complaint

IN THE UNTIED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF VIRGINIA

Lynchburg Division

MICHAEL BYRNE, ))

Plaintiff, ))

v. ) Case. No. )

DURHAM WINDOWS, INC., ))

Serve: )Donald Gallick )520 Bridge Street )Raleigh, North Carolina 27602 )

)Defendant. )

COMPLAINT

Plaintiff, MICHAEL BYRNE by counsel, alleges as follows for his Complaint against

defendant, DURHAM WINDOWS, INC.

Parties

1. Plaintiff MICHAEL BYRNE (“BYRNE” or “plaintiff”) is a citizen of the

Commonwealth of Virginia. He resides at 7661 Arcadia Avenue Rustburg, Virginia 24588.

2. Upon information and belief, defendant DURHAM WINDOWS, INC.

(“DURHAM” or “defendant”) is a Delaware Corporation with its principal place of business

located at 4304 Greenbrier Road Raleigh, North Carolina 27601.

Jurisdiction and Venue

3. This court has Personal Jurisdiction over the parties pursuant to Virginia Code §§

8.01 3281.1(A)(1) and (2), as DURHAM WINDOWS, INC. transacted business in the

Commonwealth of Virginia and contracted to supply services within the Commonwealth.

4. This court has Subject Matter Jurisdiction pursuant to 28 U.S.C. § 1332.

Jurisdiction in this case is based on diversity of citizenship. The amount in controversy exceeds

$75,000.00, exclusive of interest and costs.

5. Venue is proper in this district pursuant to 28 U.S.C. § 1391.

Facts

6. On April 14, 2013, plaintiff MICHAEL BYRNE purchased a house—located in

Rustburg, Campbell County, Virginia—from Maddox Contractors (hereafter “Maddox”).

7. Maddox finished building the house when BYRNE bought it.

8. Maddox purchased all windows for the house from DURHAM WINDOWS, INC.

9. Maddox subcontracted with defendant to manufacture and install all windows for

plaintiff’s house.

10. Upon information and belief, no other contractor assisted DURHAM with the

window installation.

11. Upon information and belief, defendant fabricated all materials while installing

each of the windows for plaintiff’s house. Plaintiff does not yet know if defendant used materials

unfit or deficient for use in installing the windows.

12. On April 13, 2014, plaintiff MICHAEL BYRNE proceeded to clean a large

window installed by defendant DURHAM, WINDOWS, INC. from the inside of his house.

13. This large window—located on the second floor of his master bedroom—required

a step stool to clean.

14. Plaintiff could not clean the top of that large window without first using a stool.

15. Neither could plaintiff clean it without supporting his weight on the window

frame.

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16. While using a stool, BYRNE positioned himself to clean the top of his large

master bedroom window.

17. Plaintiff then placed his left palm on the window frame as needed for support.

18. As BYRNE touched the window frame, he heard something snap.

19. The entire window broke free from its casing.

20. Consequently, BYRNE fell one story through the window frame of his house.

21. Plaintiff’s body slammed the wood deck below as he landed.

22. Plaintiff now suffers severe and permanent physical injuries from his fall. His

total expense, including medical bills, exceeds $141,000. $51,000 of his expense represents lost

wages from unemployment due to the incident.

23. Plaintiff still receives treatment. His condition suggests continued treatment for an

indefinite period.

Count I – Strict Products Liability

24. Plaintiff repeats and re-alleges paragraphs 1-23 as if fully set forth herein.

25. Plaintiff invokes strict products liability as provided under § 402A Restatement

(Second) of Torts.

26. A strict liability cause of action for products liability under § 402A requires the

following elements:

(1) One who sells any product in a defective condition unreasonably dangerous to the consumer [may prove liable] for physical harm caused if:

(a) Seller [engages in] the business of selling such a product, and(b) [Expects to and reaches] the consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies even if(a) Seller [exercises] all possible care in [preparing and selling] its product, and(b) Consumer has not bought the product from or entered into any contractual relation with the seller.

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Restatement (Second) of Torts, § 402A.

27. Defendant DURHAM, WINDOWS, INC. designed, manufactured, sold, and/or

installed unreasonably dangerous windows for plaintiff’s house in the following ways.

(1) The windows defendant sold to Maddox and installed in plaintiff’s house deviated

from ordinary dangers of intended use by reasonable consumers—e.g., plaintiff cleaning

windows.

(2) Defendant expected the windows to reach plaintiff without substantial change in

condition by selling them for later installation within Plaintiff’s home through Maddox.

The sale planned for later installation presumes defendant expected no substantial change

in condition after sale. The later installation assumes defendant perceived no substantial

change in condition.

(3) The windows reached plaintiff without any change in condition shown since its sale to

Maddox.

(4) The windows posed an unreasonably dangerous risk to any consumer who used them

as ordinarily intended when designed, manufactured, sold and/or installed.

