
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________          No. 93-1459                                     JAY DOOLEY,                                Plaintiff, Appellant,                                          v.                         PARKER-HANNIFIN CORPORATION, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________               Amato A. DeLuca with  whom Mandell, DeLuca & Schwartz,  Ltd.               _______________            _________________________________          was on brief for appellant.               Raymond A. LaFazia  with whom Kevin  S. Cotter and  Gunning,               __________________            ________________      ________          LaFazia & Gnys, Inc. were on brief for appellees.          ____________________                                 ____________________                                   October 21, 1993                                 ____________________                      Per  Curiam.   In this  appeal, plaintiff-appellant                      ____________            Jay Dooley claims  that the district court erred  in granting            defendant-appellee   Parker-Hannifin  Corporation   ("Parker-            Hannifin")1 summary  judgment on  the  issues of  negligence,            breach of warranty  and strict liability.   Finding no error,            we affirm.                                               I.                                          I.                                          __                                  Standard of Review                                  Standard of Review                                  __________________                      Our review  of  summary judgment  decisions  is  de                                                                       __            novo, reading the record  in the light most favorable  to the            ____            non-moving party.  See, e.g., Rivera-Marcano v. Normeat Royal                               ___ _____  ______________    _____________            Dane  Quality A/S,  998 F.2d  34, 37  (1st Cir.  1993)(citing            _________________            August  v. Offices  Unlimited, Inc., 981  F.2d 576,  580 (1st            ______     ________________________            Cir.  1992)).   Summary  judgment  is  appropriate only  when            "there is no  genuine issue  as to any  material fact"  based            upon  the pleadings, depositions,  and affidavits,  and where            "the moving party  is entitled to a  judgment as a matter  of            law."  Fed. R. Civ. P.  56(c).  In determining whether a fact            is  material,  a  court  must  consider whether  it  has  the            "potential to affect the outcome of the suit under applicable            law."  Nereida-Gonzalez v.  Tirado-Delgado, 990 F.2d 701, 703                   ________________     ______________            (1st  Cir.  1993).   While  we will  "indulge  all reasonable            inferences" in  the  nonmovant's favor,  Santiago v.  Sherwin                                                     ________     _______                                            ____________________            1.  References to Parker-Hannifin apply equally to all  named            appellees.                                         -2-                                          2            Williams Co., No. 92-2263, slip op. at 8 (1st  Cir. Sept. 10,            ____________            1993),   we  will  not   consider  "`conclusory  allegations,            improbable inferences, and unsupported speculation.'"  Dow v.                                                                   ___            United Bhd. of  Carpenters and  Joiners, 1 F.3d  56, 58  (1st            _______________________________________            Cir. 1993)(quoting Medina-Munoz v. R.J. Reynolds Tobacco Co.,                               ____________    _________________________            896 F.2d 5, 8 (1st Cir. 1990)).                                         II.                                         II.                                         ___                       Factual Background and Prior Proceedings                       Factual Background and Prior Proceedings                       ________________________________________                      Parker-Hannifin  is  a  supplier,  inter  alia,  of                                                         _____  ____            aeronautics parts to the United States  Government.  Prior to            1986,  Parker-Hannifin contracted with  American Tube Bending            Co.  ("ATB") for  tubing  to be  processed  and delivered  to            Parker-Hannifin   in    accordance   with   government-issued            specifications.    ATB,  or  some  entity  acting  under  its            direction,  designed  and manufactured2  a holding  die which            fit into a  hydraulic press machine owned  by ATB.   This die            was used to bend  and form the tubing in accordance  with the            government  specifications.     In  1986,   Tubodyne  Company            acquired this holding  die,3 as well  as ATB's press  machine                                            ____________________            2.  There  is  no  evidence  regarding  who  manufactured  or            designed the original die.  It is conceded, however, that the            work was performed either  by ATB or at ATB's  direction, and            not by Parker-Hannifin.            3.  Dooley contends that the die is owned by Parker-Hannifin.            Although there is ample  evidence in the record to  show that            Tubodyne  passes  both its  cost  of producing  the  dies and            ownership  on to its customers, there is no evidence that ATB            had the same practice.   