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Salesman Dismissed from Products Liability Case

In this wrongful death suit alleging a lift truck was unreasonably dangerous because it did not have vertical rear posts that would protect the operator from un­der-ride injuries, such as decedent suf­fered at the Elizabeth Arden plant in Roanoke, the Roanoke U.S. District Court finds that a defendant salesman was fraudulently joined and will be disregard­ed for purposes of determining diversity jurisdiction; the court denies the motion to remand the matter to state court.

Fraudulent joinder

Although plaintiff and the salesman are both citizens of Virginia, defendants contends the salesman’s citizenship should be ignored under the fraudulent joinder doctrine. Defendants contend there is no possibility of recovery against the salesman.

Plaintiff does not claim the title to the lift truck passed from the salesman to Elizabeth Arden. Instead, plaintiff spe­cifically alleges the lift truck was sold to Elizabeth Arden through Werres Corpo­ration, and that the salesman was merely an employee of the company. As such, he was not the “seller” or “manufacturer” of the lift truck and the court agrees with defendants that there is no reasonable basis for predicting liability against the salesman on plaintiff’s breach of warran­ty claims.

Defendants also contend there is no possibility of recovery against the sales­man for negligent design, manufacture, assembly and failure to warn. The court agrees. In determining whether an em­ployee can be held liable for an injury to a third party, Virginia courts distinguish between acts of misfeasance and non­feasance. In this case, it is undisputed that the salesman did not design, man­ufacture or assemble the lift truck that decedent was operating at the time of his death. To the extent the salesman failed to adequately warn of the risks associated with using the lift truck, such allegations describe acts of nonfeasance for which an employee is not personally liable un­der Virginia law. In the absence of any allegation or evidence that the salesman himself affirmatively acted to create a dangerous condition in any way, the court concludes there is no possibility that he would be held liable for negligence.

Finally, there is no allegation or ev­idence that the salesman acted with a spirit of mischief or criminal indifference. Nor is there any allegation or evidence that he consciously disregarded the safe­ty of others in facilitating the lease and sale of the subject lift truck.

The court will disregard the salesman’s citizenship for diversity purposes, dis­miss him from the case and retain juris­diction over plaintiff’s claims against the remaining defendants.

Sayegh, Adm’r v. The Raymond Corp. (Conrad) No. 7:15cv688, Nov. 1, 2016; USDC at Roanoke, Va.; David A. McKel­vey for plaintiff; Paul G. Beers for defen­dant corporations. VLW 016-3-559, 6 pp.

VLW 016-3-559