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Conrad v. The Sherwin Williams Co.

United States District Court, E.D. Kentucky, Central Division Lexington

February 7, 2014

DANIEL CONRAD PLAINTIFF and UNIVERSITY OF KENTUCKY KENTUCKY MEDICAL SERVICES FOUND., INC. INTERVENING PLAINTIFFS
v.
THE SHERWIN WILLIAMS CO., et al., Defendants.

OPINION AND ORDER

KARL S. FORESTER, Senior District Judge.

This matter is before the Court on Plaintiff Daniel Conrad's ("Conrad") motion for summary judgment on the issue of liability. For the reasons discussed below, the motion will be denied.

I. BACKGROUND

Plaintiff Conrad was working in his father's body shop painting a vehicle for an acquaintance, Rand Hall. Conrad told Hall that the bumper needed clear coat and that the shop was out. Hall purchased spray cans of clear coat from Advanced Auto. Conrad alleges that when he pressed the nozzle on the paint can later that day, the bottom of the can flew off and the top of the can struck him in the eye. He suffered sinus and facial fractures and the loss of vision in that eye.

Conrad moves for summary judgment based on the deposition testimony of David Blythe, an engineer who was designated as a corporate representative, fact witness for BWAY Corporation. He was designated to testify regarding the design and safety testing of the spray can, any customer complaints and similar explosive incidents. DE 49-2. During the deposition, the following exchange occurred between Conrad's counsel (Q) and Blythe (A):

[Regarding the use of an aerosol can]
Q. You take the top off and you - you press the -
A. Press the button.
Q. Okay. And that's what Daniel did in this case?
A. Yes.
Q. And that use of - that he was - in the way he was using the can was rea - reasonably foreseeable to be -
MR. COLE: Objection. Now, that's a matter of proof. What - what he - if he knows - he wasn't there. He didn't see Daniel use it.
BY MR. YEAST:
Q. You were there for - you were present for Daniel's deposition?
A. Yes.
Q. And you heard how Daniel said he ...

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