       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


 STROBERT TREE SERVICES, INC,           )
                                        )
       Plaintiff,                       )
                                        )
              v.                        )
                                        )     C.A. No. N14C-09-081 CLS
 KENNETH LILLY FASTENERS,               )
 INC.,                                  )
                                        )
       Defendant.                       )
                                        )
                                        )

                       Date Submitted: March 29, 2019
                        Date Decided: April 4, 2019

                    On Defendant Kenneth Lilly Fastener’s
                       Motion for Summary Judgment.
                                  Granted.




Victoria Petrone, Esquire, Logan & Petrone, LLC, 100 West Commons Blvd.,
Suite 435, New Castle, Delaware, 19720. Attorney for Plaintiff.

David Baumberger, Esquire, Chrissinger & Baumberger, 3 Mill Road, Suite 301,
Wilmington, Delaware, 19806. Attorney for Defendant.


Scott, J.
    Upon consideration of the Defendant’s Motion for Summary Judgment, and the

record of the case, it appears that:

    1. Plaintiff’s cause of action alleges industrial fasteners supplied by Defendant

       were defective, resulting in severe damage to an industrial land clearing

       grinder.

    2. On October 16, 2018, the Court granted Defendant’s Motion to Exclude

       Plaintiff’s expert’s report. Defendant’s filed this Motion on March 12, 2019,

       arguing Plaintiff cannot establish the necessary elements of their claim

       without expert testimony or opinion.

    3. The Court may grant summary judgment if “the pleadings, depositions,

       answers to interrogatories, and admissions on file, together with the

       affidavits, if any, show that there is no genuine issue as to any material fact

       and that the moving party is entitled to summary judgment as a matter of

       law.”1 The moving party bears the initial burden of showing that no material

       issues of fact are present.2 Once such a showing is made, the burden shifts to

       the non-moving party to demonstrate that there are material issues of fact in

       dispute.3 In considering a motion for summary judgment, the Court must




1
  Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
2
  Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
3
  Id. at 681.
                                          2
       view the record in a light most favorable to the non-moving party.4 The

       Court will not grant summary judgment if it seems desirable to inquire more

       thoroughly into the facts in order to clarify the application of the law.5

    4. Defendant originally believed the batch of industrial nuts at issue had been

       returned to the manufacturer, they were not. Defendant discovered that they

       still had the batch of nuts in their possession.

    5. On April 11, 2017, Plaintiff’s counsel notified the Court that he was scheduled

       to pick up a number of the nuts for the purpose of testing.6 Plaintiff, however,

       expressed concern that the nuts picked up for testing were not from the same

       batch as the original.7

    6. In July 2018, with their Motion to Exclude Plaintiff’s expert pending,

       Defendant expressed reluctance to allow more time for testing, as Plaintiff had

       failed to conduct any testing on the samples delivered the previous year.8

    7. Plaintiff has not conducted testing on any of the industrial nuts alleged to be

       faulty.




4
  Burkhart, 602 A.2d at 59.
5
  Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ
Prods., Inc., 2006 WL 1720073, at *1 (Del. Super. Ct. Apr. 26, 2006).
6
  D.I. 45.
7
  D.I. 48.
8
  D.I. 62.
                                       3
     8. Trial in this action was continued on November 10, 2016, to allow for testing

        by Defendant. In their opposition to the current motion, Plaintiff seeks to

        compel production of the nuts remaining in Defendant’s possession for the

        purpose of expert testing and analysis. Plaintiff questioned the provenance of

        the same nuts in 2017, and chose not to submit them to testing at that time.

        The time for discovery and submission of expert reports has passed. The

        Court has given ample time for both parties to perform testing.

     9. To be successful on a breach of warranty of merchantability claim, a plaintiff

        must prove: “(1) that a merchant sold the goods; (2) which were defective at

        the time of sale; (3) causing injury to the ultimate consumer; (4) the proximate

        cause of which was the defective nature of the goods.9 To withstand Lilly’s

        summary judgment motion, Strobert is required to present some evidence to

        support all of the elements of its claim for a breach of the implied warranty of

        merchantability.10

     10.Plaintiff must establish the nuts product were both defective and the proximate

        cause of the injury it sustained.11 Circumstantial evidence may be submitted

        to substantiate a prima facie case that there was a breach, however “it must




9
  Reybold Grp., Inc. v. Chemprobe Techs., Inc., 721 A.2d 1267, 1269 (Del. 1998).
10
   Id, at 1270 (Del. 1998).
11
   Id.
                                       4
        tend to negate other reasonable causes of the injury sustained or there must be

        expert opinion that the product was defective.”12

     11.If the matter at issue in a breach of warranty claim is within the common

        knowledge of laymen, expert opinion is not required, however, the design,

        manufacture, and use of industrial fasteners is beyond the common knowledge

        of the layperson. Accepting as true Plaintiff’s claim that the nuts delivered by

        Defendant were defective, the nature this case involves questions of

        manufacturing tolerances, metallurgical composition, torque specifications,

        and industrial lubricants, among others. These are questions of fact, which

        would require the assistance of an expert for laypersons to comprehend.

