                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-1755


DAVID ERROL WERT,

                 Plaintiff - Appellant,

           v.

JEFFERDS   CORPORATION,     d/b/a   Homestead   Materials   Handling
Company,

                 Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:07-cv-00053-sgw-mfu)


Argued:    March 26, 2009                        Decided:   May 6, 2009


Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Steven D. Smith, HAGA & RHODES, PLC, Christiansburg,
Virginia, for Appellant.      Joy Lee Price, CASKIE & FROST,
Lynchburg, Virginia, for Appellee. ON BRIEF: Pavlina B. Dirom,
CASKIE & FROST, Lynchburg, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     In this personal injury action, David Wert appeals from the

grant of summary judgment to Jefferds Corporation, the lessor of

a forklift that caused Wert serious injury.           We affirm.



                                       I.

     Jefferds leases forklifts to Wert’s employer, Yokohama Tire

Company.      At all relevant times, Jefferds bore responsibility

for periodically inspecting and maintaining the forklifts. *              To

that end, Thomas Spence, an employee of Jefferds, serviced the

forklifts     on      Yokohama’s   property.      The       inspection   and

maintenance included servicing of strobe lights, which operate

when the forklifts are in use, and alarms, which sound when the

forklifts are in reverse.          Yokohama employees, however, found

the reverse alarms and strobe lights irritating and so routinely

disabled them.

     On February 26, 2005, a Yokohama employee backed a forklift

over Wert’s left foot crushing all of its major bones.             Wert did

not see any strobe lights or hear any reverse alarm on the

forklift,     which     would   have   warned   him    of    its   approach.


     *
       It appears that Jefferds and Yokohama did not have a
written contract in effect at the time of Wert’s accident. But
because the parameters of any contract (written or oral) do not
affect the resolution of this appeal, we need not determine the
terms of any possible contract.


                                       2
Moreover, Wert’s expert concluded that the strobe lights and

reverse alarm were disconnected from their power source at the

time of the accident.           All parties agree that Spence performed

the   scheduled     preventative       maintenance      for    the     forklift   in

question on February 18, 2005, eight days before the accident.

      Seeking compensation for his injuries, Wert brought this

action against Jefferds.              The district court rejected all of

Wert’s theories of liability and granted summary judgment to

Jefferds.     Wert timely appeals, contesting the grant of summary

judgment    with    respect      to    only    one     claim    --     common     law

negligence.



                                        II.

      We   review   de   novo    a    district      court’s    grant    of   summary

judgment, viewing the facts in the light most favorable to the

nonmoving party.      Colgan Air, Inc. v. Raytheon Aircraft Co., 507

F.3d 270, 275 (4th Cir. 2007).                As the site of the accident,

Virginia law governs this case.               Id.    Moreover, in determining

whether the district court erred in granting Jefferds summary

judgment, we may only consider the materials presented to the

court at the time it ruled on that motion.                      Harrods Ltd. v.

Sixty Internet Domain Names, 302 F.3d 214, 242 (4th Cir. 2002).

Finally, in order to prevail on a negligence claim, a plaintiff

like Wert must offer evidence from which a jury could conclude

                                         3
that the defendant -- Jefferds -- owed him a legal duty, which

it breached.        Atrium Unit Owners Ass’n v. King, 585 S.E.2d 545,

548 (Va. 2003).        With these principles in mind, we turn to the

case at hand.



                                      III.

       Wert initially contends that the district court erred in

holding, “as a matter of law, that plaintiff was barred from a

common law negligence claim because plaintiff David Wert was not

in   privity    of    contract    with   defendant     Jefferds.”      Brief   of

Appellant at 8.        The district court, however, never held that

the lack of privity barred a negligence action.                       Rather the

court held that (1) the only duty Jefferds possibly owed Wert

arose from contract and (2) any such contractual duty could not

give   rise    to    recovery    in   negligence.       The    district    court

certainly did not err with respect to the second point.                    Well-

established Virginia law holds that a duty that arises solely

from a contract can only provide the basis for a contract claim;

it cannot provide the basis for a negligence claim.                     Richmond

Metro. Auth. v. McDevitt St. Bovis, Inc., 507 S.E.2d 344, 347

(Va. 1998).

       The district court’s initial conclusion -- that the only

duty possibly owed by Jefferds to Wert sounded in contract --

requires   a   bit    more   analysis.       This   analysis   also    addresses

                                         4
Wert’s     central      contention:       that        he     has     presented       facts

sufficient for a jury to conclude that Jefferds breached some

sort of common law, non-contractual duty.

