USCA1 Opinion
[NOT FOR PUBLICATION]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1459
JAY DOOLEY,
Plaintiff, Appellant,
v.
PARKER-HANNIFIN CORPORATION, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Amato A. DeLuca with whom Mandell, DeLuca & Schwartz, Ltd.
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was on brief for appellant.
Raymond A. LaFazia with whom Kevin S. Cotter and Gunning,
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LaFazia & Gnys, Inc. were on brief for appellees.
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October 21, 1993
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Per Curiam. In this appeal, plaintiff-appellant
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Jay Dooley claims that the district court erred in granting
defendant-appellee Parker-Hannifin Corporation ("Parker-
Hannifin")1 summary judgment on the issues of negligence,
breach of warranty and strict liability. Finding no error,
we affirm.
I.
I.
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Standard of Review
Standard of Review
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Our review of summary judgment decisions is de
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novo, reading the record in the light most favorable to the
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non-moving party. See, e.g., Rivera-Marcano v. Normeat Royal
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Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)(citing
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August v. Offices Unlimited, Inc., 981 F.2d 576, 580 (1st
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Cir. 1992)). Summary judgment is appropriate only when
"there is no genuine issue as to any material fact" based
upon the pleadings, depositions, and affidavits, and where
"the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c). In determining whether a fact
is material, a court must consider whether it has the
"potential to affect the outcome of the suit under applicable
law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703
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(1st Cir. 1993). While we will "indulge all reasonable
inferences" in the nonmovant's favor, Santiago v. Sherwin
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1. References to Parker-Hannifin apply equally to all named
appellees.
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Williams Co., No. 92-2263, slip op. at 8 (1st Cir. Sept. 10,
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1993), we will not consider "`conclusory allegations,
improbable inferences, and unsupported speculation.'" Dow v.
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United Bhd. of Carpenters and Joiners, 1 F.3d 56, 58 (1st
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Cir. 1993)(quoting Medina-Munoz v. R.J. Reynolds Tobacco Co.,
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896 F.2d 5, 8 (1st Cir. 1990)).
II.
II.
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Factual Background and Prior Proceedings
Factual Background and Prior Proceedings
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Parker-Hannifin is a supplier, inter alia, of
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aeronautics parts to the United States Government. Prior to
1986, Parker-Hannifin contracted with American Tube Bending
Co. ("ATB") for tubing to be processed and delivered to
Parker-Hannifin in accordance with government-issued
specifications. ATB, or some entity acting under its
direction, designed and manufactured2 a holding die which
fit into a hydraulic press machine owned by ATB. This die
was used to bend and form the tubing in accordance with the
government specifications. In 1986, Tubodyne Company
acquired this holding die,3 as well as ATB's press machine
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2. There is no evidence regarding who manufactured or
designed the original die. It is conceded, however, that the
work was performed either by ATB or at ATB's direction, and
not by Parker-Hannifin.
3. Dooley contends that the die is owned by Parker-Hannifin.
Although there is ample evidence in the record to show that
Tubodyne passes both its cost of producing the dies and
ownership on to its customers, there is no evidence that ATB
had the same practice. Parker-Hannifin denies ownership and
offers in evidence the fact that it never listed the die as
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when ATB sold Tubodyne its assets and customer lists.
Parker-Hannifin subsequently became a customer of Tubodyne.
By 1988, due to normal wear and tear, the holding
die was not gripping the metal tubing effectively. Tubodyne
informed Parker-Hannifin of the problem and a representative
of Parker-Hannifin observed the worn die. Parker-Hannifin
then allegedly approved an extension to the die which was
supposed to result in a better grip of the material to be
formed.4 Parker-Hannifin did not have any part in the design
or manufacture of the actual extension.5 Viewed in the
light most favorable to the plaintiff, the evidence shows
that Parker-Hannifin approved Tubodyne's plan 1) to alter the
die as Tubodyne saw fit; and 2) to pass the cost on to
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an asset of the company. We need not solve this controversy,
however, since we do not find ownership to be a material fact
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in this dispute.
4. There is no direct evidence of this approval. The only
evidence on record is Dooley's contention that the president
of Tubodyne, Norman MacLeod, Jr., told Dooley that Parker-
Hannifin's approval was necessary before he could add an
extension, and the deposition testimony of Tubodyne's general
manager, Jeanie Juckett, who stated that although she did not
remember any specific conversation with Parker-Hannifin, she
"assumed that they gave their blessing since we did put the
extensions [sic] on."
