WEST VIRGINIA RECORD

CHARLESTON – A couple claims a lawsuit they filed against Deere and Company in which they blame the company for designing a tractor that severed the man's fingers deserves to remain in Lincoln Circuit Court.

In their complaint filed in Lincoln Circuit Court, Carl David Harper and Jana Harper allege Carl Harper was mowing a lawn using a John Deere riding lawnmower at Jacquelyn A. Garrett's home in Culloden on June 28, 2007.

As Carl Harper was mowing around a dead tree, the lawnmower toppled over an embankment and threw Carl Harper from his seat, according to the complaint he filed Jan. 2.

"At the time of Plaintiff Carl David Harper's accident, the two-position switch mounted under the driver's seat of the lawnmower (known as the 'kill-switch') was defective and/or inoperable, and failed to disengage the motor of the lawnmower," the suit states. "As a direct and proximate result of the defective and/or inoperable kill switch, the motor of the lawnmower continued to turn the blades of the lawnmower, allowing the lawnmower blades to strike Mr. Harper in the right hand, severing several of his fingers and his thumb and removing other tissue from his hand."

Garrett purchased the subject lawnmower in 1995, and Carmichael Equipment had serviced the riding mower multiple times.

Originally, the Harpers named Deere and Company and Carmichael Equipment as defendants in the lawsuit. However, in June, the Harpers settled with Carmichael Equipment, leaving Deere and Company as the sole defendant.

The couple blames Deere and Company, which directed Garrett to have her lawnmower serviced at Carmichael Equipment, for failing to provide competent and skilled maintenance and repair services. In addition, the company failed to provide its customers with adequate warnings about the dangers of riding lawnmowers.

"Prior to June 28, 2007, Defendant John Deere and Defendant Carmichael did know, or in the exercise of reasonable care should have known, that many individuals were being injured and killed through their use and operation of riding lawnmowers, including lawnmowers like or similar to the one involved in Plaintiff Carl David Harper's accident," the suit states.

In their complaint, the Harpers are seeking compensatory damages, plus pre- and post-judgment interest, costs, attorneys' fees and other relief the court deems just.

However, Deere and Company denies the Harpers' claims against it and says the couple should not be awarded any damages.

"Any hazards associated with the use of the product were open, obvious and known," Deere and Company says.

Any injuries Carl Harper incurred resulted from his misuse of the product and were not due to the company's negligence, its answer says.

"The subject product was designed and manufactured and/or distributed in conformity with the applicable state of the art, industry standards and/or consumer expectations, and Deere acted as a reasonably prudent manufacturer," the company says.

Deere and Company is asking the court to dismiss the Harpers' complaint with prejudice, to enter a judgment in favor of Deere and Company and to award Deere its costs of defense and other relief the court deems just.

Deere and Company removed the case to federal court, saying that because a diversity of citizenship exists between it and the Harpers and because the couple is seeking more than $75,000, the lawsuit belongs in U.S. District Court.

But the Harpers say Deere and Company is only attempting to delay litigation by removing the case to federal court.

Deere and Company should have removed the case to federal court within 30 days after learning about the Harpers' suit against it, the plaintiffs claim. Instead, Deere waited until Oct. 14 to remove the case.

"Defendant Deere and Company knew or should have known that this action filed in January, 2009, was initially removable; its failure to remove at that time bars removal," the Harpers' motion for remand states. "Even if Deere did not know that the action was initially removable, removal after its active participation in the State Court proceedings would give Deere an unfair tactical advantage waste judicial resources, and undermine the statute's third-day procedural requirement."

The Harpers will be represented by Brent K. Kesner and by Sara A. Jones of Kesner, Kesner and Bramble in Charleston.

Deere will be represented by David K. Hendrickson and Lora A. Dyer of Eckert, Seamans, Cherin and Mellott of Charleston and by Mark E. Gebauer of Harrisburg, Pa.

U.S. District Court case number: 2:09-cv-1122