Rodgers v. AWB Industries Inc.

          MEMORANDUM OPINION AND ORDER

          ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE

         This matter comes before the court on Defendant AWB Industries, Inc.'s (“AWB”) amended and renewed motion for summary judgment. (Doc. 88).

         This case arises from the death of John Rodgers after being struck in the head by an aircraft propeller while preparing to perform a test on the cylinder of a plane. His widow, Ms. Rodgers, filed suit against the manufacturer of a tool Mr. Rodgers was using that day, alleging a violation of the Alabama Extended Manufacturer's Liability Doctrine (“AEMLD”), breach of warranty, and negligence or wantonness. (Doc. 13).

         The court GRANTS IN PART and DENIES IN PART the motion for summary judgment. The court DENIES the motion with respect to the AELMD and negligence claims because a jury must decide AWB's affirmative defenses of contributory negligence, assumption of the risk, and product misuse. The court DENIES the motion with respect to Ms. Rodgers' claim that AWB breached the implied warranty of merchantability because a jury must decide whether the product was fit for its ordinary purpose. But to the extent Ms. Rodgers intended to raise a claim that AWB breached the implied warranty of fitness for a particular purpose, she has not presented any evidence to show the existence of that warranty, so the court GRANTS the motion for summary judgment on that claim. Finally, the court GRANTS the motion for summary judgment on Ms. Rodgers' claim of wanton failure to warn because she has not presented any evidence that AWB was on notice of a risk of injury from its product, but the court DENIES the motion as to her other wantonness claims because AWB's arguments in support of summary judgment do not establish as a matter of law that it did not wantonly design, manufacture, or market the Tester.

         I. BACKGROUND FACTS

         As the court will set out in more detail below, this case has already been before the Eleventh Circuit Court of Appeals once, and that Court described the facts relevant to that appeal in the light most favorable to Ms. Rodgers. (See Doc. 89). Under the law of the case doctrine, “findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.” Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir. 1990). The court notes that the law of the case doctrine does not apply where “substantially different evidence is produced” because “[w]hen the record changes . . . the evidence and the inferences that may be drawn from it change.” Jackson v. State of Ala. State Tenure Comm'n, 405 F.3d 1276, 1283 (11th Cir. 2005).

         The record in this case has not changed; AWB's amended and renewed motion for summary judgment depends on exactly the same evidence as its initial motion for summary judgment. Thus, at this stage the court will follow the Eleventh Circuit's description of the facts, except where necessary to fill in any gaps that the Court may not have addressed because those facts were not relevant to the issues before the Court. The court further notes that the Eleventh Circuit's description of the facts will cease to be binding if and when the record changes-such as at trial. See Id. at 1283-84 (collecting cases).

         Mr. Rodgers “was an experienced pilot and aircraft mechanic.” (Doc. 89 at 6). On July 19, 2012, he was working as a self-employed airplane mechanic at Anniston Regional Airport. (Id.). That day, he was performing a “differential pressure test” on the cylinders of an airplane using a product manufactured by AWB called the Model 2E-M Differential Pressure Tester (the “Tester”). (Id. at 3). The Tester is the product at issue in this case.

         A differential pressure test requires a mechanic to introduce compressed air into an airplane's cylinder-which is located behind the plane's propeller-to measure the cylinder's “air leakage rate.” (Doc. 89 at 3, 5). Mr. Rodgers was using several tools to perform the differential pressure test: a compressed air hose, a compression tester extension (the “Extender”), and the Tester. (See Id. at 6-8). The compressed air hose releases unregulated compressed air. (Id. at 3). The Tester performs two functions: it regulates and measures the amount of compressed air passing through it into the airplane cylinder. (Id. at 3-4). The Extender's sole function is to connect the Tester to the airplane's cylinder. (Id. at 4).

