The opinion of the court was delivered by: Herndon, Chief Judge:
I. Introduction and Background
Pending before the Court is Wescon Products Company's motion for summary judgment (Doc. 95). Wescon Products Company ("Wescon") argues that it is entitled to summary judgment as the discovery reveals no evidence of an unreasonably dangerous and defective condition of the control cable at the time it left the control of Wescon which was a proximate cause of Smith's injury nor does it reveal any evidence of negligence on the part of Wescon which was a proximate cause of the injury; nor does the evidence support a cause of action for implied warranty. Wescon further argues that the discovery and evidence reveals that there was no knowledge on the part of Wescon concerning the manner in which the control cable was designed or protected when incorporated into the design of the one-ton asphalt roller. Wacker Neuson Corporation ("Wacker") opposes the motion (Doc. 100). Based on the following, the Court denies the motion for summary judgment.
Mark S. Smith Jr. sued Wacker for personal injuries he suffered while employed by Fontana Contracting Company ("Fontana"). While on the job, Smith was struck by a one-ton asphalt roller manufactured by Wacker, which contained a drive control cable designed and manufactured by third party defendant Wescon. Smith sued Wacker alleging, inter alia, that the design of the roller was unreasonably dangerous because it did not contain an automatic fail safe or emergency stop mechanism. Thereafter, Wacker filed third party actions against Fontana and Wescon. Smith settled with Fontana and Wacker and the Court issued Orders finding good faith settlements on August 29, 2011 and on October 13, 2011 (Docs. 83 & 89, respectively).
Wacker continues to pursue its third party claim for contribution against Wescon based upon strict liability, negligence, and implied indemnity. In addition to alleging that the Wescon-designed cable was defective, Wacker alleges that Wescon was negligent by failing to warn its users of the defective condition of the cables; failing to retrofit or correct known flaws in the cables; failing to adequately test the cable to ensure that they were "corrosion resistant" before advertising to the public that they were; failing to warn its customers that its cables could fail due to corrosion under normal , intended use; failing to provide any literature or instructions as to the limitations of the cables; and by representing that the cables would not corrode without obtaining test data to support that claim.
On October 8, 2008, plaintiff Mark Smith was injured in a road paving project when a Model RD11V asphalt roller designed, manufactured and distributed by Wacker struck him in the leg. The Model RD11V roller contained a "Series 40 Armor Core" push-pull cable designed, manufactured, sold and distributed by Wescon. That type of push-pull cable was designed by Wescon in the early 1990s. The purpose of the push-pull cable, generally, is to transfer a load from an input device, such as a lever on a Wacker roller, to an output device on a piece of equipment, normally the hydrostatic fluid pump on a Wacker roller. On the day of the accident, the Wescon
40 Series push-pull cable fractured and the Wacker roller ran into Smith. Wescon prepared and distributed a sales catalog to Wacker regarding the push-pull cable. In the catalog on page 3, Wescon, inter alia, made the following representations with respect to the 40 Series push-pull cable:
Wescon'a long-lay conduit construction incorporates multiple strands of oil-tempered carbon spring steel wires to withstand high tension and compression with minimum deflection under load while providing superior protection for the load carrying core;
The extraordinary life of the conduit in Wescon controls is due to its tough polyethylene covers;
These covers seal out environmental contaminants such as dirt and moisture, while resisting abrasion and common solvents; and Specifically formulated High Density Polyethylene liners (as well as special formulations for high temperature applications) minimize friction for maximum efficiency. The inside diameter is precisely controlled, minimizing lost motion and premature wear.
Further, the catalog states: Weson's Corrosion Resistant Design
All standard conduit fittings are plated steel. Guide tubes are nickel-plated brass. Rods are stainless steel for corrosion resistance. In addition, all bulk-packed Wescon cables are furnished with protective vinyl caps installed over threads to prevent damage during shipment and handling. Stainless steel conduit ...