Opinion
No. 00 Civ. 8713 (JCF).
September 30, 2004
MEMORANDUM OPINION AND ORDER
M.D. Monirul Islam suffered severe injuries to his hand as he was attempting to clear an obstruction from the chute of an ice bagging machine during the course of his employment. He brings this action against Matthiessen Equipment Company ("Matthiessen") and Modern Tour, Inc. ("Modern Tour"), asserting claims of negligence and strict product liability in connection with the design and manufacture of the machine. Although the case was initially filed in New York State Supreme Court, Modern Tour removed it to this Court on the basis of diversity jurisdiction. The parties consented to refer the case to me for all purposes, including dispositive motions and trial, pursuant to 28 U.S.C. § 636(c).
Discovery has been completed, and Matthiessen and Modern Tour have each moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Matthiessen argues that the evidence shows that the machine was safe when it was manufactured but that it was materially altered at some point before Mr. Islam was injured. Modern Tour joins in that argument and also contends that, at any rate, it has no responsibility for any design or manufacturing defect, since it merely bought certain assets of Matthiessen long after the accident at issue. For the reasons that follow, the defendants' motions are granted.
Background
Prior to being injured, the plaintiff was employed by MT Pretzel, Inc. ("MT") as a food vendor. (Complaint ("Compl."), ¶ 5). MT dispatched mobile vending units to parks and other locations. (Compl., ¶ 5). The ice bagging machine in question was owned by MT and had been manufactured by Matthiessen. (Compl., ¶ 6).
Modern Tour named MT as a third-party defendant in this action, but those claims were previously dismissed by stipulation.
On October 9, 1997, the plaintiff was preparing to transfer ice from the ice bagging machine to his food cart. (Compl., ¶¶ 8-9; Deposition of M.D. Monirul Islam ("Islam Dep."), attached as Exh. F to Declaration of Jeffrey D. Fippinger dated March 31, 2004 ("Fippinger Decl."), at 82). He noticed that ice was stuck in the machine's chute. Since the machine was quiet, the plaintiff believed that it was off, so he began to remove the obstruction with his hand However, as he attempted to do so, the machine began operating, and its blade mangled Mr. Islam's right hand, amputating part of his index finger and lacerating his middle finger. (Compl., ¶ 9; Islam Dep. at 82).
Matthiessen acknowledges that it manufactured the ice bagging machine. (Deposition of Alan Duane Gordon ("Gordon Dep."), attached as Exh. G to Fippinger Decl., at 6, 8). At the time of manufacture and sale, the machine was equipped with a guard at the opening of the chute. (Gordon Dep. at 16). Likewise, as originally constructed, it could only be activated by using a foot pedal. (Gordon Dep. at 22). As sold, it included warning stickers that cautioned, among other things, "Keep hands out! Machine can mutilate." (Gordon Dep. at 96; Letter of L.R. Vreugde dated March 3, 2000 ("Vreugde Report"), attached as Exh. H to Fippinger Decl., Fig. 4A).
This witness' name is spelled "Gorden" in the deposition transcript.
According to Mr. Islam, the machine was in a different condition at the time of the accident. First, he testified that there was no guard in place on the chute. (Islam Dep. at 126-27). Next, he noted that the machine had no foot pedal; rather, it was activated by two switches: one on the wall, and a toggle switch located on the machine itself. (Islam Dep. at 61, 64-65, 100, 131). Finally, Mr. Islam testified that on the date of the accident, no warning signs were displayed on the machine. (Islam Dep. at 60, 120-21).
The plaintiff's expert, L.R. Vreugde, examined the ice machine on February 16, 2000. (Vreugde Report at 1). At that time, the machine was similar in condition to when it was sold in that it contained a guard on the chute and warning signs. (Vreugde Report at 2). However, Mr. Vreugde noted that a switch had been added at the front of the machine. (Vreugde Report at 2). He concluded that as long as the machine included the safety features and warnings that were present at the time of the inspection, it was safe:
1. The present ice delivery system appears to be provided with a design feature which minimizes the risk to the person taking delivery of the ice. The delivery door makes it nearly impossible to reach into the ice compartment.
2. The ice delivery system has a large number of safety and warning labels which have been located appropriately. The labels are large and easy to read.
3. In my opinion, the present machine is safe to use when attention is paid to the safety labels.
4. As described by Mr. Islam, the machine in use at the time of his accident did not have the safety features and warning labels of the current machine. If this information is indeed correct, that machine would have been less safe to use.
(Vreugde Report at 2).
Discussion
A. Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999);Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact."Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts");Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible"). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)).
B. Choice of Law
As a threshold issue, it must be determined what law governs the plaintiff's tort claims.
