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Court Recognizes Post-Sale Duty to Warn Claim

The estate of a worker who died while using a ripsaw which produced a “kick­back” and sent a sliver of wood out of the machine, striking him in the head, has stated claims against the ripsaw manu­facturer and its holding company based on allegations that the “antiquated” rip­saw is an inherently dangerous product that is excepted from a defense of privity for the older product, and that defendant had a post-sale duty to warn.

Privity defense

Plaintiff brings several negligence claims, an implied warranty claim and a wrongful death claim. Count I asserts general negligence by the producer, Diehl Woodworking Machinery Inc., in design­ing, manufacturing, testing, marketing, selling and failing to recall the ripsaw. Count II says Diehl negligently failed to warn decedent about the dangers asso­ciated with the ripsaw. Count III claims Diehl breached implied warranties asso­ciated with the ripsaw. Count IV asserts that Diehl negligently designed and manufactured the ripsaw and count V alleges a wrongful death claim.

Diehl asks the court to dismiss the en­tire amended complaint for lack of privi­ty. The Virginia legislature abolished the privity requirements for many product liability claims in 1962. Diehl, howev­er, says that because it produced and sold the ripsaw before 1962, Virginia’s anti-privity statutes do not apply and plaintiff must establish privity between himself and Diehl. Plaintiff correctly states that if the ripsaw could qualify as an inherently dangerous product, then the court cannot dismiss the negligence claims for lack of privity.

Relying on Burruss v. Suddith, 187 Va. 473 (Va. 1948), Diehl asserts that the inherently dangerous exception cannot apply to the ripsaw. However, this case provides insufficient authority for this court, without further factual develop­ment, to deem the Diehl Model 75 ripsaw not inherently dangerous.

Negligence claims

Virginia law recognizes three tra­ditional products liability negligence theories: negligent assembly or manu­facture, negligent design and failure to warn. Plaintiff claims that if Diehl had conducted inspection and quality con­trol and adhered to federal regulations and industry standards, it would have designed a safer ripsaw. The court inter­prets these allegations as negligent de­sign claims.

Plaintiff also argues that Diehl failed to properly test the ripsaw machine to ensure safety. The court cannot construe this as a failure to warn claim because plaintiff did not plead that Diehl had reason to know that the ripsaw required additional testing. Nor can these para­graphs be construed as a negligent de­sign claim because plaintiff does not al­lege the failure to test led to a defective design or that additional testing would have led to a reasonable alternative design. The court dismisses these para­graphs for failure to state a claim. The court also dismisses plaintiff ’s claim for failure to discontinue sales of recall the ripsaw, a duty not recognized under Vir­ginia law.

The Virginia Supreme Court has not explicitly recognized a post-sale duty to warn. Yet, that court has not explicitly denied its existence either. For years, the 4th Circuit and Virginia federal district courts have grappled with the question of whether this duty exists. This has pro­duced two competing views on the issue. The first view takes a strict approach. The 4th Circuit seems to support the sec­ond view, a looser approach adopted in McAlpin v. Leeds & Northrup Co., 912 F. Supp. 207 (W.D. Va. 1996). The Virginia Supreme Court’s decisions also provide legal and policy reasons for adopting the second view.

This court adopts the McAlpin ap­proach and finds that plaintiff sufficient­ly pleaded a failure to warn claim.

The court dismisses plaintiff ’s implied warranty claims. Unlike for negligence claims, the inherently dangerous excep­tion does not apply to warranty claims. Because plaintiff cannot establish privi­ty, and the inherently dangerous excep­tion does not apply to warranty claims, count III fails to state a claim upon which relief can be granted.

Powell, Adm’r v. Diehl Woodworking Machinery Inc. (Gibney) No. 3:15cv612, Aug. 3, 2016; USDC at Richmond, Va. VLW 016-3-370, 12 pp.


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