Opinion
99 Civ. 5166 (RCC)
March 5, 2002
Opinion Order
Plaintiff, Robert Hamm, brought this personal injury action claiming he was injured by an allegedly defective wooden pallet on which Defendant Willamette Industries, Inc. ("Willamette") shipped its printer paper rolls. By separate motions, Defendants Willamette, Yerger Wood Products, Inc. ("Yerger"), the pallet manufacturer, and Keystone Pallet Lumber Co., Inc. ("Keystone"), the pallet wholesaler, move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Alternatively, Willamette moves for summary judgment on its indemnity cross-claims against Yerger and Keystone. Similarly, Yerger moves to dismiss all cross-claims of the other Defendants. For the reasons explained below, summary judgment is granted in favor of all Defendants.
I. Background
Unless otherwise noted, the following facts are not in dispute. In June 1997, Plaintiff worked as a computer operator at Smith Barney in lower Manhattan and was responsible for operating, maintaining and loading its high speed printers. Plaintiff loaded the printers with Willamette's printer paper rolls. Defendant Yerger manufactured the pallets on which the paper was stored and shipped and Defendant Keystone sold Willamette the pallets for that purpose. The pallets were 51 x 40 inches in size with a flat wood surface covered with supports and eight wood slats that were nailed down to form a platform. Starting from either end and moving toward the middle, the slats were spaced 1/2 inch, 3 1/4 inches and 2 1/4 inches apart, with no space in between the two middle slats. Mar. 22, 2001 Goodovitch Aff. Ex. H (product specification); Aug. 25, 2000 Hamm Dep. at 79. Three Willamette paper rolls, each about five feet tall, were placed on each pallet with an aggregate weight of approximately 2000 pounds. Willamette 56.1 Statement ¶ 5; Nov. 9, 2000 John Seibert Dep. at 54; Nov. 14, 2000 Donald Stout Dep. at 10; Nov. 15, 2000 James Yerger Dep. at 53-54. The paper rolls were wrapped in plastic and strapped down on the pallet with approximately one foot of space between each roll. Aug. 25, 2000 Hamm Dep. at 79. The rolls were then secured to the pallet with plastic straps. Id. at 82. Additionally, chocks, or wedges, were placed under the rolls to keep each in place. The pallets were tested to support a maximum weight of 6,377 pounds. Willamette 56.1 Statement ¶ 6.
Plaintiff did not file a Rule 56.1 statement in response to Willamette's. See U.S. Dist. Ct. Rules, S.D.N.Y. Rule 56.1(c) ("[A]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.").
The purchase orders between Willamette and Keystone contained an indemnity paragraph which stated: "The seller will indemnify, defend, and hold harmless the buyer from all claims of loss, liability, and expense (including reasonable attorney fees, fines, and charges) that arise from or relate to breach of the contract, including any warranty, the rightful claim of any third person by way of infringement or the like, and property damage or personal injury that is caused by any defect (except defects resulting from any goods or item thereof that the buyer designs) or nonconformity in the goods or services. Rubin Aff. Ex. H.
On June 13, 1997, Plaintiff, who is six feet tall and weighed approximately 300 pounds at the time, injured himself while attempting to remove a roll of paper from the pallet to a transport cart. Aug. 25, 2000 Hamm Dep. at 41. Hamm removed the first roll and had stepped onto the pallet, in front of the roll, with both feet to get the second roll moving. Id. at 124-26. Once the roll started to move, Hamm placed his left foot back on the floor, to the side of the pallet. Id. at 126. His right foot remained on the pallet, on the left side, about an inch from the roll. Id. at 127. Plaintiff claims that he was trying to pull the roll off the pallet when his right foot broke through a wood slat. Id. at 128. The pallet in question was not preserved and no party, including Plaintiff, has had the opportunity to examine it. Id. at 146; Willamette 56.1 Statement ¶ 13. Plaintiff does not remember how much space, if any, was between the slats. He believes that his foot went through wood and not a space because he heard the wood cracking. Hamm Aug. 25, 2000 Dep. at 129. The roll tilted over, fell off the pallet and landed on Plaintiff's right thigh. Id. at 112. According to Willamette, Hamm was able to stand up and walk away, although he apparently had surgery to repair his anterior cruciate ligament at some later time. March 22, 2001 Rubin Aff. ¶ 8. Plaintiff offers no evidence regarding his injury.