5. Dooley argues that Parker-Hannifin's approval of the idea
of an extension, without more, amounts to its having "played
a significant role in the design and manufacture of the
extension." While we must recount the facts in the light
most favorable to the nonmoving party, we are not compelled
to credit conclusory allegations unsupported by the record.
See Dow, 1 F.3d at 58.
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Parker-Hannifin.6 Tubodyne, or some entity under its
direction, then designed and manufactured the extension.7
On June 30, 1988, Jay Dooley, an experienced
Tubodyne employee, was assigned to form aircraft exhaust duct
tubing for Parker-Hannifin. After attaching the die with the
newly designed extension to the press machine, he became
concerned that the extension and the machine created a
potentially dangerous pinch point. Although Dooley
complained to Tubodyne management about the possible risk of
injury, he nevertheless operated the machine and crushed his
thumb between the extension and the press machine.
In June of 1991, Dooley commenced a diversity
action against Parker-Hannifin, alleging negligence, breach
of implied and express warranties and strict tort liability.
Parker-Hannifin subsequently filed a motion for summary
judgment which the district court granted. The district
court found that Parker-Hannifin was not negligent because it
did not owe a duty to Dooley, and was not liable under
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6. However, once again, there is no direct evidence to show
that Tubodyne ever charged Parker-Hannifin for the extension.
Although Juckett and MacLeod stated in their depositions that
it is their usual practice to charge for such modifications,
the plaintiff was not able to produce an invoice charging
Parker-Hannifin for the extension.
7. Neither MacLeod nor Juckett could remember if the
extension was manufactured in-house or outside, at Tubodyne's
direction.
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warranty or strict liability theories because Parker Hannifin
was not the seller of the die or its extension. Dooley now
appeals from that final judgment.
III.
III.
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Discussion
Discussion
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Dooley argues on appeal that the district court
applied the wrong standard in determining whether Parker-
Hannifin owed him a duty of due care. More specifically,
Dooley claims that Parker-Hannifin was negligent by failing
to ensure that the die and extension were safe for their
intended use. He asserts that this duty stems from the fact
that: (1) Parker-Hannifin allegedly owned the die and the
extension; (2) an agent of Parker-Hannifin allegedly observed
the die malfunction before the extension was added; and (3)
an agent of Parker-Hannifin allegedly approved the addition
of the extension. Dooley further argues that the district
court erred in finding that no issue of material fact exists
on the issues of breach of warranty and strict liability. We
address each argument in turn.
A. Negligence
A. Negligence
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In order to make out a viable negligence claim
under Rhode Island law,8 one must first establish, as a
matter of law, that a duty exists. See Banks v. Bowen's
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8. The parties do not dispute that Rhode Island law applies
in this diversity action.
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Landing Corp., 522 A.2d 1222, 1224 (R.I. 1987)(citing Barratt
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v. Burlingham, 492 A.2d 1219, 1220 (R.I. 1985)); Welsh Mfg.,
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Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436, 440
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(R.I. 1984). The Rhode Island Supreme Court has stated:
In considering whether a duty exists,
among the factors considered are (1) the
foreseeability of harm to the plaintiff,
(2) the degree of certainty that the
plaintiff suffered an injury, (3) the
closeness of connection between the
defendant's conduct and the injury
suffered, (4) the policy of preventing
future harm, and (5) the extent of the
burden to the defendant and the
consequences to the community for
imposing a duty to exercise care with
resulting liability for breach.
Banks, 522 A.2d at 1225.9 In light of these factors and the
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9. Dooley argues that the standard announced in Banks is
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"inapposite to the present matter." In so doing, he cites a
line of cases delineating duties owed by manufacturers,
designers, sellers, suppliers and lessors of goods. Because
Parker-Hannifin does not fit into any of these categories, we
find these cases, rather than Banks, to be inapposite.
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Dooley also urges us to apply Barron v. Honeywell, Inc.,
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69 F.R.D. 390 (E.D. Pa. 1975) and to reverse the district
court on this basis. Even if we were to find Barron, which
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applied Pennsylvania law, to be persuasive authority, it is
clearly distinguishable from the instant matter. In denying
a motion for summary judgment, the court in Barron found that
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the defendant, the owner of a defective plastics machine, had
leased the machine to a plastics manufacturer. The court
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further noted that the defendant, who also bought plastic
parts from the lessee, had required the manufacturer to use
the malfunctioning machine to produce his parts even though
the defendant had observed the machine malfunction on at
least two separate occasions. Id. at 392. The present
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situation, however, is very different. There is no evidence
that an agent of Parker-Hannifin ever saw the extension on or
off the machine. Dooley points to his own deposition for
support of the proposition that an agent saw the die
malfunction before the extension was added. However, there
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is no allegation that the die was dangerous before the
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record evidence, we agree with the district court that
Parker-Hannifin, which did not design, manufacture, sell or
control the die extension, owed no duty to Dooley.
