PHILADELPHIA – Generac Power Systems and Lowe’s Home Improvement have answered a lawsuit from a man whose right index finger was amputated in an incident with a home generator with dozens of affirmative defenses, seeking to invalidate it.
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 stated.
“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 claimed 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.
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.”
In an opposing response to the dismissal motion filed July 30, Hires said his complaint contained “sufficient factual matter” needed to meet the prerequisite of a plausible claim.
“Plaintiff’s complaint does, in fact, include sufficient factual matter so as to state valid plausible claimed upon which relief may be granted. Defendant has been put on notice that plaintiff was injured when attempting to move the subject generator from the back of his truck to the ground. When the generator began to fall, plaintiff attempted to grab the generator and his finger was caught in a pinch point in the negligently designed handle, thereby suffering a crush injury to his index finger,” the response motion stated.
UPDATE
Generac and Lowe’s filed an answer to Hires’s complaint on Oct. 13 (with a revised iteration the following day, Oct. 14), denying its assertions and bringing 43 separate affirmative defenses, including the following and others:
• Plaintiff’s complaint fails to state a cause of action against answering defendants;
• Plaintiff’s claims are barred because he was utilizing or was around or about the subject product in an abnormal way at or before the time of the alleged accident and such abnormal use was not reasonably foreseeable;
• To the extent that investigation and/or discovery reveals the same, plaintiffs claims are limited and/or barred in whole or in part by the terms and conditions of any and all warranties issued to or applying to plaintiff;
• Plaintiff’s claims against answering defendants are barred in whole or in part by the failure of plaintiff to mitigate his alleged damage;
• Plaintiff’s damages, if any, should be reduced as a result of plaintiff’s comparative and/or contributory negligence.
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