Maryland products liability cases, negligence claims may be overcome by a showing that the plaintiff was contributorily negligent. See Stanley Martin Cos., Inc. v. Universal Forest Prods. Shoffner LLC, 396 F. Supp. 2d 606, 622 (D. Md. 2005). Contributory negligence is "the failure to observe ordinary care for one's own safety. It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances." Union Mem'l Hosp. v. Dorsey, 724 A.2d 1272, 1275 (Md.Ct.Spec.App. 1999) (internal quotations and citations omitted). When successfully shown by the defendant, the plaintiff's contributory negligence "operates as an absolute bar to recovery under Maryland law." Stanley Martin Cos., Inc., 396 F. Supp. 2d at 622 (internal quotations and citation omitted). Although usually a jury determination, contributory negligence may be determined by the court as a matter of law "when reasonable minds could not differ on the outcome." Id.; see Dorsey, 724 A.2d at 1275.
Here, Leyman has shown through Mr. Valerio's own deposition testimony that he was not using ordinary prudence when he stepped on the side lift gate ramp. Mr. Valerio admitted that he was in a rush at the time the accident happened, and further admitted that the reason he stood on the ramp rather than on the side of the main platform when he was reaching for the remote control was because he did not think through his actions. (Pls.' Opp. to Leyman S.J. Mot. at Ex. A, Valerio Dep. at 61 68.) He stated, "I didn't think. I mean, I was trying to do my job quick. I didn't think." ( Id. at 68.) Moreover, Mr. Valerio admitted watching the side lift gate training video prior to using the gate, which both visually and verbally instructed users of the gate to enter and exit the gate's main platform via the space between the side hand rail and the trailer, and to only move off the main platform when the gate was fully lowered. (Pls.' Opp. to Leyman S.J. Mot. at Ex. A, Valerio Dep. at 144 149; see, e.g., TLS Leyvador Operations Video at 3:48 ("Once on the ground, step off the platform between the handrail and the trailer.").) While on-the-job efficiency is commendable, an employee must still observe ordinary care for his safety in the process. Mr. Valerio's actions and admissions suggest that his efforts at efficiency caused him to fail to act in the way a person of ordinary prudence would under the circumstances. Cf. Ellsworth v. Sherne Lingerie, Inc., 495 A.2d 348, 357 (Md. 1985) ("Momentary inattention or carelessness on the part of the user . . . may constitute contributory negligence").
Plaintiffs claim that, by selling a "unit [that] has been determined to be unsafe," Leyman breached implied warranties of merchantability and fitness for a particular purpose. (Comp. ¶ 37.) See Md. Code, Com. Law. §§ 2-314 (implied warranty of merchantability) 2-315 (implied warranty of fitness for a particular purpose). Assuming without deciding that these warranties existed, the court turns to the question of whether they were breached. To make out their breach of warranty claims, plaintiffs "must establish `three product litigation basics': the existence of a defect, attribution of the defect to the seller, and a causal relationship between the defect and plaintiff's damages." Crickenberger, 944 A.2d at 1144 (quoting Gen. Acc. Ins. Co., 779 A.2d at 370). The existence of a defect is proven the same way the defectiveness element of strict liability claims is proven, namely, by establishing "the existence of a defect at the time the product leaves the manufacturer." Gen. Acc. Ins. Co., 779 A.2d at 369. Because, as discussed above, plaintiffs have failed to establish this fact, their breach of implied warranty claims must fail.
B. Claims Against Leyman Penske
Plaintiffs next assert that both Leyman and Penske were negligent in their installation, maintenance, and repair of the side lift gate. In order to make out these claims, plaintiffs need to establish, for each defendant, that: (1) it owed Mr. Valerio a duty to exercise ordinary and reasonable care in installing, maintaining, or repairing the side lift gate; (2) it was negligent in its installation, maintenance, or repair of the side lift gate; (3) Mr. Valerio suffered an actual injury; and (4) Mr. Valerio's injury was proximately caused by the defendant's negligence. See Pinney v. Nokia, Inc., 402 F.3d 430, 444 (4th Cir. 2005); Hemmings v. Pelham Wood Ltd. Liab. Ltd. P'ship, 826 A.2d 443, 451 (Md. 2003); see also 11 Causes of Action 487 § 3.
