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Mohammed Bashir and Victoria Dantchenko v. the Home Depot

August 16, 2011


The opinion of the court was delivered by: Pisano, District Judge.



This product liability action is brought by Mohammed Bashir ("Plaintiff") and Victoria Dantchenko against defendants Home Depot, U.S.A., Inc. ("Home Depot") and Husqvarna U.S. Holdings, Inc. ("Husqvarna" and, together with Home Depot, the "Defendants"). Presently before the Court are the following motions: (1) a motion for summary judgment by Home Depot based on N.J.S.A. § 2A:58C-9(b) and (2) a motion for summary judgment by the Defendants based on Plaintiff's spoliation of evidence. Plaintiff opposes both motions. The Court decides the motions without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth herein, the motions for summary judgment are denied.


This matter involves Plaintiff's rental of a stump grinder from Home Depot on April 16, 2008. Home Depot was the retail lessor of that stump grinder, which was designed and manufactured by Husqvarna. [Home Depot Answers to Interrogatories, ¶¶ 15-16; Husqvarna Answers to Interrogatories, ¶¶ 14 and 16]. Husqvarna includes an operating manual with the stump grinder and expects that users of the machine will read the operation and safety portions of the operating manual prior to use. [Richard Bednar Deposition at 61]. In addition, Husqvarna includes notices on the stump grinder itself instructing users to read the operating manual before using the machine. [Id. at 62-63].

Home Depot allows rental customers to waive their right to receive the operating manual. [Id. at 63]. Home Depot employee Enrico Saviano ("Saviano") testified that every machine is tested before it is rented to a customer. [Saviano Deposition at 39]. He also explained that, prior to renting a machine to a customer, he demonstrates the product, makes sure that the renter is comfortable with the machine and that they know how to operate it properly. [Saviano Deposition at 39]. He acknowledged feeling an obligation to talk certain customers out of renting a machine if he feels it is unsafe for them. [Id. at 76 and 151]. Saviano also acknowledged that customers should still read the operator's manual, despite receiving training from him on how to use a particular machine. [Id. at 174].

Plaintiff went to Home Depot on April 16, 2008, and inquired about renting a "root grinder." [Mohammed Bashir Deposition at 97]. He was assisted by Saviano. [Saviano Deposition at 180]. Upon seeing the size of the stump grinder, Plaintiff left Home Depot to get two day-laborers to help him with the machine. [Mohammed Bashir Deposition at 119-120]. After returning to Home Depot, Plaintiff completed the rental of the stump grinder and then brought it and the day-laborers home. [Id. at 120-122].

Plaintiff was injured when the stump grinder's blade came into contact with his leg while a day-laborer operated the machine in Plaintiff's backyard. Plaintiff testified that, after the blade came in contact with his foot and ankles, he fell onto his back. [Id. at 238-240]. He testified that, immediately after falling to the ground, he was concentrating on how to control the blood that was pouring from his body. [Id. at 241]. Meanwhile, the day-laborers knocked on the door of Plaintiff's house to get the attention of Plaintiff's mother-in-law, who did not speak any English. [Id]. Plaintiff told her to bring him the phone and he dialed 911. [Id]. After the ambulance arrived and Plaintiff was being treated by medical personnel, he told his mother-inlaw to return the stump grinder to Home Depot and asked her to take the day-laborers back as well. [Id. at 243]. Plaintiff did not ask his mother-in-law to take down contact information for the day-laborers or to inform Home Depot of the accident. [Id. at 244]. Plaintiff testified that he did not contemplate litigation until he discovered the Vermeer Stump Grinder, several months after the accident. [Id. at 498-499].

Plaintiff filed the second amended complaint in this product liability action on March 27, 2009. Plaintiff alleges that the stump grinder was defectively designed and that Husqvarna failed to include proper safety warnings with the machine. Plaintiff also claims that, although Husqvarna included warnings with the stump grinder that advised users to read the operating manual, Home Depot allowed its renters to waive reading the operating manual, and attempted to substitute reading the operating manual by providing its own training. Plaintiff offers the testimony of two experts, Mr. Gary Sheesley and Mr. John David Calvert, in support of his claims.


A court shall grant summary judgment under Rule 56 of the Federal Rules of Civil Procedure "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The substantive law identifies which facts are critical or "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A factual dispute is 'genuine' and thus warrants trial 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (quoting Anderson, 477 U.S. at 248).

On a summary judgment motion, the moving party must show, first, that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party makes this showing, the burden shifts to the non-moving party to present evidence that a genuine fact issue compels a trial. Id. at 324. The non-moving party must then offer admissible evidence that establishes a genuine issue of material fact, id., not just "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

The Court must consider all facts and their logical inferences in the light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The Court shall not "weigh the evidence and determine the truth of the matter," but need determine only whether a genuine issue necessitates a trial. Anderson, 477 U.S. at 249. If the non-moving party fails to demonstrate proof beyond a "mere scintilla" of evidence that a genuine issue of material fact ...

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