Parker-Hannifin denies ownership and            offers in evidence the fact that  it never listed the die  as                                         -3-                                          3            when  ATB  sold  Tubodyne  its  assets  and  customer  lists.            Parker-Hannifin subsequently became a customer of Tubodyne.                       By 1988, due  to normal wear and  tear, the holding            die was not gripping the metal tubing effectively.   Tubodyne            informed Parker-Hannifin  of the problem and a representative            of Parker-Hannifin  observed the  worn die.   Parker-Hannifin            then allegedly  approved an  extension to  the die which  was            supposed to result  in a  better grip of  the material to  be            formed.4 Parker-Hannifin  did not have any part in the design            or  manufacture  of the  actual  extension.5   Viewed  in the            light  most favorable  to the  plaintiff, the  evidence shows            that Parker-Hannifin approved Tubodyne's plan 1) to alter the            die as  Tubodyne saw  fit;  and 2)  to pass  the  cost on  to                                            ____________________            an asset of the company.  We need not solve this controversy,            however, since we do not find ownership to be a material fact                                                            ________            in this dispute.            4.  There is no direct  evidence of this approval.   The only            evidence on record is  Dooley's contention that the president            of Tubodyne,  Norman MacLeod,  Jr., told Dooley  that Parker-            Hannifin's  approval was  necessary  before he  could add  an            extension, and the deposition testimony of Tubodyne's general            manager, Jeanie Juckett, who stated that although she did not            remember any specific conversation with  Parker-Hannifin, she            "assumed that they gave  their blessing since we did  put the            extensions [sic] on."            5.  Dooley argues that Parker-Hannifin's approval of the idea            of an  extension, without more, amounts to its having "played            a  significant role  in  the design  and  manufacture of  the            extension."  While  we must  recount the facts  in the  light            most  favorable to the nonmoving party,  we are not compelled            to credit  conclusory allegations unsupported  by the record.            See Dow, 1 F.3d at 58.            ___ ___                                         -4-                                          4            Parker-Hannifin.6    Tubodyne,  or  some   entity  under  its            direction, then  designed and manufactured the  extension.7                        On  June  30,  1988,  Jay  Dooley,  an  experienced            Tubodyne employee, was assigned to form aircraft exhaust duct            tubing for Parker-Hannifin.  After attaching the die with the            newly  designed extension  to  the press  machine, he  became            concerned  that  the  extension  and the  machine  created  a            potentially   dangerous  pinch   point.     Although   Dooley            complained to Tubodyne management  about the possible risk of            injury, he nevertheless operated  the machine and crushed his            thumb between the extension and the press machine.                      In  June  of  1991, Dooley  commenced  a  diversity            action against Parker-Hannifin,  alleging negligence,  breach            of implied and express  warranties and strict tort liability.            Parker-Hannifin  subsequently  filed  a  motion  for  summary            judgment  which the  district  court granted.   The  district            court found that Parker-Hannifin was not negligent because it            did  not  owe a  duty to  Dooley,  and was  not  liable under                                            ____________________            6.  However, once again,  there is no direct evidence to show            that Tubodyne ever charged Parker-Hannifin for the extension.            Although Juckett and MacLeod stated in their depositions that            it is their usual practice to charge for such  modifications,            the  plaintiff was  not able  to produce an  invoice charging            Parker-Hannifin for the extension.            7.  Neither  MacLeod  nor  Juckett   could  remember  if  the            extension was manufactured in-house or outside, at Tubodyne's            direction.                                          -5-                                          5            warranty or strict liability theories because Parker Hannifin            was not the seller of  the die or its extension.   Dooley now            appeals from that final judgment.                                         III.                                         III.                                         ____                                      Discussion                                      Discussion                                      __________                      Dooley  argues on  appeal that  the district  court            applied  the wrong  standard in  determining whether  Parker-            Hannifin owed him  a duty  of due care.   More  specifically,            Dooley  claims that Parker-Hannifin  was negligent by failing            to  ensure that  the die  and extension  were safe  for their            intended use.  He asserts that  this duty stems from the fact            that:   (1) Parker-Hannifin allegedly  owned the die  and the            extension; (2) an agent of Parker-Hannifin allegedly observed            the die malfunction  before the extension was  added; and (3)            an agent of  Parker-Hannifin allegedly approved the  addition            of the extension.   Dooley further  argues that the  district            court  erred in finding that no issue of material fact exists            on the issues of breach of warranty and strict liability.  