        Testimony by the Plaintiff that the nuts were defective because his grinder

        was damaged is insufficient.

     12. Negligence is never presumed, it must be proven.13 As a general rule

        questions of negligence are not decided on motions for summary judgment,

        but are left for the trier of fact.14 Where the undisputed facts compel only one

        conclusion, however, the Court has the duty to enter a judgment accordingly.15




12
   Id.
13
   Wilson v. Derrickson, 175 A.2d 400, 401-02 (Del. 1961).
14
   Faircloth v. Rash, 317 A.2d 871, 871 (Del. 1974).
15
   Id.
                                         5
     13. The evidence presented includes Plaintiff’s account of the events; Plaintiff

        was engaged in a large scale land clearing operation. As part of that operation

        trees were being removed and loaded into an industrial shredding machine.

        The machine employs a 1,050 horsepower diesel engine to rotate a grinding

        drum roughly three times the size of an oil drum. The grinding drum weighs

        16,000 pounds and rotates at a speed of 840 to 900 rpm. The drum has 26

        replaceable grinding teeth or hammers attached the face of the drum. The

        hammers are frequently changed as they become worn down. Each hammer

        is attached to the drum with 2 nuts and 2 bolts. These nuts and bolts are

        industrial grade fasteners. The fasteners are delivered with a certificate of

        inspection and the results of that inspection. The certificate of inspection

        includes a chemical analysis of the fastener, and adherence to manufacturing

        tolerances.

     14. The nature of the industrial fasteners in this case requires the assistance of

        expert testing and opinion. A layperson cannot be expected to know or fully

        appreciate the laws of mechanics governing the problem involved in this

        case.16   Without expert testimony, Plaintiff must rely on circumstantial

        evidence to prove their case. Plaintiffs may use circumstantial evidence to




16
     See Phillips v. Delaware Power & Light Co., 216 A.2d 281, 284 (Del. 1966).
                                         6
        prove the nuts were defective, however, the evidence must be such that

        negligence is the only possible inference therefrom.17

     15. The record in this case is strikingly similar to those presented in Dilenno v.

        Libbey Glass Div., Owens-Illinois, Inc.18 and Joseph v. Jamesway Corp.,19

        wherein Plaintiffs reached the conclusion that a product was defective simply

        because of its failure. In viewing the evidence in a light most favorable to the

        Plaintiff, all Strobert has shown is that the hammers of the grinding machine

        separated from the grinding drum.

     16. Without expert testimony Plaintiff cannot establish the nuts provided were

        unfit for Plaintiff’s particular use or were otherwise defective. Testimony by

        Plaintiff’s layperson employees that the hammers separated because the nuts

        were defective would be impermissible speculation. The same is true for

        testimony that the nuts were not manufactured in accordance within the

        required specifications.

     17. Strobert’s claims for breach of contract and warranty are based on the

        assertion that the nuts were defective. Because Strobert cannot demonstrate




17
   Joseph v. Jamesway Corp., 1997 WL 524126, at *4 (Del. Super. Ct. 1997).
18
   668 F.Supp. 373 (D. Del. 1987).
19
   1997 WL 524126 (Del. Super. Ct. 1997).
                                      7
         that the nuts were defective the claims for breach of contract and warranty

         must fail.20

     18. In regards to Lilly’s counterclaim, the record shows Plaintiff Strobert Tree

         Services issued a check in the amount of $5,099.13, therefore Lilly’s motion

         for summary judgment on their counterclaim for payment on the nuts

         purchased is moot.

         For the forgoing reasons, Defendant’s Motion for Summary Judgment on the

breach of contract, breach of express warranty, and breach of implied warranty of

merchantability is GRANTED.



         IT IS SO ORDERED.

                                                     /s/ Calvin L. Scott
                                                     Judge Calvin L. Scott, Jr.




20
     See Joseph, at *6.
                                           8
