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King v. Damiron Corporation

May 7, 1997

DAVID KING,

PLAINTIFF-APPELLANT,

v.

DAMIRON CORPORATION,

DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division.

No. 95 C 264 William C. Lee, Chief Judge.

Before COFFEY, MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge.

ARGUED FEBRUARY 11, 1997

DECIDED MAY 7, 1997

David King was injured when an axle from a used truck detached and collided with his car. King sued Damiron Corporation, the seller of the used truck, alleging strict liability for the damage caused by the apparent defect. The district court held that under Connecticut law a dealer of used goods is not strictly liable for defects in the products it sells. We affirm.

I.

While driving his car in Connecticut, David King was hit by a rear left tandem truck axle that had just detached from a semi-tractor driven by either Albert or Madeleine Morgan. The Morgans had three days earlier purchased the truck from Damiron Truck Center, located in Fremont, Indiana. Damiron had itself purchased the 1985 Kenworth tractor four days before selling it to the Morgans. When it purchased the truck, Damiron inspected it, took it for a test drive, and found it to be in satisfactory condition. At the time the Morgans purchased the truck "as is" from Damiron, Albert Morgan crawled under the truck, visually inspected it, and took it for a test drive.

According to the parties' experts, when the axle detached three days later, it did so for one of two reasons. Either there were two washers between the inner wheel bearing lock nut and outer wheel bearing lock nut (rather than one as originally designed by the manufacturer) or someone failed to properly install a locking washer. There is no evidence before the court that either Damiron or the Morgans knew of the defect, or that it could have been detected by a visual inspection.

King sued Damiron in the Northern District of Indiana under the court's diversity jurisdiction. See 28 U.S.C. sec. 1332(a)(1). King alleged breach of warranty, negligence, and, because Damiron was in the business of selling used trucks, strict liability in tort. The district court determined that Connecticut law governed King's claims, a determination that is not before us on appeal. The district court entered summary judgment for Damiron on all three theories of liability. King appeals only the strict liability claim. At issue is whether Connecticut recognizes or would recognize an action in strict product liability against a seller of used goods. The district court, having concluded that the issue had not yet been decided by Connecticut courts, set out to predict how the Supreme Court of Connecticut would decide the issue were it presented to it. See Smith v. Equitable Life Assur. Soc., 67 F.3d 611, 615 (7th Cir. 1995) ("Sitting in diversity, we . . . attempt[] to predict how the [state] Supreme Court would decide the issues presented here."). In a well-reasoned unpublished decision, the district court determined that the Connecticut court would not recognize a theory of strict product liability against a seller of used goods. Having reviewed the issue de novo, General Acc. Ins. Co. v. Gonzales, 86 F.3d 673, 675 (7th Cir. 1996), we affirm the district court and its reasoning.

II.

Connecticut's Products Liability Act consolidated "all claims or actions brought for personal injury . . . caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product . . . [including but not limited to], all actions based on the following theories: Strict liability in tort; negligence; breach of warranty . . . ." Conn. Gen. Stat. sec. 52-572m(b). The Act's purpose was not to create any new substantive rights but "to eliminate the complex pleading provided at common law." Lynn v. Haybuster Manufacturing, Inc., 627 A.2d 1288, 1293 (Conn. 1993). "Since the [Act] was not meant to eliminate common-law substantive rights but does not itself spell out the elements of the types of claims it consolidates . . . the district court [should] assess plaintiffs' theories of recovery in light of the Connecticut common law requirements." LaMontagne v. E.I. DuPont De Nemours & Co., Inc., 41 F.3d 846, 856 (2nd Cir. 1994).

Connecticut has adopted the Restatement (Second) of Torts principles establishing strict liability in tort. "In order to recover under the doctrine of strict liability in tort the plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale and (5) the product was expected to and did reach the consumer without substantial change in condition." Giglio v. Connecticut Light & Power Co., 429 A.2d 486, 488 (Conn. 1980) (citing Restatement (Second) of Torts sec. 402 A (1965)).

Although Connecticut has adopted strict liability in tort for manufacturers or distributors of new products, it has not done so for distributors of used products. King attempts to convince us otherwise, citing Rossignol v. Danbury School of Aeronautics, Inc., 227 A.2d 418 (Conn. 1967), and Nicholas v. Coppola Motors, Inc., 422 A.2d 260 (Conn. 1979). Neither persuades us. Rossignol addressed whether the original manufacturer of an exhaust valve and the original manufacturer of an engine incorporating that exhaust valve could be held strictly liable where the aircraft in which the engine was installed had passed through numerous owners. The court noted that strict liability requires that the product reach the consumer without substantial change; this would have great significance where the product eventually became part of a "used, secondhand machine." 227 A.2d at 424. In so observing, the court neither stated nor suggested that strict liability now attached to sellers of those "used, secondhand machine[s]." In fact, the intermediate owners and sellers of the aircraft were not defendants in Rossignol and the case had nothing to do with strict product liability for the sellers of used goods. In Nicholas, strict liability ...


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