Opinion
No. 02 Civ. 8796 (SAS).
November 12, 2004
Robert M. Motta, Esq., Alison Reiss, Esq., Reiss Motta, L.L.P., Chicago, IL, Attorneys for Plaintiffs.
Craig Lamster, Esq., Galvano Xanthakis, P.C., New York, NY, Attorneys for Defendant/Third-Party Plaintiff Lewis Donnelly.
Jon D. Lichtenstein, Esq., Gordon Silber, P.C., New York, NY, Attorneys for Vermont Castings Majestic Products Co.
Scott P. Benjamin, Esq., Steven R. Sundheim Assoc., L.L.C., White Plains, NY, Attorneys for Fairview Majestic Fireplace, Corp.
OPINION AND ORDER
Colby Rae Santoro ("Colby") and her mother, Diana Santoro ("Santoro") bring this diversity action against Colby's father, Lewis Donnelly, Fairview Majestic Fireplace, Corp. ("Fairview"), and The Vermont Castings Majestic Products Co. ("Vermont"). Vermont is a manufacturer, and Fairview is a seller and installer, of prefabricated fireplaces and accessories.
See Am. Compl. ¶¶ D, 4.
See id. ¶¶ F, 3; Deposition of Art Ackert, former President of Fairview ("Ackert Dep"), Ex. B to Declaration of Craig A. Lamster, counsel for Donnelly, in Opposition to Motion for Summary Judgment ("Lamster Decl."), at 9.
Colby asserts causes of action sounding in negligence, strict products liability, and breach of warranty, arising from an accident in which she sustained severe burns from touching the glass surface of Donnelly's fireplace heater. Santoro alleges claims for negligent infliction of emotional distress, loss of consortium, and a derivative claim for loss of services and to recover medical expenses, arising from the same accident. Donnelly brings claims as a third-party plaintiff against Fairview and Vermont for contribution and indemnification, negligence, strict products liability, and breach of warranty. Fairview now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 as against plaintiffs and Santoro. For the reasons that follow, Fairview's motion is granted in part and denied in part.
Because Colby and Donnelly assert nearly identical claims, I refer to them collectively as "plaintiffs" for purposes of this motion.
Although Fairview has moved for summary judgment on "any and all claims and cross-claims," Fairview does not argue that Donnelly's claims for contribution and indemnification should be dismissed. Fairview's Amended Notice of Motion for Summary Judgment at 1. Therefore, I do not address these claims.
I. BACKGROUND
Familiarity with the Court's previous opinions in this case is assumed. I describe only the undisputed facts relevant to the determination of this motion.
See Santoro v. Donnelly, No. 02 Civ. 8796, 2004 WL 2222167 (S.D.N.Y. Sept. 30, 2004) (" Santoro II"); Santoro v. Donnelly, No. 02 Civ. 8796, 2004 WL 439498 (S.D.N.Y. Mar. 10, 2004) (" Santoro I").
Sometime in 2001, Donnelly purchased a house in Highland Mills, New York. He undertook extensive renovations because the house was in poor condition. The work was completed by contractors from Donnelly's construction company, Ashmar Development ("Ashmar"), and Donnelly himself. As part of the renovation, Donnelly decided to install a gas fireplace.
See Defendant Fairview's Rule 56.1 Statement ("Def. 56.1 Stmt.") ¶ 5; Plaintiffs' Response to Statements Alleged in Rule 56.1 Statement ("Pl. 56.1 Stmt.") ¶ 5; Donnelly's Reply to Fairview Majestic Fireplace Corp.'s Rule 56.1 Statement ("Donnelly 56.1 Stmt.") ¶ 5; Santoro II, 2004 WL 2222167, at *1.
See Santoro II, 2004 WL 2222167, at *1.
Ashmar's office manager, Mary Petrillo, contacted Fairview to obtain the desired fireplace because Fairview had sold and installed fireplaces for Ashmar before. When Petrillo placed the order, she gave Fairview the model number for a Vermont-manufactured gas fireplace heater. A glass-enclosed fireplace heater has the dual purpose of producing a decorative flame and of heating the room.
See id.
Because of their business relationship, Fairview gave Donnelly the fireplace heater free of charge. When the fireplace heater was delivered, Donnelly thought it was too small for the living room and therefore had Fairview install it in his bedroom. Donnelly purchased a larger Vermont fireplace heater for the living room, which was sold and installed by Fairview. Plaintiffs do not claim that Fairview's manner of installation caused the fireplace heater to malfunction or operate in a manner different from that intended by Vermont.
