PHILADELPHIA – Generac Power Systems and Lowe’s Home Improvement stores are attempting to strike and dismiss portions of a lawsuit from a man who suffered right index finger amputation and crush injuries from an allegedly malfunctioning portable generator.
Brenden Hires of Langhorne first filed suit in the Philadelphia County Court of Common Pleas on April 27, versus Generac Power Systems, Inc. of Waukesha, Wis., Lowe’s Home Centers, LLC of Mooresville, N.C. and John Does 1-5.
The case was then removed to the U.S. District Court for the Eastern District of Pennsylvania on May 21, due to diversity of citizenship between the parties.
According to Hires, he purchased the Generac power generator Model XT8000E at the defendant store in Middletown Township last November.
“On or about Nov. 21, 2019, plaintiff was at his home in Langhorne. The portable generator at issue was on the back of plaintiff’s truck. Plaintiff and plaintiff’s assistant attempted to move the portable generator at issue from the back of the truck when the portable generator began to drop,” the suit states.
“As the generator began to drop, due to the negligence and wrongdoing of defendants, and the defective condition of the aforementioned portable generator, suddenly and without warning, the handle caught on the vehicle and swung up and plaintiff experienced amputation and traumatic crush injury to the index finger of his right hand and further causing him to suffer severe and grievous injuries.”
The plaintiff claims the defendants violated the standards created in Tincher v. Omega Flex and the Second Restatement of Torts, by manufacturing, distributing and selling a defective product which caused the injuries as suffered by Hires.
UPDATE
On July 16, the defendants filed a motion to strike and dismiss portions of the plaintiff’s complaint, and in the alternative, motion for a more definite statement.
“In Paragraph 12 of plaintiff’s complaint, plaintiff alleges that an allegedly defective safety pin on the subject generator ‘was not safeguarded to prevent the handle from swinging up and creating a pinch hazard during transportation as required by code, statute and good safety engineering practice,” the motion read, in part.
“To the extent that this Court finds that such paragraphs should not be dismissed, a more definite statement by plaintiff is necessary to clarify what specific code, statute, or good engineering practices Generac failed to abide by.”
The defendant say the plaintiff alleges a product liability claim sounding in strict liability, related to defective design and/or manufacture of the product by “such other acts or omissions constituting negligence and/or gross negligence, or wanton conduct, as shall become evident during pretrial discovery and/or at the trial of this case” – and reiterates these allegations throughout the complaint.
The defendants labeled the paragraphs as “so vague and ambiguous that Generac, and all other defendants, cannot possibly properly respond to the allegations contained within said paragraphs”, and called for greater specificity on the part of the plaintiff.
“This specificity would enable Generac and Lowe’s to properly respond to the allegations contained in plaintiff’s complaint,” the motion stated.
For multiple counts of strict liability, negligence and breach of warranty against each individual defendant, the plaintiff is seeking damages in excess of $50,000, and also from each individual defendant, in addition to a trial by jury.
The plaintiff is represented by Brandon A. Swartz, Bryan Michael Ferris and Matthew J. McElvenny of Swartz Culleton, in Newtown.
The defendants are represented by Christopher G. Mavros and Theodore M. Schaer of Zarwin Baum DeVito Kaplan Schaer & Toddy, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-02399
Philadelphia County Court of Common Pleas case 200401341
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com