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Daniels v. The Carter-Jones Lumber Co.

United States District Court, D. Maryland

May 23, 2018

CLARA DANIELS, et al. Plaintiffs,


          Ellen Lipton Hollander United States District Judge

         In this tort litigation, Clara and Robert Daniels, plaintiffs, filed suit against The Carter-Jones Lumber Company, d/b/a Carter Lumber Company (“Carter Lumber”), and E3 Holdings, LLC, d/b/a EnerLux Windows and Doors (“EnerLux”), defendants. See ECF 26 (“Amended Complaint”). Plaintiffs allege that, due to the negligence of EnerLux and Carter Lumber, Ms. Daniels sustained serious injuries on April 11, 2014, when custom windows that she had been inspecting while on the delivery truck fell on her. Id.[1] In addition, plaintiffs assert a claim for loss of consortium. Id. And, as to Carter Lumber, plaintiffs allege a claim of negligent supervision. Id.

         Both defendants have moved for summary judgment, supported by memoranda of law and exhibits. See ECF 50 (EnerLux's motion); ECF 50-1 (EnerLux's memorandum of law) (collectively, the “EnerLux Motion”); ECF 50-2 through ECF 50-7 (EnerLux's exhibits); ECF 51 (Carter Lumber's motion); ECF 51-1 (Carter Lumber's memorandum of law) (collectively, the “Carter Lumber Motion”); ECF 51-2 and ECF 51-3 (Carter Lumber's exhibits). Plaintiffs oppose both motions and have submitted exhibits. See ECF 54 (opposition to the EnerLux Motion); ECF 54-1 (memorandum of law) (collectively, “Opposition - EnerLux”); ECF 54-2 through ECF 54-6 (exhibits); ECF 56 (opposition to the Carter Lumber Motion); ECF 56-1 (memorandum of law) (collectively, “Opposition - Carter Lumber”); ECF 56-2 through ECF 56-6 (exhibits). EnerLux has replied. See ECF 61. Carter Lumber has not filed a reply, and the time to do so has expired. See Local Rule 105.2.a.

         No hearing is necessary to resolve the summary judgment motions. See Local Rule 105.6. For the reasons that follow, I shall deny both motions.

         I. Factual and Procedural Background[2]

         Clara and Robert Daniels are citizens of West Virginia. ECF 26, ¶¶ 2, 4-5. EnerLux is a manufacturer of windows, with its principal place of business in Nebraska. Id. ¶ 6. Carter Lumber is a “building supply company, ” incorporated in Maryland, with its principal place of business in Ohio. Id. ¶ 10. Jurisdiction is founded on diversity of citizenship. See 28 U.S.C. § 1332.

         At the relevant time, plaintiffs were building a retirement home in Falling Waters, West Virginia. ECF 54-4 (Deposition of Mr. Daniels) at 3, p. 6.[3] In 2014, in connection with the construction of the home, plaintiffs purchased more than eighty custom windows and doors from EnerLux, at a cost in excess of $50, 000. Id.; ECF 54-3 (Deposition of Ms. Daniels) at 12, p. 42; id. at 23, p. 86; ECF 26, ¶ 16.

         Plaintiffs' builder, Thomas Sandretzky, arranged for EnerLux to deliver the windows and doors to the premises of Carter Lumber in Williamsport, Maryland. ECF 54-4 at 3, pp. 6-7; ECF 54-3 at 7, p. 23; ECF 26, ¶¶ 17, 18.

         Paul Vonderfecht founded EnerLux in 2008. See ECF 54-2 (Deposition of Paul Vonderfecht) at 2, p. 5. Prior to forming EnerLux, Vonderfecht worked as a contractor engaged in the installation of windows and doors. Id.

         The windows were transported to Carter Lumber by J.B. Hunt Transport, Inc., on behalf of EnerLux. Vonderfecht supervised the packaging, loading, and securing of the doors and the windows on the truck for delivery to Carter Lumber. ECF 54-2 at 10, p. 37; id. at 5, p. 16. Although Vonderfecht acknowledged that he did not recall packaging the specific windows shipped to Carter Lumber, he stated that “[a]ll the jobs are the same” and that he is “always on the truck helping load them up.” Id. at 5, p. 16. Further, Vonderfecht stated that he is “the one that does the strapping and final inspection. We package all the jobs the same.” Id. According to Vonderfecht, the windows were pushed up against the walls of the truck so that they stood vertically. Id., p. 17. Straps with ratchets were used to fasten the windows in place. Id. He also stated that the straps were tightened around the windows, and the ratchets were “closed all the way.” Id.