See Def. 56.1 Stmt. ¶ 37; Pl. 56.1 Stmt. ¶ 37; Donnelly 56.1 Stmt. ¶ 37.
See Def. 56.1 Stmt. ¶ 8; Pl. 56.1 Stmt. ¶ 8; Donnelly 56.1 Stmt. ¶ 8; Santoro II, 2004 WL 2222167, at *1.
See Def. 56.1 Stmt. ¶ 29; Pl. 56. Stmt. ¶ 29; Donnelly 56.1 Stmt. ¶ 29.
Vermont's Installation Instructions and Homeowner's Manual ("instruction manual") warned that children should be carefully supervised while in the same room as the fireplace heater because of the high glass surface temperature of the product. In addition, a tethered plate inside the fireplace heater's bottom control compartment cautioned the user not to touch the heater because severe burns could result. Donnelly was never given any oral or written instructions or information by Fairview about the fireplace heater. However, he never tried to locate or obtain an instruction manual because the fireplace heater could be turned on by simply flipping a switch.
See Vermont's Installation Instruction and Homeowner's Manual, Ex. M to Declaration of Jon D. Lichtenstein, counsel for Vermont, in Support of Motion to Preclude and for Summary Judgment ("Lichtenstein Decl.") cited in Santoro II, at 3 ("Children and adults should be alerted to the hazards of the high surface temperatures of the fireplace and should stay away to avoid burns or ignition of clothing. Caution, due to high glass surface temperature children should be carefully supervised when they are in the same room as the fireplace. ").
See Photograph No. 22 attached to Initial Report of W. Alan Bullerdiek, plaintiffs' expert witness, Ex. L to Lichtenstein Decl. ("CAUTION: HOT WHILE IN OPERATION. DO NOT TOUCH. SEVERE BURNS MAY RESULT. KEEP CHILDREN, CLOTHING, FURNITURE, GASOLINE AND OTHER LIQUIDS HAVING FLAMMABLE VAPORS AWAY.").
See Deposition of Lewis Donnelly ("Donnelly Dep."), Ex. C to Lamster Decl., at 27.
See Def. 56.1 Stmt. ¶ 36; Pl. 56.1 Stmt. ¶ 36; Donnelly 56.1 Stmt. ¶ 36; Santoro II, 2004 WL 2222167, at *2.
On December 22, 2001, Colby, then one year old, was visiting her father at his new house. Donnelly's eleven year old daughter, Ashley Donnelly ("Ashley"), and her friend, Brooke Sackaris, were also present. As Donnelly was unpacking groceries in the kitchen, Ashley asked him if she could turn on the fireplace heater in the living room. Donnelly gave her permission and told her how to operate it. All three children were in the living room while Donnelly was in the kitchen. The fireplace heater was turned on. Within approximately ten minutes, Ashley ran into the kitchen holding Colby, who had been burned. Donnelly recalls that at some point, Ashley told him that within a second, Colby had run to the fireplace, climbed onto the hearth, and had fallen, hitting her hands and forehead on the fireplace heater.
See Def. 56.1 Stmt. ¶¶ 13-19; Pl. 56.1 Stmt. ¶¶ 13-19; Donnelly 56.1 Stmt. ¶¶ 14-19; Santoro II, 2004 WL 2222167, at *2.
See Donnelly Dep. at 290.
Donnelly rushed Colby to the hospital, and she was treated for second or third degree burns on both her hands, left forearm, and forehead. Since the accident, Colby has been treated by multiple doctors at a cost of almost ten thousand dollars, which has been paid out of pocket by Santoro.
See Santoro II, 2004 WL 2222167, at *2-3.
II. LEGAL STANDARD
Summary judgment is appropriate if the evidence "show[s] 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." "An issue of fact is `genuine' if `the evidence is such that a jury could return a verdict for the nonmoving party.'" "A fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law.'" However, "[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper."
Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).
Id. (quoting Anderson, 477 U.S. at 248).
Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
To prevail on a motion for summary judgment, the movant must demonstrate that no genuine issue of material fact exists. In turn, the nonmoving party may defeat the motion by raising a disputed issue of material fact. However, it "must do more than simply show that there is some metaphysical doubt as to the material facts," and it must "come forward with `specific facts showing that there is a genuine issue for trial.'" In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor.