As noted earlier, Parker-Hannifin's only
connections to Dooley's injury10 were its approval and
alleged ownership of the die extension. We find neither
factor sufficient to support a duty for negligence purposes
in this case. Parker-Hannifin never possessed or controlled
the extension that Tubodyne, Dooley's employer, designed to
fit its own press machine. It is not alleged that Parker-
Hannifin ever saw the extension or knew how it would fit or
operate in Tubodyne's machinery. Accordingly, we do not find
that the injury to Dooley was a foreseeable consequence of
any action on the part of Parker-Hannifin.11
Nor do we find a close connection between Parker-
Hannifin's approval of the extension and Dooley's injury.
Several factors, such as Tubodyne's design of the extension,
Dooley's prior knowledge of the potentially dangerous
condition, and Tubodyne's insistence that Dooley operate the
machine despite Dooley's perception of the inherent danger,
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extension was added. Thus, if the agent saw anything, it was
only that the die did not properly grip the metal. Dooley
does not argue, nor could he on the record before us, that
the malfunction that the agent allegedly saw was the
proximate cause of his injury.
10. Neither party disputes the actuality of Dooley's injury.
11. See generally supra note 9.
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intervened and served to distance an already remote
relationship. See Banks, 522 A.2d at 1225.
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Finally, we do not believe that imposing a duty
upon Parker-Hannifin, on this record, could possibly further
a policy of preventing future harm. On the contrary, as
aptly noted by the district court, holding Parker-Hannifin
responsible for protecting employees it did not employ from
risks of injury associated with the use of machines it did
not design, manufacture, sell or control would be
"unreasonable and would impose a substantial burden on
Parker-Hannifin without any commensurate decrease in the risk
of future injuries." Dooley v. Parker-Hannifin Corp., 817
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F. Supp. 245, 247 (D.R.I. 1993). By their own admissions,
before any injury occurred, both Dooley and Tubodyne were
aware of the potentially dangerous condition created by the
interaction between the extension Tubodyne designed and their
machine which Dooley operated. They were in a position to
prevent this injury. Parker-Hannifin was not.
Accordingly, we find no duty and affirm the
district court's finding that Parker-Hannifin was not
negligent.
B. Breach of Warranty
B. Breach of Warranty
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Although Rhode Island has a significant body of law
regarding warranties, that law deals exclusively with
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warranties made by "sellers."12 Here, Dooley concedes that
Parker-Hannifin is not the seller of the die or its
extension. Nonetheless, he urges this court to expand Rhode
Island law and find that Parker-Hannifin, though a non-
seller, had extended a warranty to the plaintiff. Leaving
aside the merits of plaintiff's highly dubious proposition,
we reiterate that "a plaintiff who `selects a federal forum
in preference to an available state forum may not expect the
federal court to steer state law into unprecedented
configurations.'" Santiago, No. 92-2263, slip op. at 9
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(quoting Martel v. Stafford, 992 F.2d 1244, 1247 (1st Cir.
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1993)). Here, the reading Dooley seeks would, to say the
least, be a significant expansion of state law. Accordingly,
we affirm the district court's grant of summary judgment on
this issue.
C. Strict Liability
C. Strict Liability
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Appellant's strict liability claim is equally
meritless. In Rhode Island, strict liability applies to
"[o]ne who sells any product in a defective condition."
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Restatement (Second) Torts, 402A (1965)(emphasis supplied);
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12. Under Rhode Island law, there is a warranty of
merchantability implied in contracts where the "seller" is a
merchant with respect to goods of the type sold. R.I. Gen.
Laws 6A-2-314 (1992). Express or implied warranties may
arise when a "seller" makes representations about a product.
R.I. Gen. Laws 6A-2-313 (1992). Finally a "seller" may be
held liable for personal injuries which are the proximate
result of a breach of warranty. R.I. Gen. Laws 6A-2-
715(2)(b)(1992).
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see also Ritter v. Narragansett Elec. Co., 283 A.2d 255
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(1971) (adopting Restatement (Second) Torts, 402A). Here,
as has been noted, Parker-Hannifin is not a seller of dies or
extensions. Thus, there is no basis under Rhode Island law
for holding it liable in strict liability.
IV.
IV.
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Conclusion
Conclusion
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For the reasons set forth above, we affirm the
district court's grant of summary judgment.
Affirmed.
Affirmed.
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