Plaintiff and a co-worker, Warren Tucker, both testified that they were never warned to not step on the pallets. Dec. 1, 2000 Hamm Dep. at 176; Feb. 26, 2001 Tucker Dep. at 31, 33-34. However, a computer-assisted pallet design system (PDS) had notified Yerger that the pallets should not be stepped on. This warning was passed on to Keystone in April 30, 1997, but most likely never passed on to Willamette. Further, Tucker who worked as a computer operator for approximately ten years, testified that he was aware of four instances in which a pallet broke, including once when he put his foot through a slat by stepping on a pallet on the floor instead of walking around it. Feb. 26, 2001 Tucker Dep. at 20-22.
On behalf of Defendant Yerger, Mr. Yerger testified as follows:
Q: "Could you read the last sentence that begins, `Under no circumstance.'" . . .
A: "Under no circumstance should any person stand, step or lean upon them or otherwise use them for support.'"
Q: "Was it a concern of Yerger that these pallets would be subject to a person standing, stepping or leaning upon them or otherwise using them for support?"
A: "Yes, it was a concern . . .
Q: "Is it an intended use of those pallets and more particularly, these deck boards to withstand the pressures of stresses associated with someone stepping down on the deck board?"
A: "No, they are not."
Q: "Why not?"
A: "Because they could get their foot jammed between the deck board.".
Q: "Would standing on a deck board, in your view, be a misuse of a pallet?"
A: "Yes."
Q: "Would stepping on a pallet, in your view, be a misuse of the pallet?"
A: "Yes." . . .
Q: "You don't know if the PDS study was ever sent to Willamette; do you?"
A: "No."
Q: "To your knowledge it was not sent to Willamette, am I correct?"
A: "That's correct."
Nov. 15, 2000 Yerger Dep. at 142-46.
Willamette provided an instruction sheet with every roll of paper regarding proper removal of the rolls from the pallet. Willamette 56.1 Statement ¶ 9; Mar. 22, 2001 Rubin Aff. Ex. G. The instruction sheet warned, in part:
Rolls are heavy — Handle with care.
Check pallet cross boards carefully before cuffing straps. Despite high quality construction, pallets may become loosened or damaged during handling or transporting.
Safety Procedures:
A. Make sure pallets are level before cutting tie down straps through cores.
B. Cut each strap carefully as the rolls are being removed from the pallet.
C. Remove the chock carefully. You may gently rock the roll to remove the chock.
D. Do not allow rolls to lean — if a roll tips, stand clear.
E. Do not move the pallet with rolls that are unstrapped.
F. Loose rolls can cause injury if not handled carefully.
Id. Plaintiff testified that he was familiar with the instruction sheet and that he had read it prior to his accident. Willamette 56.1 Statement ¶ 11; Aug. 25, 2000 Hamm Dep. at 66. However, he did not follow the instructions and did not check the pallet slats to see if there were any breaks, knots, other damage or anything unusual about them on the day of his accident. Aug. 25, 2000 Hamm Dep. at 118-19. In fact, he testified that he did not customarily check the pallets before he removed a roll.Id. at 119.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate if the entire record demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986); see also Fed.R.Civ.P. 56(c). The Court must resolve any ambiguities and draw all inferences in favor of the non-moving party. Gibson v. Am. Broad. Cos., 892 F.2d 1128, 1132 (2d Cir. 1989). The moving party bears the burden of demonstrating the absence of a material, factual dispute. Fed.R.Civ.P. 56(e). Where the moving party demonstrates that if the case went to trial there would be no competent evidence to support a judgment for its opponent, the moving party has met its burden. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249. Once the movant meets its burden, the non-moving party must "set forth specific facts showing that there is a genuine need for trial." Fed.R.Civ.P. 56(e). The non-moving party must make a showing sufficient to establish the elements essential to the party's case. Gonzalez v. Morflo Indus., Inc., 931 F. Supp. 159, 163 (E.D.N.Y. 1996) (granting summary judgment to defendants in failure to warn products liability case). The mere existence or possibility of a factual dispute is not dispositive in determining a summary judgment motion. Knight v. United States Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986). Rather, only when the facts in dispute are material is summary judgment inappropriate.Anderson, 477 U.S. at 248.
