UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Donald Gibson

v. Civil No. 06-cv-150-PB

Opinion No. 2007 DNH 146

Mack Trucks, Inc.

MEMORANDUM AND ORDER

Donald Gibson is a truck mechanic who was injured on May 7,

2003, while repairing a spring clip (also called a “u-bolt”) on a

truck manufactured by Mack Trucks, Inc. (“Mack”). Gibson claims

that Mack is liable in negligence because the company failed to

provide warnings regarding the dangers of over-tightening (also

referred to as “over-torquing”) spring clips, the dangers of

using spring clips not manufactured by Mack, and other

unspecified dangers associated with the installation,

maintenance, use, condition, and tightening of spring clips. 

Mack has moved for summary judgment.

I. BACKGROUND

At the time of his injury, Donald Gibson was a professional

mechanic with over a decade of experience repairing large trucks. 

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On May 7, 2003, Gibson was working beneath a large Mack truck,

tightening a nut on a spring clip using a hydraulic torque

wrench. The spring clip fractured while Gibson was tightening

the nut, causing the torque wrench to lurch forward. As a

result, Gibson severely fractured his wrist. According to his

deposition, Gibson has repaired hundreds of spring clips. In all

his years as a truck mechanic, Gibson never heard of a spring

clip breaking while it was being torqued and was never warned

about this risk.

Gibson initially sued Mack on a strict liability theory

predicated on his belief that Mack had manufactured the spring

clip. In discovery, however, it became clear that the premise

underlying those claims was flawed because Mack had not

manufactured the spring clip. Therefore, on May 24, 2007, I

granted partial summary judgment in Mack’s favor with respect to

all of Gibson’s existing claims. At the same time, however, I

gave Gibson the opportunity to amend his complaint a second time

(resulting in the “second amended complaint” referred to in this

opinion and in the parties’ pleadings) to assert any remaining

claims against Mack. 

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In his second amended complaint, Gibson sets forth a common

law negligence claim, alleging that his injury was a direct and

proximate result of Mack’s breach of its duty to warn about: (1)

the risk of personal injury from the over-tightening of spring

clips; (2) the risks and hazards associated with use of a nonMack spring clip; and (3) the hazards associated with the

maintenance, use, installation, condition, and tightening of

spring clips.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “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 a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the

nonmoving party to “produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for it; if that party cannot produce such evidence, the motion

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must be granted.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95

F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.

III. ANALYSIS

To recover on his failure to warn claims, Gibson must prove

that: (1) Mack had a duty to provide certain warnings; (2) Mack

failed to provide the required warnings; and (3) Mack’s breach of

duty caused Gibson’s injuries. See Dupont v. Aavid Thermal

Technologies, Inc., 147 N.H. 706, 709 (2002); Dan B. Dobbs, The

Law of Torts §§ 363, 364, 367 (2001)(describing duty to warn and

required proof of causation). As I explain below, Gibson has

failed to proffer sufficient evidence in response to Mack’s

summary judgment motion to satisfy these requirements with

respect to any of his failure to warn claims. 

Gibson first contends that Mack is liable because it failed

to warn him that spring clips can fracture if they are overtorqued. Assuming without deciding that such a warning was

required, Gibson cannot succeed with this argument because there

is no evidence in the record to support his counsel’s conclusory

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1Both the interrogatories submitted by Gibson and the Form

8WC accident report signed by Gibson indicate that the bolt broke

at approximately 600 lbs. of torque when the required torque was

1750 lbs., and Gibson stated in his deposition that he did not

over-torque the bolt. See Def.’s Mot. for Summ. J. at ex. 2

(Form 8WC) and ex. 3 (interrogatories) (Oct. 1, 2007); Gibson

Dep. at 81-83 (Sept. 7, 2007). 

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assertion that Gibson over-torqued the spring clip.1

Gibson next argues that Mack is liable because it failed to

warn him that non-Mack spring clips are more susceptible to

fracture than Mack spring clips. This argument is fatally flawed

because there is no evidence in the record to support Gibson’s

claim that non-Mack spring clips are more likely to fracture than

Mack spring clips. 

Finally, Gibson contends that Mack is liable because it

failed to warn him of “the potential for personal injury in any

manner associated with the use of u-bolts.” Pl.’s Mem. of Law in

Opp’n to Def.’s Mot. for Summ. J. at 6 (Oct. 29, 2007). The

difficulty with this argument is that Gibson has failed to

explain how he would have avoided injury if Mack had provided the

warning he now seeks. 

Because Gibson has failed to proffer sufficient evidence to

support any of his failure to warn claims, Mack is entitled to

judgment as a matter of law. 

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V. CONCLUSION

For the reasons stated above, defendant’s motion for summary

judgment (Doc. No. 37) is granted. The clerk is directed to

enter judgment accordingly. 

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

November 30, 2007

cc: Robert M. Caplan, Esq.

Scott Ewing, Esq.

Robert Dewhirst, Esq.

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