See Powell v. Nat'l Bd. of Medical Examiners, 364 F.3d 79, 84 (2d Cir. 2004).
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Powell, 364 F.3d at 84 (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).
See Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004).
III. DISCUSSION
A. Negligence
To make out a claim for negligence under New York law, a plaintiff must demonstrate (1) the existence of a duty on defendant's part as to plaintiff, (2) breach of that duty, and (3) the injury suffered by the plaintiff resulted from that breach. "To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury."
No party seeks application of New Jersey law, and I find that New York law governs because New York has the greatest contacts with the parties and plaintiffs' claims seek to regulate defendants' conduct. See Santoro II, 2004 WL 2222167, at *11.
See Sukljian v. Charles Ross Son Co., Inc., 69 N.Y.2d 89, 97 (1986) ("[A] determination of negligence — i.e., breach of duty — must begin with consideration of the duty owed, which is a matter of policy. . . .").
See McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997); Atkins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333 (1981).
Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315 (1980). See also Howard v. Poseidon Pools, Inc., 72 N.Y.2d 972, 974 (1988) (plaintiff must demonstrate that negligence was "substantial cause" of injury); Olejniczak v. E.I. Du Pont de Nemours and Co., 998 F. Supp. 274, 278 (W.D.N.Y. 1998) ("An injury is `proximately caused' by an act, or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury, and that the injury was either a direct result or a reasonably probable consequence of the act or omission.").
Summary judgment is rarely granted in negligence cases because negligence is usually determined by a resolution of facts, and because there is often a question as to whether the defendant acted reasonably. "[B]ecause of the wide variety of circumstances under which negligence actions arise, issues such as whether the defendant took adequate means to prevent the accident, whether the accident was foreseeable, the burden imposed on the defendant to prevent the accident, and the possible contributory negligence of the plaintiff are in most cases best left for the trier of fact to decide."
See Olejniczak, 998 F. Supp. at 278.
Id.
Fairview makes two principal arguments as to why plaintiffs' negligence claims should be dismissed. First, Fairview argues that there is no evidence in the record of how the accident occurred, and therefore the Court has no basis for determining the cause of the accident. Although Donnelly testified as to Ashley's statements to him, those statements are inadmissible hearsay. Neither Ashley nor Brooke have been produced as witnesses. Second, Fairview contends that the absence of the instruction manual was not the proximate cause of Colby's accident. According to Fairview, plaintiffs cannot show that Fairview's alleged failure to supply the instruction manual caused the accident because Donnelly was not looking for, nor interested in, instructions or warnings; he never examined the fireplace heater prior to the accident because he "didn't really care"; he habitually discarded manuals for the appliances in his home; and he testified that he probably would not have read the instruction manual had it been provided.
See Fairview Memorandum of Law ("Fairview Mem.") at 3; Declaration of Scott P. Benjamin, counsel for Fairview, in Reply and in Further Support of Motion for Summary Judgment ("Benjamin Reply Decl.") ¶¶ 14-19.
Mr. Motta, plaintiffs' counsel, indicated in Plaintiffs' [sic] Declaration in Opposition to Fairview's Motion for Summary Judgment ("Motta Decl.") that he intended to move this Court "to have counsel stipulate to the fact that if called to testify either Ashley Donnelly or Brooke Sackaris would testify to the fact that COLBY RAE received her injuries by coming into contact with the Fireplace-Heater." Motta Decl. ¶ 10. This is problematic for a number or reasons. First, a stipulation is by definition an agreement between parties, and the Court cannot order the parties to agree to facts that are in dispute. See Black's Law Dictionary (8th ed. 2004) (defining "stipulation" as "[a] voluntary agreement between opposing parties concerning some relevant point"). Second, the clearest evidence that Colby received her injuries from the fireplace heater is the burns themselves. No one contends that there was something else in the living room that could have caused Colby's burn injuries. Rather, Fairview's argument is that there must be more direct evidence than what is currently in the record ( e.g., what Ashley and Brooke witnessed in the living room) for the fact finder to determine legal causation. I address this argument in the text.
See Fairview Mem. at 7-9; Benjamin Reply Decl. ¶¶ 43-50.