We            address each argument in turn.            A.  Negligence            A.  Negligence            ______________                      In  order to  make  out a  viable negligence  claim            under  Rhode  Island law,8  one  must first  establish,  as a            matter of  law, that a  duty exists.   See  Banks v.  Bowen's                                                   ___  _____     _______                                            ____________________            8.  The  parties do not dispute that Rhode Island law applies            in this diversity action.                                         -6-                                          6            Landing Corp., 522 A.2d 1222, 1224 (R.I. 1987)(citing Barratt            _____________                                         _______            v.  Burlingham, 492 A.2d 1219, 1220 (R.I. 1985)); Welsh Mfg.,                __________                                    ___________            Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436, 440            _____________________    _________________            (R.I. 1984).  The Rhode Island Supreme Court has stated:                      In  considering  whether  a duty  exists,                      among  the factors considered are (1) the                      foreseeability of harm to  the plaintiff,                      (2)  the  degree  of  certainty  that the                      plaintiff  suffered  an  injury, (3)  the                      closeness   of  connection   between  the                      defendant's   conduct   and  the   injury                      suffered,  (4)  the policy  of preventing                      future  harm, and (5)  the extent  of the                      burden   to   the   defendant   and   the                      consequences   to   the   community   for                      imposing  a duty  to  exercise care  with                      resulting liability for breach.            Banks, 522 A.2d at 1225.9   In light of these factors and the            _____                                            ____________________            9.  Dooley  argues that  the standard  announced in  Banks is                                                                 _____            "inapposite to the present matter."   In so doing, he cites a            line of  cases  delineating  duties  owed  by  manufacturers,            designers, sellers, suppliers and  lessors of goods.  Because            Parker-Hannifin does not fit into any of these categories, we            find these cases, rather than Banks, to be inapposite.                                          _____                 Dooley also urges us to apply Barron v. Honeywell, Inc.,                                               ______    _______________            69 F.R.D. 390  (E.D. Pa.  1975) and to  reverse the  district            court  on this basis.  Even if  we were to find Barron, which                                                            ______            applied Pennsylvania  law, to be persuasive  authority, it is            clearly distinguishable from the  instant matter.  In denying            a motion for summary judgment, the court in Barron found that                                                        ______            the defendant, the owner of a defective plastics machine, had            leased the  machine to  a plastics manufacturer.   The  court            ______            further  noted that  the defendant,  who also  bought plastic            parts from the  lessee, had required the  manufacturer to use            the malfunctioning  machine to produce his  parts even though            the  defendant had  observed  the machine  malfunction on  at            least  two  separate occasions.   Id.  at  392.   The present                                              ___            situation, however, is very different.   There is no evidence            that an agent of Parker-Hannifin ever saw the extension on or            off the machine.   Dooley  points to his  own deposition  for            support  of  the  proposition  that  an  agent  saw  the  die            malfunction before  the extension was added.   However, there                        ______            is  no  allegation that  the  die  was dangerous  before  the                                                   _________                                         -7-                                          7            record  evidence,  we  agree  with the  district  court  that            Parker-Hannifin,  which did not  design, manufacture, sell or            control the die extension, owed no duty to Dooley.                      As    noted    earlier,   Parker-Hannifin's    only            connections  to  Dooley's  injury10  were  its  approval  and            alleged  ownership of  the  die extension.   We  find neither            factor sufficient  to support a duty  for negligence purposes            in this case.   Parker-Hannifin never possessed or controlled            the  extension that Tubodyne,  Dooley's employer, designed to            fit  its own press machine.   It is  not alleged that Parker-            Hannifin ever saw  the extension or knew how it  would fit or            operate in Tubodyne's machinery.  Accordingly, we do not find            that the injury  to Dooley was  a foreseeable consequence  of            any action on the part of Parker-Hannifin.11                        Nor do  we find a close  connection between Parker-            Hannifin's approval  of  the extension  and Dooley's  injury.            Several factors, such as  Tubodyne's design of the extension,            Dooley's  prior   knowledge  of  the   potentially  dangerous            condition, and  Tubodyne's insistence that Dooley operate the            machine despite  Dooley's perception of the  inherent danger,                                            ____________________            extension was added.  