Case Notes

Summary Judgment

Breach of warranty and design defect claims may survive summary judgment where the plaintiff establishes genuine issues of material fact. Dawson Farm, LLC v. BASF Corp., et al., Civil Action No. 06-0737, United States District Court for the Western District of Louisiana, Monroe Division, May 16, 2008.

In 2005, BASF marketed the herbicide Outlook to Louisiana sweet potato growers, including Dawson. The crops grown during the 2005 season were stunted and malformed. After the 2005 season, Outlook was no longer marketed for use on sweet potatoes. Dawson commenced an action against BASF for breach of warranty, negligence and negligent misrepresentation, inter alia. Dawson further alleged that BASF was liable under the Louisiana Unfair Trade Practices Act (“LUTPA”). The court granted BASF's motion for summary judgment on Dawson's claims of negligence, negligent misrepresentation and LUTPA because those claims were preempted by the Louisiana Product Liability Act and the Federal Insecticide, Fungicide and Rodenticide Act. It denied summary judgment as to Dawson's redhibition, breach of warranty and design defect claims, holding that there was a genuine issue of material fact whether Outlook was defective, whether BASF had reasonable knowledge of the defect and whether the risk of damage from Outlook outweighed its utility.

Second U.S. Circuit Ruling

The Second U.S. Circuit certifies a question to the state supreme court to settle strict liability. Jaramillo v. Weyerhauser Co., 07-0507-cv, 2nd Cir., Aug. 1, 2008.

A worker hurt in 2002 by a used Flexo Folder Gluer sought to hold Weyerhauser Inc., the machine's former owner, strictly liable. Weyerhauser claimed it sold only 19 of the machines in 25 years and argued that it could not be held strictly liable because it was a “casual” or “occasional” seller of the machines, not an “ordinary” or “regular” seller. The district court granted summary judgment to Weyerhauser, and the plaintiff appealed. The appellate court, discussing Sukljian v. Charles Ross & Son Co., certified to New York's Court of Appeals (state's highest court), the issue of whether Weyerhauser was a “regular seller” of the Flexo Folder Gluers and could, therefore, be held strictly liable under state law. Despite evidence that Weyerhauser had sold the machine “as is” to the worker's employer, there was also evidence Weyerhauser owned patents on technology used in the machine and had consulted with its manufacturer on safety issues and how to make safer “open architecture” machines such as that which injured the worker.

Summary Judgment

Breach of warranty and design defect claims may survive summary judgment where the plaintiff establishes genuine issues of material fact. Dawson Farm, LLC v. BASF Corp., et al., Civil Action No. 06-0737, United States District Court for the Western District of Louisiana, Monroe Division, May 16, 2008.

In 2005, BASF marketed the herbicide Outlook to Louisiana sweet potato growers, including Dawson. The crops grown during the 2005 season were stunted and malformed. After the 2005 season, Outlook was no longer marketed for use on sweet potatoes. Dawson commenced an action against BASF for breach of warranty, negligence and negligent misrepresentation, inter alia. Dawson further alleged that BASF was liable under the Louisiana Unfair Trade Practices Act (“LUTPA”). The court granted BASF's motion for summary judgment on Dawson's claims of negligence, negligent misrepresentation and LUTPA because those claims were preempted by the Louisiana Product Liability Act and the Federal Insecticide, Fungicide and Rodenticide Act. It denied summary judgment as to Dawson's redhibition, breach of warranty and design defect claims, holding that there was a genuine issue of material fact whether Outlook was defective, whether BASF had reasonable knowledge of the defect and whether the risk of damage from Outlook outweighed its utility.

Second U.S. Circuit Ruling

The Second U.S. Circuit certifies a question to the state supreme court to settle strict liability. Jaramillo v. Weyerhauser Co., 07-0507-cv, 2nd Cir., Aug. 1, 2008.

A worker hurt in 2002 by a used Flexo Folder Gluer sought to hold Weyerhauser Inc., the machine's former owner, strictly liable. Weyerhauser claimed it sold only 19 of the machines in 25 years and argued that it could not be held strictly liable because it was a “casual” or “occasional” seller of the machines, not an “ordinary” or “regular” seller. The district court granted summary judgment to Weyerhauser, and the plaintiff appealed. The appellate court, discussing Sukljian v. Charles Ross & Son Co., certified to New York's Court of Appeals (state's highest court), the issue of whether Weyerhauser was a “regular seller” of the Flexo Folder Gluers and could, therefore, be held strictly liable under state law. Despite evidence that Weyerhauser had sold the machine “as is” to the worker's employer, there was also evidence Weyerhauser owned patents on technology used in the machine and had consulted with its manufacturer on safety issues and how to make safer “open architecture” machines such as that which injured the worker.