A genuine issue of material fact clearly exists regarding who is responsible for failing to provide Donnelly with the instruction manual — the manufacturer or the installer. Donald Jamieson, Vermont's Director of Engineering, testified that the manufacturer's assembly line is directed to put the instruction manual behind the glass panel in the fire box. Vermont's quality assurance department then checks the first unit from each production run to make sure it complies with the applicable drawings and specifications; if the first unit is in compliance, no other units are checked. Jamieson further stated that he expected the installer to physically hand the instruction manual to the homeowner, or in the case of new home construction, the site superintendent. Art Ackert, Fairview's former President, testified that the fireplace heater comes with an instruction manual and warrantee information inside the fireplace, which the installer leaves for the builder. He stated that the manual is "always in the bottom of the fireplace," but also admitted that Fairview installers were not required to verify that manuals were actually inside the fireplaces after installation. Construed in the light most favorable to plaintiffs, the evidence shows that the instruction manual was inside the fireplace heater when it shipped from Vermont, and Fairview must have removed the manual during installation without ever replacing it. Thus, Fairview can only obtain summary judgment if no reasonable jury could find that the absence of the manual was the proximate cause of Colby's injuries.
See Deposition of Don Jamieson, Vermont's Director of Engineering ("Jamieson Dep."), Ex. A to Lamster Decl., at 10-11, 13, 17.
See Ackert Dep. at 89-90.
See id. at 45.
Neither the lack of direct testimony from Ashley or Brooke nor Donnelly's propensity not to read manuals is fatal to plaintiffs' claims. It is undisputed that on the day of the accident, Donnelly was unpacking groceries in the kitchen while the children were in the living room; that Ashley asked for, and received, permission from her father to turn on the fireplace heater; that Ashley subsequently came running into the kitchen holding Colby; and that Colby sustained serious burns on her hands, forearm, and forehead. Donnelly testified that had he been warned that the fireplace heater became so hot, he never would have let Ashley turn on the fireplace or left it in use without adult supervision. From these facts, it could be inferred that the accident was a natural and probable consequence of Fairview's failure to provide the instruction manual. Furthermore, although Donnelly testified that he would "probably not" have read the instruction manual, he did not say that he definitely would not have read it. Although there are doubts about whether Donnelly would have departed from his normal practice, I cannot conclude as a matter of law that he would not have read the instruction manual. New York courts have determined proximate cause as a matter of law in only two situations: where the uncontroverted facts established that the conduct of the respective plaintiffs was the sole proximate cause of their injuries, or where an unforeseeable intervening event broke the causal chain. Neither situation exists here. Therefore, summary judgment is denied with respect to plaintiffs' negligence claims.
See Santoro II, 2004 WL 2222167, at *2.
See Donnelly Dep. at 50, 54.
See Olejniczak, 998 F. Supp. at 278 (circumstantial evidence can provide a basis from which the causal sequence may be inferred); Hurley v. Marriott Corp., No. 93-CV-1544, 1995 WL 694614, at *4 (N.D.N.Y. Nov. 21, 1995) (circumstantial evidence, including statements of rescue workers, employees, and expert evidence, supported inference that sidewalk was icy and raised issue of fact whether icy sidewalk was proximate cause of fall); Sanchez v. Lehrer McGovern Bovis, Inc., 756 N.Y.S.2d 44, 45 (1st Dep't 2003) (circumstances permitted a reasonable inference that defendant's contracting work created the condition that caused plaintiff's fall); Healy v. ARP Cable, Inc., 753 N.Y.S.2d 38, 41 (1st Dep't 2002) ("It is enough that [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.") (citation omitted); Ellis v. County of Albany, 613 N.Y.S.2d 983, 984 (3d Dep't 1994) ("The absence of direct evidence does not require a ruling in defendants' favor, for proximate cause may be inferred from the facts and circumstances surrounding the event.").
See Donnelly Dep. at 59.
See, e.g., Howard, 72 N.Y.2d at 975 (plaintiff's conduct in diving head first into above-ground pool was sole proximate cause of injury); Smith v. Stark, 67 N.Y.2d 693, 694 (1988) (same).
See, e.g., Boltax v. Joy Day Camp, 67 N.Y.2d 617 (1988) (not foreseeable that knowledgeable adult would dive head first from lifeguard chair into shallow water); Filiatrault v. Graham Constr. Maint. Co., 2004 WL 2216139, at *1 (4th Dep't Oct. 1, 2004) (use of tow strap and chain fall system to create improvised pulley system was unforeseeable intervening act, absolving defendants of liability).