Thus, if the agent saw anything, it was            only that the  die did  not properly grip  the metal.  Dooley            does not argue,  nor could he on  the record before us,  that            the  malfunction  that  the   agent  allegedly  saw  was  the            proximate cause of his injury.            10.  Neither party disputes the actuality of Dooley's injury.            11.  See generally supra note 9.                 ___ _________ _____                                         -8-                                          8            intervened  and  served   to  distance   an  already   remote            relationship.  See Banks, 522 A.2d at 1225.                             ___ _____                      Finally,  we do  not believe  that imposing  a duty            upon  Parker-Hannifin, on this record, could possibly further            a  policy of  preventing future  harm.   On the  contrary, as            aptly noted  by the  district court,  holding Parker-Hannifin            responsible for  protecting employees it did  not employ from            risks  of injury associated with  the use of  machines it did            not  design,   manufacture,   sell  or   control   would   be            "unreasonable  and  would  impose  a  substantial  burden  on            Parker-Hannifin without any commensurate decrease in the risk            of future injuries."    Dooley v.  Parker-Hannifin Corp., 817                                    ______     _____________________            F.  Supp. 245, 247 (D.R.I.  1993).  By  their own admissions,            before  any injury  occurred, both  Dooley and  Tubodyne were            aware of  the potentially dangerous condition  created by the            interaction between the extension Tubodyne designed and their            machine  which Dooley operated.   They were in  a position to            prevent this injury.  Parker-Hannifin was not.                      Accordingly,  we   find  no  duty  and  affirm  the            district   court's  finding  that   Parker-Hannifin  was  not            negligent.               B.  Breach of Warranty            B.  Breach of Warranty            ______________________                      Although Rhode Island has a significant body of law            regarding  warranties,   that  law  deals   exclusively  with                                         -9-                                          9            warranties made  by "sellers."12  Here,  Dooley concedes that            Parker-Hannifin   is  not  the  seller  of  the  die  or  its            extension.  Nonetheless, he urges  this court to expand Rhode            Island  law  and find  that  Parker-Hannifin,  though a  non-            seller, had  extended a warranty  to the plaintiff.   Leaving            aside the  merits of plaintiff's highly  dubious proposition,            we  reiterate that "a plaintiff  who `selects a federal forum            in  preference to an available state forum may not expect the            federal   court  to  steer   state  law   into  unprecedented            configurations.'"    Santiago, No.  92-2263,  slip  op. at  9                                 ________            (quoting  Martel v. Stafford,  992 F.2d 1244,  1247 (1st Cir.                      ______    ________            1993)).  Here,  the reading  Dooley seeks would,  to say  the            least, be a significant expansion of state law.  Accordingly,            we affirm the  district court's grant of  summary judgment on            this issue.            C.  Strict Liability            C.  Strict Liability            ____________________                      Appellant's  strict  liability  claim   is  equally            meritless.   In  Rhode  Island, strict  liability applies  to            "[o]ne  who  sells any  product  in  a defective  condition."                         _____            Restatement (Second) Torts,   402A (1965)(emphasis supplied);                                            ____________________            12.  Under  Rhode   Island  law,  there  is   a  warranty  of            merchantability implied in contracts  where the "seller" is a            merchant with respect to  goods of the type sold.   R.I. Gen.            Laws    6A-2-314 (1992).   Express or implied  warranties may            arise when a "seller"  makes representations about a product.            R.I. Gen.  Laws   6A-2-313 (1992).  Finally a "seller" may be            held  liable for  personal injuries  which are  the proximate            result  of a  breach of  warranty.   R.I. Gen.  Laws    6A-2-            715(2)(b)(1992).                                         -10-                                          10            see  also  Ritter v.  Narragansett  Elec. Co.,  283  A.2d 255            ___  ____________     _______________________            (1971) (adopting Restatement (Second)  Torts,   402A).  Here,            as has been noted, Parker-Hannifin is not a seller of dies or            extensions.  Thus, there  is no basis under Rhode  Island law            for holding it liable in strict liability.                                         IV.                                         IV.                                         ___                                      Conclusion                                      Conclusion                                      __________                      For  the reasons  set  forth above,  we affirm  the            district court's grant of summary judgment.                        Affirmed.                      Affirmed.                      ________                                         -11-                                          11