(5) Plaintiff used the windows in a manner reasonably intended for use—e.g., plaintiff’s

physical contact on windows while cleaning them.

(6) Defendant knew or had reason to infer its windows posed the risk of severe injury

through inspection, testing, quality control, and/or adverse event reporting.

(7) Defendant’s windows as manufactured, designed, installed, sold, and/or placed into

the stream of commerce were defective in design because:

(a) The foreseeable risks of defendant’s windows exceeded any benefits associated with

its design in proving more dangerous than expected by an ordinary customer.

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(8) Defendant failed to adequately warn or instruct that the windows were neither safe for

its intended purpose, nor adequately tested.

(9) Plaintiff suffered severe injury for a reasonably intended use—cleaning his windows.

(10) As a foreseeable, proximate cause of defendant’s defectively designed window,

plaintiff MICHAEL BYRNE suffered and continues to suffer severe permanent physical injuries.

See Infra ¶ 34.

28. As a direct result, plaintiff MICHAEL BYRNE incurs and continues to incur

expense for medical bills accompanied by lost wages connected with unemployment. See Supra

¶ 22.

WHEREFORE, plaintiff MICHAEL BYRNE respectfully requests judgment against the

Defendants for compensatory damages, together with interest, costs of suit, attorneys' fees, and

all such other relief as this Court deems proper.

Count II – Negligence


30. Defendant maintained a duty to ensure reasonable care in the safety of its

windows.

31. Defendant deviated from reasonable standards of care in that defendant:

(1) Permitted plaintiff, consumer, to use an unreasonably dangerous window—one that

broke free from its casing during such ordinary use as cleaning; and

(2) Omitted the required inspection, testing, and/or quality control to assure that its

windows posed neither:

(a) Any foreseeable risk of serious bodily harm or adverse events; nor

(b) Violated federal requirements. See Infra, Negligence Per Se, ¶ ¶ 53-61.

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32. Defendant owed plaintiff a duty to design, manufacture, install, and sell windows

reasonably safe for its intended purposes—consumer use in household cleaning.

33. Defendant had knowledge or reason to infer the foreseeable risk of serious bodily

harm from using its windows in omitting adverse event tests for safety.

34. Defendant installed plaintiff’s windows with foreseeable knowledge or reason to

infer plaintiff’s serious bodily injury in omitting reasonable safety measures. Defendant’s failure

to use reasonable care—allowing plaintiff’s use of a window that detached from its casing

without inspection—proximately caused plaintiff’s fall and injuries. See Supra ¶ ¶ 18-22.

35. As a direct, proximate cause of defendant’s negligence, plaintiff MICHAEL

BYRNE suffered and continues to suffer severe permanent physical injuries.




Count III – Breach of Contract


37. Plaintiff MICHAEL BYRNE contracted with Maddox to buy a home.

38. Maddox subcontracted with defendant DURHAM, WINDOWS, INC. to

manufacture and install plaintiff BYRNE’S windows.

39. Maddox’s subcontract thus obligated DURHAM to install BYRNE’S windows in

a good and workmanlike manner.

40. Defendant breached its subcontract by negligently causing a defectively designed,

manufactured, and/or installed window for plaintiff to detach from the casing, resulting in

plaintiff’s injuries.

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41. Defendant caused plaintiff the following damages by breaching its subcontract

with Maddox, including but not limited to the following:

(1) Costs for investigating the extent of damage;

(2) Costs associated with repair of the damage; and

(3) Any additional remedial costs to restore habitability, including other costs as

stated in Paragraph 22.




Count IV – Breach of Implied Warranty of Merchantability


43. Defendant impliedly warranted the “fair average” merchantable quality of all

materials supplied, manufactured, and installed in plaintiff’s house —including the window—

consistent with Virginia Code § 8.2-314.

44. Defendant materially breached its implied warranty of merchantability to plaintiff

in supplying a “substandard” quality window—which detached from its casing during ordinary

household cleaning. See Virginia Code § 8.2-314.

45. The subcontract between defendant and Maddox impliedly warranted plaintiff’s

reasonable expectation as a third-party beneficiary to receive windows of “fair average” quality

under Virginia Code § 8.2-314.

46. Accordingly, defendant owes plaintiff damages in breaching its implied warranty

of merchantability. See Supra ¶ 22.

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47. As a proximate result of defendant’s material breach under this section, plaintiff

suffered and continues to suffer damages, including those previously stated.




Count V – Breach of Implied Warranty of Fitness for a Particular Purpose


49. Defendant impliedly warranted the following:

(1) That all materials supplied, manufactured, and installed —including the window—

were fit for the particular purposes of ordinary consumer use—e.g., household cleaning—with

respect to plaintiff’s house;

(2) That all such materials were fit as intended for constructing plaintiff’s house;

(3) That all such materials complied with the provisions of Virginia Code § 8.2-314;

(4) That defendant knew the purpose of window installation required under contract; and

(5) That plaintiff relied on defendant’s skill to furnish suitable windows.