A federal court exercising diversity jurisdiction applies the substantive law of the state in which it is sitting, including that state's conflict of law rules. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938); Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc. 933 F.2d 131, 137 (2d Cir. 1991) "New York applies an `interest analysis' to its choice of law, under which the law of the jurisdiction having the greatest interest in the litigation controls." Softel, Inc. v. Dragon Medical and Scientific Communications, Inc., 118 F.3d 955, 967 (2d Cir. 1997) (citation omitted).
In a tort case, the significant contacts "are almost exclusively, the parties' domiciles and the locus of the tort." Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 197, 491 N.Y.S.2d 90, 95 (1985). "Where the parties are domiciled in different states, the locus of the tort will almost always be determinative in cases involving conduct-regulating laws." Krock v. Lipsay, 97 F.3d 640, 646 (2d Cir. 1996) (citation omitted);accord Padula v. Lilarn Properties Corp., 84 N.Y.2d 519, 522, 620 N.Y.S.2d 310, 311-12 (1994). Here, the plaintiff is domiciled in New York, while Modern Tour is an Ohio corporation and Matthiessen is located in Texas. (Compl., ¶¶ 1, 2, 3). The laws of negligence and strict product liability regulate conduct rather than allocate loss, see In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 230 F. Supp. 2d 376, 390 (S.D.N.Y. 2002); Richardson v. Michelin North America, Inc., No. 95-CV-0760, 1998 WL 135804, at *4 (W.D.N.Y. March 18, 1998), and the law of New York — where the accident occurred — therefore governs these claims.
C. Material Alterations
"Under New York law, it is well-settled that a manufacturer is not responsible for injuries caused by its product where a third party has substantially modified the product after it left the manufacturer's control, and the modification has caused injury."Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 87 (S.D.N.Y. 2001) (citing Robinson v. Reed-Prentice Division of Package Machinery Co., 49 N.Y.2d 471, 426 N.Y.S.2d 717 (1980));see also Cacciola v. Selco Balers, Inc., 127 F. Supp. 2d 175, 185-86 (E.D.N.Y. 2001). Thus, "[w]hile the manufacturer is under a nondelegable duty to design and produce a product that is not defective, that responsibility is gauged as of the time the product leaves the manufacturer's hands." Robinson, 49 N.Y.2d at 479, 426 N.Y.S.2d at 720 (citations omitted).
By these standards, Matthiessen cannot be held liable for design or manufacturing defects. Matthiessen presented uncontroverted evidence that the ice bagger was built and sold with a safety guard at the chute and a foot pedal for activating the machine. According to the plaintiff's own expert, a machine with these features is safe; indeed, it is "nearly impossible" to reach into the ice compartment when the guard is in place.
Of course, the plaintiff alleges that the machine was not in this condition at the time of the accident. But that creates no liability for Matthiessen in the absence of any evidence either (1) that Matthiessen had sold the machine in this unsafe state or (2) that it had purposely manufactured the machine so as to permit use without the safety features. See Colon, 199 F. Supp. 2d at 87; Lopez v. Precision Papers, Inc., 67 N.Y.2d 871, 873, 501 N.Y.S.2d 798, 799 (1986). The plaintiff has proffered no such evidence.
D. Failure to Warn
Nevertheless, Mr. Islam argues that his failure to warn claims are not precluded by the defendants' material alteration defense. In the abstract, he is correct. In Liriano v. Hobart Corp., 92 N.Y.2d 232, 241, 677 N.Y.S.2d 764, 769 (1998), the New York Court of Appeals held that "manufacturer liability can exist under a failure-to-warn theory in cases in which the substantial modification defense as articulated in Robinson might otherwise preclude a design defect claim." See also Cacciola, 127 F. Supp. 2d at 186-87.
Unfortunately for the plaintiff, there is a key difference between this case and Liriano: here, warnings were displayed on the machine. The plaintiff's own expert offered an opinion that the warnings that he observed were appropriate and sufficient. Indeed, the plaintiff's counsel concedes that "[t]here is no doubt that there were adequate warnings on the machine three and a quarter years after the accident." (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment at 6). Matthiessen's witness provided unrebutted testimony that these were the same warning signs that were affixed to the machine when it was sold. Again, Matthiessen cannot be liable for any removal of the warnings that may have occurred after the machine left its possession. Thus, the plaintiff's failure to warn theory fails, not because it is necessarily precluded by proof of material alteration, but because, in this case, the product as sold contained adequate warnings.
E. Modern Tour
Because Matthiessen, as manufacturer, cannot be liable to the plaintiff for design or manufacturing defects or for any failure to warn, neither can Modern Tour, since its potential liability is only derivative. There is therefore no need to determine whether Modern Tour assumed Matthiessen's liabilities.
Conclusion
For the reasons set forth above, the motions of Matthiessen and Modern Tour for summary judgment are granted, and the Clerk of Court shall enter judgment dismissing the complaint.
SO ORDERED.