As to defendant Leyman, plaintiffs have shown through their submission of the Penske service agreement (Pls.' Opp. to Penske S.J. Mot. at Ex. D) and several Penske repair orders ( id. at Ex. J) that Leyman was not involved in the maintenance or repair of the side lift gate at issue, so these claims fail because there was no original duty. Leyman did install the side lift gate (Leyman S.J. Mot. at Ex. C, Answers to Interrog. at 3), but no evidence has been presented establishing that its installation of the side lift gate was negligent. Plaintiffs make no specific suggestion as to how Leyman was negligent in its installation of the gate other than generally alleging this to be the case and then pointing out that the bracket hinge broke. The lone fact that the bracket hinge broke, however, over a year after the gate was installed, is insufficient to raise an inference of negligence, particularly given plaintiffs' expert's admission that he could not determine if the bracket hinge was in the same condition on the date of the accident as it was on the date of installation. ( See Pls.' Opp. to Leyman S.J. Mot. at Ex. D, 2007 Link Dep. at 73; id. at Ex. G, Meyer Dep. at 41 (placing the date of the gate's manufacture and installation at June 2002).) Accordingly, the negligent installation claim against Leyman cannot be sustained. See Bouchat, 346 F.3d at 525.
Mr. Link admits that he did not conduct any inspections of newly installed Leyman side lift gates. (Pls.'s Opp. to Leyman S.J. Mot. at Ex. F, 2008 Link Dep. at 35 73-74.) Moreover, he never identifies negligent installation as an issue in either his report or his depositions.
As to defendant Penske, because it did not install the side lift gate, it may only be held liable under plaintiffs' claims of negligent maintenance and repair. Given that Penske entered into a contract with Automatic Rolls to service the trailer in question (Pls.' Opp. to Penske S.J. Mot. at Ex. D), it was under a duty to exercise reasonable care in maintaining and repairing it. See 2 Restatement (Second) of Torts § 323. The existence of this duty is corroborated by Automatic Rolls' corporate designee. ( See Pls.' Opp. to Penske S.J. Mot at Ex. M, DuVal Dep. at 25 ("I do know that that trailer would have been Penske's responsibility.").)
There is some evidence that Penske was negligent in its maintenance and repair of the side lift gate at issue. Specifically, it appears that Penske performed welds on the side lift gate and that some of these welds were not in conformity with Leyman requirements. Although Penske maintains that it never performed any welding on the actual hinge barrel that snapped, there is evidence that the gate's ramp was malfunctioning prior to the accident and that Penske made repairs to it, and further that at least some of these repairs involved welding. ( See Pls.' Opp. to Penske S.J. Mot. at Ex. J, Penske Repair Orders at 1 (Penske records that it "reweld[ed]" pins on a lift gate on the trailer); 2 (Penske records that it "welded stop back on arm for [side lift gate's] release handel [sic]"); 3 (repair order complaining that "fold down plateform [sic] on the end of the side lift gate is coming off" and noting that repairs were made).) When Leyman's engineer, Mr. Meyer, examined photographs of particular welds on the side lift gate, he determined that they were likely not original welds, because they "look[] to be a poor quality." (Pls.' Opp. to Penske S.J. Mot. at Ex. L, Meyer Dep. at 88.) Additionally, at least one of the welds performed on the side lift gate involved parts not authorized by Leyman, which expressly cautions in its operations manual for the gate: "Use only factory authorized parts for replacement." (Pls.' Opp. to Leyman S.J. Mot. at Ex. L.) Mr. Meyer observed that two hexagonal nuts that were welded onto the side lift gate at one point in time were plainly not Leyman authorized parts. (Pls.' Opp. to Penske S.J. Mot. at Ex. L, Meyer Dep. at 93; see id. at Ex. M, DuVal Dep. at 43-44; Pls.' Opp. to Leyman S.J. Mot. at Ex. F, 2008 Link Dep. at 54-55.) At the hearing, Penske claimed that, to its knowledge, this particular weld was not performed by a Penske employee.
The court notes that Penske personnel did not recall any instance of sending the trailer to Leyman for these repairs or replacement parts, so these welds cannot be attributed to Leyman. ( See Pls.' Opp. to Penske S.J. Mot. at Ex. I, Wodarczyk Dep. at 43-44.)
Of course, none of this general evidence establishes that Penske was specifically negligent in its maintenance or repair of the side lift gate's hinge barrels. Plaintiffs agreed at the hearing that there is no evidence Penske performed any maintenance or repairs on the hinge barrel in question. Indeed, as Penske points out, none of its employees charged with maintenance and repairs were aware of any problem with the hinge barrels prior to the accident, nor were they informed of the existence of the broken hinge barrel at issue here after Mr. Valerio returned it to Automatic Rolls; its whereabouts remain unknown. ( See, e.g., Pls.' Opp. to Penske S.J. Mot. at Ex. F, Zang Dep. at 11 (Penske's service manager claiming no awareness of any problems with welds on the side lift gates of Automatic Rolls trucks); id. at Ex. G, Bauer Dep. at 18 (Penske's lift gate mechanic claiming no awareness of any instance where a side lift gate bracket hinge had broken); id. at Ex. M, DuVal Dep. at 26 (Automatic Rolls corporate designee claiming no knowledge of any repairs that had to be done to the side lift gate in question).)
