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March 18, 1996

Juan Cortez, Plaintiff,
MTD Products, Inc., an Ohio Corporation, K Mart Corporation, et al., Defendants.

The opinion of the court was delivered by: BRAZIL

 In this Opinion and Order we announce our rulings on the motion for summary judgment that defendants filed on January 23, 1996. For the reasons set forth below, the motion is hereby GRANTED IN PART AND DENIED IN PART.


 Plaintiff, Juan Cortez, was injured while using a lawn mower that was manufactured by defendant, MTD Products, Inc., and sold by defendant, K Mart Corp. MTD manufactured the lawn mower in question on April 5, 1982. Def.'s Mot. for Summary Judgment at 12. Plaintiff's fiance (now wife) purchased the lawn mower at K-Mart some time in the summer of 1982. Id.

 About twelve years later, on May 30, 1994, Cortez took the mower to his neighbor's yard to cut the grass. Deposition of Juan Cortez at 64-66. After he started the mower it began to leak oil. Id. at 80-84. Plaintiff attempted to wipe the oil from the lawn mower with a rag while the mower was still running. Id. at 83-85. The rag became entangled in the blades of the mower, pulling in Cortez' hand and causing the injuries giving rise to this litigation. Id. These facts are not disputed for the purposes of defendants' motion for summary judgment.

 In this lawsuit plaintiff is pressing several different claims against the manufacturer and the seller of the lawn mower. *fn1" For purposes of the present motion, we can divide the claims into two groups: (1) those based on alleged shortfalls in the warning label that was affixed to the mower and (2) those based on the fact that the mower was not equipped with a Blade Control System (BCS). *fn2"

 At the time of sale and the time of injury the lawn mower had affixed to it a label that warned users about the potential danger of the cutting blade. See 16 C.F.R. § 1205.6 (1995). Counsel for plaintiff conceded at oral argument that the label on this mower complied with the federal regulations (that indisputably were in effect at the time of manufacture) that prescribed requirements for warnings about the dangers associated with lawn mower blades. And defendants concede that the lawn mower that Mr. Cortez was using when he was injured was manufactured and sold without any blade control system.

 The contention pressed by defendants in their motion for summary judgment is that all of the plaintiffs claims that are based on state common law are preempted by federal regulations.

 Does the Consumer Product Safety Act Preempt All State Common Law Claims?

 We begin by acknowledging that there is a presumption against preemption. CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732, 1737, 123 L. Ed. 2d 387 (1993). The Supreme Court has admonished that state laws should not be superseded except when "the clear and manifest purpose of Congress" was preemptive. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947). Where the pertinent federal act contains a preemption clause the courts should attempt to ascertain Congress' intent about the scope of preemptive effect from the express language of the preemption clause. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992).

 In this case we look to the Consumer Product Safety Act (CPSA), under which the lawn mower regulations are promulgated, to determine whether federal regulations preempt the instant state common law claims. 15 U.S.C.A. §§ 2051-2084 (West 1995). The CPSA contains a preemption clause which reads:

(a) Whenever a consumer product safety standard under this chapter is in effect and applies to a risk of injury associated with a consumer product, no State or political subdivision of a State shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, packaging, or labeling of such product which are designed to deal with the same risk of injury associated with such consumer product, unless such requirements are identical to the requirements of the Federal standard.

 15 U.S.C.A. § 2075(a) (West 1982) (emphasis added).

 The wording of this preemption clause makes it apparent that Congress intended to preempt positive enactments (statutes, regulations issued by administrative agencies, etc.) by states that address the same risks of injury that are addressed by operative federal standards. See Cipollone, 505 U.S. at 518-24. The legal norms under which plaintiff attempts to proceed here, however, are not positive enactments; rather, they emerge from the common law. And courts have found it more difficult to decide whether federal statutes were intended to preempt not only positive enactments, but also state common law.

 It is clear, from the authorities, that Congress has preempted state common law through some statutes. Cipollone, 505 U.S. at 521-23. What defendants' motion forces us to determine is whether Congress intended, through the CPSA, to preempt the particular common law claims that plaintiff presses here: the claims based on risks associated with warning labels and the claims based on risks associated with the absence of blade control systems. For the reasons described below, I find that Congress intended to preempt only the common law claims based on allegedly inadequate labeling and not the claims based on the absence of a blade control system.

 Cipollone and CSX

 In Cipollone v. Liggett Group, Inc., 505 U.S. 504, 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992), the Supreme Court wrestled squarely and at length with issues related to the preemptive effect of federal law on state common law claims. The high court was called upon to ascertain the reach of Congress' preemptive intent in two versions of a statute regulating cigarette labeling, one enacted in 1965 and the other in 1969. The 1965 version of the preemption clause was visibly narrower, only prohibiting states from requiring cigarette manufacturers to add warnings to packaging or advertising "other than the statement required by [the] Act." Id. at 514. A majority of the Justices on the Court held that Congress intended this ...

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