United States District Court, D. Maryland
CLARA DANIELS, et al. Plaintiffs,
THE CARTER-JONES LUMBER COMPANY, et al. Defendants.
Lipton Hollander United States District Judge
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. In addition,
plaintiffs assert a claim for loss of consortium.
Id. And, as to Carter Lumber, plaintiffs allege a
claim of negligent supervision. Id.
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.
hearing is necessary to resolve the summary judgment motions.
See Local Rule 105.6. For the reasons that follow, I
shall deny both motions.
Factual and Procedural Background
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.
relevant time, plaintiffs were building a retirement home in
Falling Waters, West Virginia. ECF 54-4 (Deposition of Mr.
Daniels) at 3, p. 6. 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,
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.
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.
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.
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.”
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,
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
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.
following testimony of Ms. Daniels is also relevant, ECF 51-2
Q: And you knew, from the moment that you first saw how the
windows were stacked and strapped in, that there was a
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.
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.
Daniels also indicated that he recognized that the windows
might fall. The following ...