B. Strict Products Liability
To prevail on a claim of strict products liability in New York, a plaintiff must show that the product was defective and that the defective product was a substantial factor in causing her injury. A product may be defective "because of a mistake in the manufacturing process or because of improper design or because the manufacturer failed to provide adequate warnings regarding the use of the product."
See Voss v. Black Decker Mfg. Co., 59 N.Y.2d 102, 107 (1983).
Id. at 106-07 (citations omitted).
If the plaintiff claims that the product was defectively designed, she must demonstrate that (1) the product as designed was "not reasonably safe"; (2) there was a safer, feasible alternative design at the time of manufacture; and (3) the defective design was a substantial factor in causing the plaintiff's injuries. The first two elements, grouped together, are often referred to as the risk-utility balancing test used to determine whether a product is "not reasonably safe." The risk-utility analysis "is rooted in a recognition that there are both risks and benefits associated with many products and that there are instances in which a product's inherent dangers cannot be eliminated without simultaneously compromising or completely nullifying its benefits."
See id. at 108; accord Colon v. BIC USA, Inc., 199 F. Supp. 2d 53, 83 (S.D.N.Y. 2001).
Voss, 59 N.Y.2d at 108 ("[T]he proper standard to be applied should be whether the product as designed was `not reasonably safe' — that is, whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner."). Accord Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 454 (S.D.N.Y. 1999) (citing Cover v. Cohen, 61 N.Y.2d 261, 266-67 (1984)) ("[a]vailable alternatives" must exist such that a reasonable person, balancing the product's risks, cost and utility against the alternative's risk, cost and utility, would conclude that it should not have been marketed).
Denny v. Ford Motor Co., 87 N.Y.2d 248, 257 (1995).
A failure to warn claimant must demonstrate that (1) the defendant had a duty to warn; (2) the danger was foreseeable; and (3) the failure to warn was the proximate cause of the harm. There is no duty to warn "where the injured party was fully aware of the hazard through general knowledge, observation or common sense," or where the risks are open and obvious. "Once a warning is given, the focus shifts to the adequacy of the warning. . . . [New York] courts have required . . . that warnings must clearly alert the user to avoid certain unsafe uses of the product which would appear to be normal and reasonable." In New York, there is a presumption that a user would have heeded warnings if they had been provided, and that the injury would not have occurred. However, the presumption may be rebutted by specific facts showing that the warning would have been futile.
See Liriano v. Hobart Corp., 92 N.Y.2d 232, 237 (1998).
Id. at 241. Accord Hutton v. Globe Hoist Co., 158 F. Supp. 2d 371, 376 (S.D.N.Y. 2001).
See Liriano, 92 N.Y.2d at 241-42.
Cooley v. Carter-Wallace Inc., 102 A.D.2d 642, 646, 478 N.Y.S.2d 375 (4th Dep't 1984) (quotation marks and citation omitted). Accord Billiar v. Minnesota Mining and Mfg. Co., 623 F.2d 240, 245 (1980) ("The duty is not merely to warn, but to warn adequately."); Ezagui v. Dow Chem. Corp., 598 F.2d 727, 733 (2d Cir. 1979) ("Inadequate warnings will render a product defective for purposes of warranty and strict products liability.").
See Anderson, 76 F. Supp. 2d at 441.
See id.
Fairview argues that it is not liable under either theory of strict products liability because it did not have any responsibility for, or input into, the design of the fireplace heater or the warnings; those decisions were made by the manufacturer. In addition, Fairview asserts that it did not have any duty to warn Donnelly because he was a knowledgeable user, and the danger of burns was open and obvious.
See Fairview Mem. at 9-14; Benjamin Reply Decl. ¶¶ 59-60.
Fairview's arguments lack merit because it sold Donnelly the fireplace heater. Although design decisions are normally the province of the manufacturer, it is well-settled in New York that sellers, such as retailers and distributors, of merchandise may be subject to strict products liability. The New York Court of Appeals has explained:
See Michael v. General Tire, Inc., 747 N.Y.S.2d 40, 297 A.D.2d 629, 629 (2d Dep't 2002) (distributor of defective tire liable under theory of strict products liability even though tire was defective before it was delivered to distributor); Nichols v. Agway, Inc., 720 N.Y.S.2d 691, 692 (4th Dep't 2001) (distributors are subject to strict products liability); Joseph v. Yenkin Majestic Paint Co., 690 N.Y.S.2d 611, 612 (2d Dep't 1999) (same); Harrigan v. Super Prods. Corp., 654 N.Y.S.2d 503, 504 (4th Dep't 1997) (same).
