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King v. Pierce Manufacturing, Inc.

United States District Court, D. Massachusetts

September 2, 2014

JOSEPH T. KING, Administrator for the Estate of GERTRUDE KING


RICHARD G. STEARNS, District Judge.

On July 26, 2010, while walking on Western Avenue in Cambridge, Massachusetts, Gertrude King was struck by the nozzle of a hose that had come loose from a passing fire truck. She died two days later from her injuries. The administrator of her estate, Joseph King, brought this lawsuit against Pierce Manufacturing, Inc. (Pierce), the manufacturer of the fire truck, alleging that the truck was defective because it was not equipped with a net restraint that could have prevented the escape of the hose from the bed of the truck. The Complaint is framed on Counts of breach of implied warranty (Count I), negligent design (Count II), wrongful death (Count III), and a prayer for punitive damages (Count IV).

Pierce moves for summary judgment, arguing that without the aid of expert testimony (King has offered none), a jury would be unable to assess whether the hose-storage design of the truck failed to meet reasonable safety standards in 2002 (when the truck was built), or whether the accident more likely resulted from the mishandling of the hose by the firefighters who manned the truck. Because the court agrees with Pierce, it will be granted summary judgment.


Pierce, a wholly-owned subsidiary of the Oshkosh Corporation, (Oshkosh) builds trucks for fire departments throughout the United States. Pierce manufactures between 1, 500 and 2, 000 fire trucks yearly, each of which is a custom order. After a fire department makes its choices from among the "hundreds of thousands of features" that Pierce offers (Pierce also accommodates customers' unique requests) and agrees to the price, Pierce assembles the truck. Def's Statement of Facts (SOF) ¶ 9. It is left to the fire department to determine the length and width of the hose storage area, the hose capacity, the bed covers, the hose dividers and their shape, and its preferred material of the hose. The average life of a Pierce-built fire truck is thirty years.

In 2002, Pierce built the truck (Engine 2) for CFD that is at issue in this case for an ultimate price of $269, 957. The CFD's specifications for Engine 2 included two crosslay hose beds with 1.50"outlets, one crosslay hose bed with a 2.5"outlet, with a crosslay cover installed over each of the hose beds. The crosslay cover is intended to secure the hoses in the beds and protect them from weather. Pierce offered redundant hose restraints as an accessory in 2002. However, the CFD did not order a hose restraint for Engine 2 (or any other truck). Nor did it purchase the hose for Engine 2 from Pierce.

Roger Lackore is the Director of Product Safety at Oshkosh. Prior to his employment at Oshkosh, Lackore spent 18 years as a mechanical engineer "involved in fire apparatus design and safety" at Pierce. Lacklore Dep. at 5. Lackore has been a member of the National Fire Protection Association (NFPA) Standard 1901 Committee since the mid-1990s, serving for much of the time as Pierce's alternate or full voting member.[1]

In 2002, when Engine 2 was manufactured by Pierce for the CFD, NFPA Standard 1901 neither required nor recommended that fire trucks be equipped with redundant hose restraints. However, in May of 2005, Lackore learned of an accident involving the Coraopolis (Pennsylvania) Fire Department in which a young girl had been killed by a dislodged fire truck hose. Lackore proposed that NFPA Standard 1901 be amended to recommend hose restraints. The gist of Lackore's proposal emerged from the Standard 1901 Committee as a Tentative Interim Amendment (TIA). The TIA was approved by the NFPA's governing board on November 15, 2005, and in its final form, required that all newly manufactured fire trucks be equipped with some type of hose restraint. The TIA did not require any recalls or retrofits of older fire trucks. Pierce did not notify the CFD (or any other of its pre-TIA customers) of the modification of Standard 1901.

Ariel Rodriguez was the senior firefighter and acting lieutenant assigned to Engine 2 on the day of the accident. He recalls responding to a call regarding a water emergency on Franklin Street in Cambridge between 10 a.m. and 11 a.m. on January 26, 2010. As it left the firehouse, Engine 2 made a left turn onto Massachusetts Avenue, traveled approximately 1, 000 feet, and then made a second left on Western Avenue. While in the midst of the turn, a hose came loose from the left side of the truck (the hose is 1-" in diameter and 200' long). Guenther Aff., Ex. 2 at 5. The loose hose became entangled with the wheels of a following vehicle. Id. It snapped and whipsawed, with the brass hose nozzle striking Gertrude King. Aware that something was amiss, the driver of Engine 2 brought it to a stop at the corner of Western Avenue and Green Street. Rodriguez stepped off the truck and saw the hose spewed out behind. He asked two of his firefighters to reel the hose back into the truck. A passing UPS driver told Rodriguez that a pedestrian had been injured at the Western Avenue intersection. When Rodriguez reached the scene, he saw Gertrude King lying on the ground, bleeding profusely. She was taken to a local hospital where she underwent emergency surgery for blunt trauma to her lower extremities, but she died two days later.

After the death of Gertrude King, Pierce filled an order by the CFD for nylon netting restraints to be installed on its fire trucks. The cost to equip each truck was approximately $524. Pierce has been in the business of building fire trucks since 1914. Gertrude King's death was the first accident of its kind encountered by Pierce with one of its trucks. After this Complaint was filed, Pierce retained Dr. Dennis Guenther, a professor of Mechanical Engineering at Ohio State University and a project engineer at SEA, Ltd., a forensic engineering firm in Columbus, Ohio, to inspect Engine 2. After examining the truck in October of 2013, Guenther concluded that the truck "was not defective or unreasonably dangerous and... [that] Pierce [had] followed a reasonable and good standard of care in [its] manufacture and design [of the truck]." Dkt.#22 - Ex. L ¶¶ b-c. Dr. Guenther further opined that the hose had been dislodged from off the left side of Engine 2 "against the normal direction of the centripetal acceleration of the truck making the left turn." Dkt. #22 - Ex. L at 5. He ultimately concluded that "the cause of the accident was an improperly stowed hose in the cross lay hose compartments before the fire truck left the Cambridge Fire Department." Id.


"Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law based on the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits." Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008), citing Fed.R.Civ.P. 56(c). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party." Id., quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) (internal quotation marks omitted). "A fact is material if it has the potential of determining the outcome of the litigation." Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008). To defeat a motion for summary judgment, evidence offered by the non-movant "must be significantly probative of specific facts." Perez v. Volvo Car Corp., 247 F.3d 303, 317 (1st Cir. 2001), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

Implied warranty/negligent design[2]

To establish a breach of the implied warranty of merchantability under Mass. Gen. Laws ch. 106, § 2-314, a plaintiff bears the burden of proving "a defect in the product or an unreasonably dangerous condition which existed at the time the product left the [manufacturer's] control." Enrich v. Windmere Corp., 416 Mass. 83, 89 (1993), citing Colter v. Barber-Greene Co., 403 Mass. 50, 62 (1988). The focus, in other words, is on the conduct of the manufacturer. Warranty liability - a form of strict liability - stands on a different footing. Its focus is on the integrity of the product itself and whether it is unreasonably dangerous regardless of any negligence on the part of the manufacturer. Id. at 61-62; Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 355 (1983). "A defendant in a products liability case in the Commonwealth may be found to have breached its warranty of merchantability without having been negligent, but the reverse is not true. ...

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