Sears seeks to have circular saw suit dismissed

By Kelly Holleran | Nov 26, 2008

BLUEFIELD – Sears has requested the federal court drop a complaint a McDowell County man filed against the company after his fingers were lacerated while he was using a circular saw purchased from the store.

But Franklin Willard claims the store was liable for his injuries because the Craftsman saw was defective when he bought it from the Sears in the Mercer Mall.

While Willard was cutting wood with the saw on Nov. 1, 2006, at his home in Big Sandy, his right index finger and right middle finger came into contact with the revolving blade of the saw, according to the complaint he filed against Sears and two other corporations on Sept. 22 in McDowell Circuit Court.

Willard alleges he was injured because the lower blade guard was stuck in the open or exposed portion due to a Craftsman label on the upper blade guard that had started to peel off and became detached.

In turn, that blocked the lower blade guard from returning to the closed or protected position, the suit states.

Willard claims he was using the saw as it was intended, and it was due to Sears's and the other companies' negligence that his fingers were lacerated.

However, Sears argues Willard was not using the saw for its intended purpose, so it should not be held liable.

In addition, the store claims it should not be held liable for Willard's injuries because it did not cause Willard's injuries.

"Defendant, Sears, Roebuck and Co., says that the injuries and damages about which the Plaintiff complains were proximately caused or contributed to by independent, supervening, or intervening causes other than an act or omission on the part of Defendant, Sears, Roebuck and Co.," an answer to the complaint states.

Willard's injuries were caused because of his own negligence, not Sears's, according to the answer.

"The injuries, if any, resulting from the occurrence upon which the Complaint is based is the result of a pure accident and none of the parties were negligence," the answer states.

Willard claims that after the incident occurred, he received an "Important Safety Notice" from Sears.

It described the same potential safety hazard – the peeling label – that caused Willard's injuries, according to the complaint he filed.

When Willard bought the saw, though, it was accompanied by no warnings, the suit he filed states.

He claims Sears and the other companies "breached their expressed and implied warranties" because they sold a defective product and performed no inspection beforehand to check for defects.

Sears, however, claims it did not breach its duty to warn Willard of a risk because it did not know the saw posed a risk.

In addition to his lacerated fingers, Willard suffered injury to his digital nerve with neuroma and severe, painful, permanent, disabling and disfiguring injuries to his fingers, according to the suit.

He has also incurred medical expenses of $2,159.04, was sore and in pain for a great period of time and suffered great pain of the body and mind, the complaint states.

Willard claims his injuries are painful, disabling, disfiguring and emotionally upsetting and have caused his ability to enjoy life to be greatly diminished.

Willard is seeking unspecified damages to compensate him for his injuries, plus prejudgment interest and costs.

Sears requested the case be removed from McDowell Circuit Court to United States District Court because Willard is seeking sums in excess of $75,000 and because the case involves residents of different states.

It also requested the case be dismissed because Willard failed to state a claim upon which relief can be granted.

Willard will be represented by Lane O. Austin of Sanders, Austin, Flanigan and Aboulhosn in Princeton.

Sear will be represented by W. Michael Moore, Rita Massie Biser and Tonya P. Mullins of Moore and Biser in Charleston.

U.S. District Court case number: 1:08-1210

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