         According to the Tester's instructions, to perform the differential pressure test, a mechanic should take the following steps in order: (1) remove one spark plug from one cylinder; (2) rotate the plane's propeller until the piston of the cylinder begins its compression stroke, so that the propeller will not move even after air is introduced to the cylinder; (3) connect the Extender to the spark plug hole; (4) connect the Tester to the Extender, making sure that the Tester is not yet allowing air through to the cylinder yet; (5) connect the compressed air hose to the Tester; (6) adjust the Tester to allow about ten to twenty pounds per square inch (“psi”) of compressed air through to the cylinder; (7) rotate the propeller until the piston is in the “top dead center” location; (8) adjust the Tester to allow eighty psi of compressed air through; and (9) compare the amount of compressed air flowing into the cylinder to the amount the cylinder maintains, revealing the air leakage rate. (Doc. 89 at 3, 5-6 & n.2). At the eighth step-increasing the amount of compressed air flowing through the Tester to the cylinder-the Tester's instructions state: “NOTE: At this stage, enough pressure will build up in the cylinder to force the piston down from the [top dead center] position; therefore it is recommended that someone hold the [propeller] to prevent rotation.” (Id. at 6).

         In order to connect the compressed air hose to the Tester, and the Tester to the Extender, each tool has couplings, which is “the part of one tool that connects to another tool.” (Doc. 89 at 3-4 & n.1). The compressed air hose has a “standard ¼-inch female coupling, ” which connects to the Tester's “standard ¼-inch male compressed air coupling.” (Id. at 3). The Tester also has an “output hose” that connects to the Extender. (Id. at 3-4). The Tester's output hose has a ¼-inch female coupling, and the Extender has a ¼-inch male coupling. (Id. at 4).

         In summary, the mechanic should plug the Extender into the airplane cylinder, then connect the Tester to the Extender, then the compressed air hose to the Tester, in that order. The compressed air hose should not be connected directly to the Extender because that would introduce unregulated compressed air directly to the cylinder, which could cause the propeller to rotate. But because all of the couplings that connect these tools are the same size, it is possible to connect the compressed air hose's ¼-inch female coupling to the Extender's ¼-inch male coupling, bypassing the Tester completely and allowing unregulated compressed air into the cylinder.

         Taking the facts in the light most favorable to Ms. Rodgers, it appears that is what happened on July 19, 2012, when Mr. Rodgers was conducting a differential pressure test on an airplane. Two witnesses-Scott Wallace and Rodney Findley- helped Mr. Rodgers push the airplane into a hangar, at which point Mr. Rodgers “voiced frustration and told Wallace and Findley that he needed to perform a compression test on the engine for the third time.” (Doc. 89 at 6). Using the Tester, Mr. Rodgers performed compression tests on the two cylinders on the right side of the engine (from the perspective of a pilot in the cockpit). (Id. at 7 & n.4).

         Mr. Rodgers then pushed the compressed air hose under the airplane and walked around to the left side and began to “hook up and get everything ready for the compression check[.]” (Doc. 89 at 7) (alteration in original). Neither Mr. Wallace nor Mr. Findley saw what happened next, but “[a]ll of a sudden, the propeller rotated quickly and forcefully, ” striking Mr. Rodgers on the left side of his head and chest. (Id. at 7-8). Mr. Rodgers fell to the ground, unresponsive, and was taken to the hospital with an open skull fracture, where he died several days later. (Id. at 8).

         Afterward, the Extender was discovered connected to the left-front cylinder. (Doc. 89 at 8). The Tester, not connected to anything, was sitting on top of the left side of the engine. (Id.). The compressed air hose was lying on the floor next to the left side of the engine. (Id.). From this evidence, a jury could reasonably infer that Mr. Rodgers, “having stated he was performing a compression test and set up to perform such a test, accidentally inserted air into the cylinder in an attempt to perform the compression test.” (Id. at 16). In other words, a jury could reasonably infer that Mr. Rodgers accidentally connected the compressed air hose directly to the Extender-and through it the cylinder-instead of first connecting the Tester to the Extender and then connecting the compressed air hose to the Tester.

         In addition to the evidence surrounding the accident itself, Ms. Rodgers presented evidence about the design of the Tester and a potential alternative design that she says could have prevented this accident. Specifically, she proposed a design in which the part of the Tester that connects to the Extender would be ¾ of an inch instead of ¼ of an inch. (Doc. 89 at 10). This change would in turn require the Extender's ¼-inch coupling to be increased to ¾ of an inch. (Id.). If the Extender had a ¾-inch coupling, a person could not ...