B. Products Liability
In his complaint, Plaintiff alleges Defendants are liable based on negligence, breach of warranty and strict liability. To succeed on any products liability theory, a plaintiff must demonstrate that he was injured by a defective product. A defect in a product may consist of a mistake in manufacturing, an improper design or the inadequacy or absence of a warning. Codling v. Paglia, 32 N.Y.2d 330 (1973); Micallef v. Miehle Co., 39 N.Y.2d 376 (1976); Torrogrossa v. Towmotor Co., 44 N.Y.2d 709 (1978). To recover, Plaintiff must demonstrate that the alleged defect was a substantial factor in bringing about the injury. Additionally, at the time of the accident, the Plaintiff must show that he was using the product for the purpose and in the manner intended or in a reasonably foreseeable manner. Codling v. Paglia, 32 N.Y.2d 330 (1973).
Where a Plaintiff admits that he received no verbal or written warranty of any type, the manufacturer is entitled to summary judgment on a claim for breach of express warranty. Moy Acres Farms Inc. v. Agway Inc., 623 N.Y.S.2d 338 (3d Dep't 1995). The inquiry for breach of implied warranty is whether the product was "fit for the ordinary purposes for which such goods are used." Denny v. Ford Motor Co., 87 N.Y.2d 248, 258 (1995). A plaintiff's recovery depends on a showing that the product was not minimally safe for its expected purpose, regardless of the feasibility of making the product safer. Id. The seller is liable even if it could not have discovered the defect. However, the seller may be indemnified by the manufacturer. Langford v. Chrysler Motors Corp., 373 F. Supp. 1251, 1255 (E.D.N.Y. 1974).
Anyone in the manufacturing, distributing or selling chain of a defective product is strictly liable to any person injured if the defect was a substantial factor in bringing about injury, provided that: 1) at time of occurrence, the product was being used for the purpose and in the manner normally intended, 2) even with the exercise of reasonable care, the plaintiff would not have discovered the defect and perceived the danger; 3) even with the exercise of reasonable care, the Plaintiff would not have otherwise averted his injury. Codling v. Paglia, 32 N.Y.2d 330, 342 (1973); Joseph v. Yenkin Majestic Paint Corp., 690 N.Y.S.2d 611 (2d Dep't 1999). Where distribution of an allegedly defective product is incidental to a defendant's regular business, the principles of strict products liability have no relevance. Sukljian v. Charles Ross Son Co., 69 N.Y.2d 89 (1986).
To make a prima facie case of design defect, a plaintiff must demonstrate that the manufacturer acted unreasonably in designing and marketing a product that was not reasonably safe and that the defective design was a substantial factor in causing the plaintiff's injury. Voss v. Black Decker Manufacturing Co., 59 N.Y.2d 102 (1983). A product is not reasonably safe if a reasonable person, who knew of the defect at the time the product was manufactured, would have concluded that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner. Id. at 107.
In his motion papers, Plaintiff asserts that Defendants were negligent in not providing an adequate warning for the pallet. He has not offered any evidence in support of any other theory.