       Wert first argues that Jefferds had some non-contractual

ongoing general duty to inspect the forklifts.                        Wert points to

no authority for such a proposition, and common sense dictates

that, absent a contractual obligation, a company that leases or

repairs equipment owes no ongoing duty of inspection.

       Alternatively, Wert contends that, once Jefferds undertook

to service the forklift on February 18, that undertaking created

a   duty   to   repair    the    vehicle      in     a     reasonable      manner.      No

Virginia case explicitly recognizes such a duty, but even if we

assume     Jefferds   owed   Wert     a   duty       of    reasonable      repair,    Wert

cannot prevail.         For, in order to avoid summary judgment, Wert

must   offer    evidence     from     which      a    jury    could     conclude      that

Jefferds     breached    this    duty.        Wert        attempts    to    do   this   by

asserting that Jefferds (1) failed to assure that an alarm was

installed on the forklift at the time of the accident and/or (2)

inadequately serviced the reverse alarm and strobe lights.

       Wert’s first repair argument fails because prior to the

grant of summary judgment, Wert offered no evidence that the

forklift     did   not    have    a   reverse         alarm.         Although     Spence

testified at deposition that he often replaced reverse alarms on

forklifts, this evidence does not provide any information about

                                          5
the state of the reverse alarm on the particular forklift at

issue.

      To    support      his     second       repair            argument,       Wert       primarily

relies     on    the   absence         of     a       checkmark          next       to     the    item

“pedestrian      warning       devices”       on       a    February          18,    2005    service

maintenance      log     and      purported            inconsistencies                in    Spence’s

deposition      testimony       as    to     whether            he    inspected       the    reverse

alarm and strobe lights on that date.                                In fact, at deposition,

Spence     explained      that       he     indicated            the     functioning         of    the

reverse alarm and strobe lights by putting a checkmark next to

the   category     “operation         of    accessories”               (and     not      “pedestrian

warning    devices”)       on    the       service         maintenance           log.        On    the

February    18    log,    a     checkmark             in   the        first     column      next    to

“operation of accessories” indicates that Spence found that the

“accessories” on the relevant forklift were “O.K.” on that day.

Spence also testified that if there had been a problem with the

reverse alarm or the strobe lights he would have issued a work

order for them, and that he did not do that.

      Wert provides no evidence to support his contention that

the strobe lights or reverse alarm were, in fact, included in

the category “pedestrian warning devices.”                              Instead, Wert relies

on    certain    arguably        contradictory                  deposition          statements      by

Spence explaining why some items on the maintenance log lack a

checkmark.        Although        this       part          of        Spence’s       deposition      is

                                                  6
slightly confusing, it is also irrelevant.                            Spence testified

consistently that the inspection of the reverse alarm and strobe

lights was included within “operation of accessories,” an item

clearly checked as “O.K.”               Indeed, Wert’s attorney effectively

conceded      in    the     district       court    that     Spence    had    adequately

inspected and repaired the forklift when counsel agreed that

eight days before Wert’s accident Jefferds (through Spence) had

“fixed it.”

      Wert’s expert report similarly creates no jury issue as to

breach of duty.             The expert essentially stated that a reverse

alarm could have prevented the accident and that Spence should

have noticed a broken reverse alarm or strobe light.                              Although

perhaps accurate, this opinion provides no information about the

reasonableness         or     effectiveness          of     Spence’s       servicing    on

February 18, because it does not contain any information about

the   state    of     the    alarm    or    lights        when    Spence    returned   the

forklift   to      Yokohama.         Wert’s       expert    appears    to    assume    that

Jefferds had a duty of ongoing inspection, which, as discussed

above, does not exist at common law.

      Finally, Wert suggests Jefferds breached its duty of proper

repair   by     not    “fixing”       the     forklift       to    render    it   tamper-

resistant.         This argument fails for two reasons, both of which

the district court identified.                    First, Wert offered no evidence

that Jefferds “fixed” the reverse alarm or strobe lights at all.

                                              7
In   fact,   no    record       evidence   indicates        the    reverse    alarm    and

strobe lights needed repair on February 18; rather a checkmark

identified    them        as    “O.K.”      Second,        uncontroverted       evidence

indicates    that        Spence    generally      repaired        reverse    alarms    and

strobe lights with butt connectors, which restore the wiring to

its original strength.               Absent a contractual agreement to do

otherwise,    returning           the    forklift     to    its     “normal,    working

condition”    does        not    breach    any    duty     of     repair.      Baker    v.

Poolservice       Co.,    636     S.E.2d   360,     365    (Va.    2006).      Thus    the

record contains no evidence supporting a breach of duty.



                                           IV.

      For the foregoing reasons, the judgment of the district

court is

                                                                               AFFIRMED.




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