Moreover, it appears that Penske personnel would have had no reason to pay particular attention to side lift gate hinge barrels during its maintenance. Leyman's engineer testified that he had never heard of a hinge barrel breaking or coming loose prior to learning of this incident, and plaintiffs' expert admitted that he came upon no information in his review of the case indicating either that the gate's hinge barrels had malfunctioned before or that Penske had negligently repaired these barrels. ( Id. Ex. L, Meyer Dep. at 91; Pls.' Opp. to Leyman S.J. Mot. at Ex. F, 2008 Link Dep. at 70-72.) Plaintiffs also conceded at the hearing that no other incident of broken hinge barrels has been found. Thus, given the rarity of broken hinge barrels, plaintiffs cannot reasonably contend that Penske — by failing to discover and fix the allegedly defective hinge barrel here — was negligent in its maintenance and repair. See 16 Am.Jur. Proof of Facts 2d 207 ("Those under a duty to repair automobiles are not liable for their failure to discover latent defects in the automobile, unless the evidence shows that they attempted to discover such a defect and negligently failed to do so.").
It is true that Penske's mechanic in charge of lift gates, Heath Bauer, admitted that inspecting lift gate welds, including hinge barrel welds, was part of his maintenance routine. (Pls.' Opp. to Penske S.J. Mot. at Ex. G, Bauer Dep. at 19-20.) Mr. Bauer testified, however, that there was never a time when he inspected a hinge barrel weld and found it deficient ( id. at 20), and plaintiffs' own expert has never found fault with Penske's maintenance routine. ( See Pls.' Opp. to Leyman S.J. Mot. at Ex. D, 2007 Link Dep. at 102-03; id. at Ex. F, 2008 Link Dep. at 72.)
Furthermore, none of the above evidence shows that the allegedly negligent repairs to other portions of the side lift gate caused the right-hand hinge barrel to break, which in turn caused Mr. Valerio to be injured. Thus, even if Penske could be deemed to have been negligent in its maintenance and repair, plaintiffs have failed to show proximate causation. See Kettle v. R.J. Loock Co., 85 A.2d 459, 463 (Md. 1952) ("it is not enough for the plaintiff to prove that the negligence might perhaps have caused the failure of the [automotive part]"); cf. Lowenthal v. Backus Motor Co., 116 A. 834, 836 (Md. 1922) (finding evidence insufficient to make out the causation prong of a negligence claim against defendant motor company; "we are not at liberty to indulge in speculation either for or against the right of recovery").
Assuming arguendo that Penske's negligent repairs caused the right-hand hinge barrel to break, it is still entirely possible that its breaking would not have caused Mr. Valerio to have fallen, for instance if the front hand rails on the side lift gate had been in place that day, or if Mr. Valerio had not placed weight on the ramp until it was touching the ground.
Accordingly, given the absence of evidence of negligence in the maintenance and repair of the right-hand hinge barrel, and the absence of more than speculative evidence of causation, plaintiffs have failed to make out a prima facie case of negligent maintenance and repair against Penske. For all of these reasons, plaintiffs' negligence claims against Penske cannot be sustained.
Even assuming that such a case had been made out sufficiently, however, Mr. Valerio's contributory negligence, detailed above, would likely bar his recovery on these claims. Stanley Martin Cos., Inc., 396 F. Supp. 2d at 622.
Plaintiffs also raise a claim of loss of consortium. (Compl. ¶¶ 54-56.) This claim is derivative of Mr. Valerio's negligence claims. See Owens-Illinois, Inc. v. Cook, 872 A.2d 969, 981 (Md. 2005). Accordingly, because Mr. Valerio's claims against Leyman and Penske fail, his and Mrs. Valerio's loss of consortium claim must fail as well. See Dehn v. Edgecombe, 834 A.2d 146, 166 (Md. Ct. Spec. App. 2003).
CONCLUSION
For the foregoing reasons, defendants Leyman's and Penske's motions for summary judgment will be granted. A separate Order follows.ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:1. Defendant Penske Truck Leasing Company, L.P., Inc.'s motion for summary judgment (docket entry no. 76) is GRANTED;
2. Defendant Leyman Manufacturing Corporation's motion for summary judgment (docket entry no. 77) is GRANTED;
3. Judgment is entered in favor of defendants; and
4. The Clerk shall CLOSE this case.