Where products are sold in the normal course of business, sellers, by reason of their continuing relationships with manufacturers, are most often in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation; additionally, by marketing the products as a regular part of their business such sellers may be said to have assumed a special responsibility to the public, which has come to expect them to stand behind their goods.
Sukljian, 69 N.Y.2d at 95.
"[T]he retailer's strict liability thus serves as an added incentive to safety." Strict liability does not apply to casual or occasional sellers because the policy considerations that justify holding sellers strictly liable are not applicable to a party that is not engaged in the sale of the product in the normal course of business. This exception, however, does not apply to Fairview because it sold fireplace heaters as a regular part of its business.
Mead v. Warner Pruyn Division, 394 N.Y.S.2d 483, 484 (3d Dep't 1977).
Sukljian, 69 N.Y.2d at 95.
See Ackert Dep. at 9 (business purpose of Fairview was to sell and install prefabricated fireplaces and accessories); id. at 13 (approximately half of the Majestic model fireplaces Fairview sold in 2001 were gas fireplaces); id. at 17-18 (in 2001, Fairview sold approximately fifty units of model number 43 BDTVRP, the same fireplace heater Donnelly owned).
As the distributor, Fairview had a duty to warn Donnelly of the contact burn hazard of the fireplace heater. Ackert testified that Fairview employees were aware that the glass front of the heater could reach over four hundred degrees. He explained that when the product was introduced, a sales representative from Vermont came and described the "nuance of the product," and that he talked about it with Fairview's salespeople and installers. Yet no one from Fairview provided Donnelly with any oral or written instructions or warnings about the fireplace heater. As with plaintiffs' negligence claims, however, the parties dispute whether the absence of a warning was the proximate cause of Colby's injuries. Fairview has offered evidence that Donnelly is an apathetic consumer who often throws out instruction manuals, fails to fill out warranty cards, and in this case, failed to search for or obtain an instruction manual when he did not receive one. Although a reasonable jury could conclude that Donnelly would not have heeded Fairview's warning, it could also find, based on Donnelly's testimony, that had he been warned of the danger he would not have allowed the children to be near the fireplace heater without adult supervision. Accordingly, Fairview is not entitled to summary judgment on plaintiffs' claims of strict products liability.
See Harris v. International Harvester Co., 486 N.Y.S.2d 600, 604 (Sup.Ct. Oneida Co. 1984) ("A retailer also has a duty to warn of known dangers in the use of the product, even as to defects discovered after sale. The duty to warn runs not only to the purchaser but also to third persons exposed to a foreseeable and unreasonable risk of harm by the failure to warn.") (quotation marks and citations omitted).
See Ackert Dep. at 126.
See id. at 127.
See Donnelly Dep. at 27-28; 266-68.
I do not address Fairview's final argument because I previously held in Santoro II that genuine issues of material fact exist concerning whether Donnelly was a knowledgeable user and whether the contact burn hazard was open and obvious. See Santoro II, 2004 WL 2222167, at *14-15.
C. Remaining Claims
Fairview's arguments on the remaining claims are largely repetitive of the ones I rejected on Vermont's motion for summary judgment. For the reasons articulated in Santoro II, summary judgment is granted with respect to Santoro's claims of negligent infliction of emotional distress, loss of consortium, and loss of services. It is denied with respect to plaintiffs' breach of warranty claims and Santoro's claim for medical expenses. Santoro cannot recover on any cause of action except for medical expenses because she cannot establish a prima facie case on the other claims: she was not in the zone of danger when the accident occurred; she cannot recover damages for the loss of Colby's companionship; and she has not shown the value of Colby's lost services. By contrast, plaintiffs' have raised a disputed issue of material fact on the breach of warranty claims because the parties disagree as to the ordinary purpose of the fireplace heater.
See id. at *17.
See id. at *16.
IV. CONCLUSION
For the reasons set forth above, Fairview's motion is granted in part and denied in part. Summary judgment is granted as to Santoro's claims for negligent infliction of emotional distress, loss of consortium, and loss of services. Summary judgment is denied as to plaintiffs' negligence, design defect, failure to warn, and breach of warranty claims, and Santoro's claim for medical expenses. The Clerk of the Court is directed to close this motion [# 83 on the docket sheet]. A conference is scheduled for 4:30 p.m. on November 18, 2004, in Courtroom 15C.
SO ORDERED.