The Motion For Partial Summary Judgment: The Litigator's Often Forgotten Tool

The discovery phase in your products liability lawsuit has been completed and it's time to decide the next course of action before proceeding to trial. One possibility, of course, is to move for summary judgment to knock out the entire case pending against your client. However, you have concluded that, despite the strengths of your case, there are enough "issues of fact" to make the exercise probably useless.

Have you considered instead a Motion for Partial Summary Judgment? Perhaps you should.

The first step is to determine whether your jurisdiction permits motions for partial summary judgment to be filed. Rule 56 of The Federal Rules of Civil Procedure specifically calls for "Partial" summary judgments in its very title. In my home state, New York's CPLR 3212(e) reads, "In any other action summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on such terms as may be just." Thus, there is little doubt that under the right reading of the law and facts, a partial summary judgment might be allowed.

Let's take a look at a fictitious, but typical, products liability case: Plaintiff suffered a serious injury when his hand was caught among the moving parts of your client's widget-making machine. Plaintiff asserts causes of action for negligence, breach of warranty and "failure to warn" due to alleged design defects and manufacturing defects in the machine.

What are some of the subject areas that could be the focus of a motion for partial summary judgement? Of course, it all depends on the law in your jurisdiction and the facts uncovered through discovery, but here are some ideas:

Failure to Warn

Defendant may be able to knock out the warnings argument by simply arguing that the hazards associated with the moving parts of the widget-making machine are so "open and obvious" that no warning is necessary. On the other hand, the Defendant might argue that discovery - specifically, the Plaintiff's deposition - established that the Plaintiff was fully aware of those risks and hazards (even if they were not "open and obvious") and therefore, the additional warning(s) would not provide any information to the Plaintiff that he already subjectively had. Lastly, the Defendant might be able to show that the "failure to warn" argument is not worthy of trial because comprehensive warnings were, in fact, provided by the Defendant in the form of the widget-making...