         On April 11, 2014, plaintiffs learned that the windows and doors “were being delivered” to Carter Lumber. ECF 26, ¶ 18; see also ECF 54-3 at 7, p. 23; ECF 54-4 at 3, p. 6. On that date, plaintiffs traveled to Carter Lumber with Sandretzky and several of Sandretzky's employees. ECF 54-3 at 7, p. 23. When plaintiffs arrived, the truck containing the windows and doors was parked, and the door to the cargo hold was open, thus allowing plaintiffs to see inside. Id. at 8, p. 26. At her deposition, Ms. Daniels stated, id. at 8, pp. 26-27: “It looked like something was wrong. The windows . . . were filtered toward the center-away from the sides of the truck, so the bottoms of the windows were all touching and the tops of the windows were fanned out against the straps[.]” Ms. Daniels added, id. at 8, p. 27: “It looked like something was amiss in the way it was loaded.”

         Plaintiffs stood outside the truck, observing as Carter Lumber employees unloaded doors and several of the smallest windows. ECF 54-3 at 12, pp. 44-45. No. representative of EnerLux was present. Plaintiffs inspected one of the windows after it was unloaded, and were concerned that it had been damaged. Id. at 12, p. 45. Additionally, Ms. Daniels stated, ECF 54-3 at 12-13, pp. 45-46: “[T]he top corners [of the windows] were padded with just styrofoam, but the styrofoam was about, altogether, about six inches wide, but the heavier-density foam that was at the bottom [of the windows] was maybe four inches wide.” Ms. Daniels has surmised that the size difference between the styrofoam used to package the tops and bottoms of the windows caused the windows to lean inward, giving them the appearance that they were “fanned out” inside the truck. Id. at 13, p. 46. Further, she observed that the straps holding the windows against the side of the truck “were slack, ” allowing the windows to lean inward. Id., p. 47. Ms. Daniels recalled that the windows needed to be “physically pushed back and held up to be unstrapped, and then to be unloaded one by one because, otherwise, they would have crashed to the floor.” Id. at 16, p. 58.

         Ms. Daniels recounted that “someone from Carter [Lumber] had agreed that it would be a good idea to get a photo, if something was damaged.” Id. at 15, p. 54. So, she got into the cargo hold of the truck to observe the windows as they were being unloaded and to take pictures of any window that appeared to have been damaged. Id. at 16, p. 60. However, Ms. Daniels did not help to unload the windows. Id.

         At her deposition, Ms. Daniels testified, ECF 54-3 at 17, pp. 62-63:

When they got to the very last set of windows, and these were the largest for the house, these windows were standing on their own; when they were unstrapped, they were still upright ..... The windows were large enough that it took two men for each window, so the unloading was taking a little longer . . . . So they took two or three out of that last set, and the windows were upright, the remaining windows were upright, the remaining three or four, and I was standing near those windows and I recall Tom Sandretzky's employee Bobby, and a Carter employee, walking off the truck with the window right before that, and, at that point, for the first time as I recall, I was alone in the truck for a few seconds and I was standing a foot or so away from the opposite wall of the truck, opposite, and that's when the accident happened.
I sensed something, because I put my hands up, and the first window fell against my hands; I'm not sure why I sensed it, and I kind of thought that was pretty heavy, and I braced, and then, within a second, the second window fell against it, and I know that-and then the other two toppled-I mean, all of that, from the time I put my hands up to when all the windows were on top of me was probably less than two seconds. But I put my hands up to brace, and the first window fell and the second, and then, when the other two came against it, that is when the windows pushed me back against the other side of the truck and fell on me.

         The following testimony of Ms. Daniels is also relevant, ECF 51-2 at 6:

Q: And you knew, from the moment that you first saw how the windows were stacked and strapped in, that there was a problem.
A: Yes.
Q: And you knew that the problem could result in the windows falling and either damaging the windows or damaging anyone else or injuring somebody that the windows fall on; correct?
A: That was our initial concern.
Q: “Initial” meaning before a single window or door came out of the truck.
A: There was concern from the very beginning.

         At his deposition, Mr. Daniels stated, ECF 54-4 at 8, p. 26: “[A]n agreement was struck between all of the workers as to how they were going to proceed to unstrap and make sure that they did not have the windows get damaged and did not have anybody get hurt.” He explained, id., p. 27: “There were enough individuals present such that the workers would go in and hold up or push the windows back against the wall, get them as stable as possible, take the strap off, hold the windows in place, and remove the first window [one] at a time, as they were pulling them off in an orderly fashion.” At his deposition, Mr. Daniels stated that he is trained as a chemical engineer and that he has worked, inter alia, in “warehouse management.” ECF 54-4 at 4, p. 13. In that role, Mr. Daniels was responsible, inter alia, for “quality control of . . . how things are shipped and packaged in the back of trucks, tankers, airlines[.]” Id. at 5, p. 14. Mr. Daniels testified that there was “great reason to be concerned” about damage to the windows, because the packaging “looked suspiciously incorrect . . . .” ECF 54-4 at 3, p. 8. He observed that the “windows had all remained semi-upright but were leaning against their restraining straps, ” some of which “had broken but not enough to allow the windows to completely fall over.” Id. at 3, p. 9.[4]

         Mr. Daniels also indicated that he recognized that the windows might fall. The following ...

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