"A manufacturer is subject to liability where it has: (1) reason to know that the product it markets is likely to be dangerous for the use for which it is supplied; (2) no reason to believe the user will realize its dangerous condition; and (3) failed to exercise reasonable care to inform the user of the facts which make the product dangerous." Gonzalez v. Morflo Indus. Inc., 931 F. Supp. at 167-68 (E.D.N.Y. 1996) (citingKerr v. Koemm, 557 F. Supp. 283 (S.D.N.Y. 1983)). Thus, a manufacturer or seller with actual or constructive knowledge of a product's danger has a duty to warn of the danger involved in the foreseeable use or misuse of the product. Grzesiak v. Gen. Elec. Co., 68 N.Y.2d 937 (1986). The duty to warn extends to the ultimate purchaser of the product, employees of the purchaser and third persons exposed to foreseeable and unreasonable risk of harm by failure to warn. McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62 (1962).
With respect to a manufacturer's duty to warn, the Second Circuit recently explained that in New York, "`a limited class of hazards need not be warned of as a matter of law because they are patently dangerous or pose open and obvious risks.'" Burke v. Spartanics Ltd., 252 F.3d 131, 137 (2d Cir. 2001) (quoting Liriano v. Hobart Corp., 92 N.Y.2d 232 (1998)). "This is just another way of saying that a reasonable person would not warn of obvious dangers, i.e., those harms that most all people know about. As a result, to these risks, it cannot be negligent to fail to warn." Id. Whether a danger posed by a product is open and obvious, for purposes of this exception to the duty to warn, is most often a jury question, but where only one conclusion can be drawn from the established facts, the issue of whether the risk was open and obvious may be decided by the court as a matter of law. Lirano v. Hobart Corp., 92 N.Y.2d 232 (1998).
In Burke v. Spartanics Ltd., the Second Circuit affirmed a jury verdict in favor of the defendant manufacturer as well as the district court's subsequent denial of the plaintiff's motion for judgment as a matter of law. The plaintiff argued that the trial court had improperly instructed the jury that there was no duty to warn if the risks were obvious or if the plaintiff was aware of the risks. Burke v. Spartanics Ltd., 252 F.3d at 137. The Second Circuit held that there is no duty to warn of obvious risks Id.; see also id at 138 ("[C]ourts treat obvious danger as a condition that would ordinarily be seen and the danger of which would ordinarily be appreciated by those who would be expected to use the product."). However, a plaintiff's individual awareness of risks does not negate the duty to warn. Id. at 138 (distinguishing the separate issues of "`open and obvious risks' exception, which goes to the manufacturer'sduty [and] the analytically distinct issue of whether a putative breach of that duty was a cause of this plaintiff's injury) (emphasis in original). Yet, failing to warn an individual plaintiff with awareness of the risk will not result in liability if giving the warning would not have made a difference. Id. at 139. Thus, although the trial court's instruction was erroneous, the error was harmless. The court held that the plaintiff's awareness "fully negate[s] any causal connection between the absence of a . . . warning and [the plaintiff's] injuries." Id. at 140.
As a Defendant's liability will not arise from a breach of duty alone, Plaintiff must show, in addition, that "`the failure to warn [was] a substantial cause of the events which produced the injury.'" Id. at 139. (quoting Billsborrow v. Dow Chem., 177 A.D.2d 7, 16 (2d Dep't 1992)). "[W]here the injured party was fully aware of the hazards through general knowledge, observation or common sense, . . . lack of a warning about that danger may well obviate the failure to warn as a legal cause of an injury resulting from that danger." Id. (quoting Liriano, 677 N YS.2d at 764); Gonzalez v. Morflor Indus., Inc., 931 F. Supp at 168 ("[W]here a warning would not have increased the particular user's awareness of the danger, failing to warn cannot be said to have been the proximate cause of the accident."). "Thus, it may well be the case that a given risk is not `obvious,' in the sense of precluding any duty to warn, but that nevertheless, because the risk was well understood by the plaintiff, a warning would have made no difference." Id. at 139.