50. Defendant materially breached its implied warranty of fitness for a particular

purpose when the window provided to plaintiff broke free, ceasing all prior intended function.

See Supra ¶ 44.

51. Accordingly, defendant owes plaintiff damages in breaching its implied warranty

of fitness for a particular purpose. See Supra ¶ 22.

52. As a proximate result of defendant’s material breach under this section, plaintiff

suffered and continues to suffer damages, including those previously stated.

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Count VI – Negligence Per Se


54. Defendant maintained a duty not to violate the Consumer Product Safety Act by

causing “unreasonable risks of injury associated with products,” designed, manufactured,

installed, and/or sold for consumer use. See 15 U.S.C.S. § § 2051; 2061 (a)(1)-(3), (b)(1)-(2);

2064; 2072; 2301.

55. The Consumer Product Safety Commission (“CPSC”) may file in any United

States district court an action “(1) against an imminently hazardous consumer product for seizure

under (b)(2), or (2) any [manufacturer, distributor, or retailer] of the product, or (3) against

both.” See 15 U.S.C.S. § 2061 (a)(1)-(3).

56. Defendant manufactured a window that detached from its casing during ordinary

household cleaning. That same window which caused plaintiff to fall one story “through the

window frame” and sustain “severe personal injuries,” constitutes an imminently hazardous

consumer product. See 15 U.S.C.S. § § 2061 (a)(1), 2064 (a)(1).

57. Defendant maintained a duty to reasonably inspect, install, test, and assemble

windows consistent with the CPSC. Defendant’s acts and omissions which resulted in plaintiff’s

“severe personal injuries” violate 15 U.S.C.S. § 2061 under negligence per se.

58. Plaintiff MICHAEL BYRNE, consumer, belongs to a category of persons the

statute protects. Plaintiff’s “severe personal injuries” fall within a category of harm the statute

protects.

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59. Defendant, as manufacturer, falls within a category of persons to whom the

Commission may sue for its imminently hazardous windows. See 15 U.S.C.S. § 2061 (a)(1)-(3).

60. The Division of Consumer Counsel may represent plaintiff before any

government commission on all matters concerning consumer transactions violations in Virginia.

See VA Code Ann. § 2.2-517.

61. As a direct, proximate cause of defendant’s negligence, plaintiff MICHAEL

BYRNE suffered and continues to suffer severe permanent physical injuries. Such relief may

include, “a mandatory order requiring notification to purchasers, public notice,

recall/replacement of, and/or refund” for the window.




Count VII – Res Ipsa Loquitur


63. The facts as described properly invoke res ipsa loquitur.

64. Upon information and belief, plaintiff yet lacks knowledge as to whether the

materials defendant used in fabricating plaintiff’s windows remained unfit or deficient for use.

See Supra ¶ 11.

65. Upon information and belief, defendant exercised exclusive control over the

window installation, since no other contractor assisted defendant in installing plaintiff’s

windows. See Supra ¶ 10.

66. Plaintiff’s accident assumes no other inference but defendant’s negligent window

installation because windows cannot break free from a casing without direct contact. But for

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defendant’s sole installation, plaintiff would not otherwise fall through a window frame after the

window detaches from its casing to sustain injury.

67. Thus, res ipsa loquitur applies. A structural defect from defendant’s negligence

—“speaks for itself” since plaintiff’s injuries presume no other cause but to infer defendant

caused them.




Damages and Relief Requested

68. WHEREFORE, Plaintiff MICHAEL BYRNE requests the following against defendant:

(1) Compensatory damages in excess of the jurisdictional amount, including, but not limited to

pain, suffering, mental anguish, emotional distress, loss of enjoyment of life, increased risk of

health problems, and other non-economic damages in an amount to be determined at trial of this

action;

(2) Medical, rehabilitation, life care, and medical monitoring expenses, past and future lost

wages, income, and other economic damages in an amount not less than $141,000. See Supra ¶

22.

(3) Punitive damages in an amount to be determined upon proof at trial;

(4) Punitive damages;

(5) Statutory damages: CPSC – Consumer Product Safety Act:

(a) A mandatory order requiring notification to purchasers. See 15 U.S.C.S. § 2061 (b)

(1). (b) Public Notice. Id.

(c) Recall, replacement of, and/or refund for” the window. Id.

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(6) Attorneys' fees, expenses, and costs of this action;

(7) Pre -and Post Judgment Interest; and

(8) Such further relief as this Court deems necessary, just, and proper.

JURY DEMAND

The plaintiff, by counsel, demands a trial by jury.

MICHAEL W. STAIB, ESQ.

By_________________________Of Counsel

Rice, Staib, & Associates, LL0043Attorneys-at-Law1971 University Blvd.Lynchburg, Virginia 24502(434) 123-4567

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