United States District Court, N.D. Alabama, Eastern Division
GLORIA RODGERS, as Administrator of the Estate of John Rodgers, Plaintiff,
AWB INDUSTRIES INC., d/b/a Aircraft Tool Supply Company, a corporation, Defendant.
MEMORANDUM OPINION AND ORDER
ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendant AWB Industries,
Inc.'s (“AWB”) amended and renewed motion for
summary judgment. (Doc. 88).
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).
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.
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.
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).
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.
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).
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).
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).
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.
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
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).
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.
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 ...