The Court finds this is such a case. Even assuming Defendants were negligent in failing to warn Plaintiff to not step on the pallets, Plaintiff must still demonstrate that the lack of warning was a proximate cause of his injuries. This he cannot do. In an affidavit submitted with his response papers, Plaintiff claims he did not know the pallets could break by stepping on them and that he assumed the pallets would handle his weight since they were strong enough to handle the weight of the paper rolls. Hamm Aff. at ¶ 6, March 30, 2001 Kremins Aff. Ex. D. Yet Hamm's deposition testimony belies his self-interested affidavit and he cannot claim a factual dispute regarding causation. Hamm testified that he was aware of a situation in which a co-worker of similar weight broker through a wood slat of a pallet and injured his leg:
Q: "Were you aware of any other accidents with these rolls at any time when you worked at Smith Barney from 1994 to the day of your accident?" . . .
A: "Yes."
Q: "What other accident were you aware of?"
A: "I was aware of one employee that had sprained his leg stepping through a pallet."
Q: "When you say injured his leg by stepping through a pallet, what do you mean by `stepping through a pallet?'". . .
A: "It went through the wood. The wood broke and his foot went in and he was out for four weeks.". . .
Q: "Do you know the name of this other person?"
A: "Warren Tucker.". . .
Q: "As a result of the incident allegedly involving Mr. Tucker, were you aware a slat on a pallet may break upon being stepped on?"
A: "This is what I heard. As I wasn't there when it happened like I said." Q: "As a result of that, you were aware it was a possibility that they may break?"
A: "I guess, yeah. I never experienced myself, so . . ."
Q: "Did you take personally any precautions to prevent a slat from breaking when you stepped on it?"
A: "No, I really didn't notice."
Hamm Dep. at 72-75; see also Tucker Dep. at 6 (testifying he weighed approximately 300 pounds in 1997). Despite not being given an express warning to not step on the pallets while unloading the paper rolls, Hamm knew the pallets could break under the weight of a 300 pound man. He was aware of the risks, which therefore "negate[s] any causal connection between the absence of a . . . warning and his injuries." Burke v. Spatanics Ltd., 252 F.3d at 140; see also Smith v. Stark, 67 N.Y.2d 693 (1986) (finding no causation because plaintiff must have known based on his general knowledge of pools, his prior observations and common sense that the area into which he dove contained shallow water); McMurry v. Inmont Corp., 264 A.D.2d 470 (2d Dep't 1999) (holding that in light of plaintiff's experience, "a warning would not have added anything to the appreciation of the hazard"). Moreover, Hamm did not heed the warnings that were provided with the paper rolls regarding inspecting the pallet's slats. He testified that he did not check the pallet's slats on the day of his accident, nor had he been in the habit of doing so before June 13, 1997. "This is not a case in which a usually careful employee uncharacteristically forgot to take a safety precaution. . . ." Burke v. Spartanics Ltd., 252 F.3d at 140. Thus, since Hamm ignored the warning that was provided, he certainly cannot demonstrate that a lack of another warning was the proximate cause of his accident. He has offered no evidence from which a reasonable juror could surmise otherwise. Summary judgment is granted in favor of Defendants on Plaintiff's failure to warn claim. Summary judgment is also granted in favor of all Defendants on Plaintiff's manufacture and design defect, breach of warranty and strict liability claims because Plaintiff has not offered any evidence or argument in support of any of these theories. Gonzalez v. Morflow Indus. Inc., 931 F. Supp. at 163 (instructing that nonmoving party must establish essential elements of his case to defeat a summary judgment motion).
The Court notes it has not been provided with the portions of Tucker's deposition in which he testifies to spraining his leg as a result of stepping through a pallet.
III. Conclusion
Summary judgment is granted on behalf of all Defendants. The Clerk of the Court is directed to close the case.
So ordered.