Acquisto v. Manitowoc Co.

• Citation: 273 F.Supp.3d 343
• Decision Date: 31 March 2017
• Docket Number: 11–CV–803(LJV)(JJM)
• Parties: Lori Ann ACQUISTO, Plaintiff, v. The MANITOWOC COMPANY, INC., Defendant.
• Court: U.S. District Court — Western District of New York

273 F.Supp.3d 343

Lori Ann ACQUISTO, Plaintiff,

v.The MANITOWOC COMPANY, INC., Defendant.

11–CV–803(LJV)(JJM)

United States District Court, W.D. New York.

Signed March 31, 2017

Laurence D. Behr, Barth, Sullivan & Behr, Buffalo, NY, for Plaintiff.

Elizabeth G. Adymy, Joseph V. McCarthy, Roach, Brown, McCarthy & Gruber, P.C., Buffalo, NY, for Defendant.

MEMORANDUM AND ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

The plaintiff commenced this action on September 22, 2011, asserting claims for negligent product design and strict products liability.¹ See Docket Items 1 & 19 (Amended Complaint). On December 30, 2013, the defendant moved for summary judgment. Docket Item 62. After the plaintiff submitted her response (Docket Items 69 & 72), the defendant moved to strike the declaration of the plaintiff's expert witness. Docket Item 76. United States Magistrate Judge Jeremiah J. McCarthy thereafter issued a Report and Recommendation ("R & R"), dated June 25, 2014, in which he recommended that the defendant's motion for summary judgment be granted. Docket Item 83. Judge McCarthy also denied the defendant's motion to strike "without prejudice to renewal in the event that [the] recommendation [on summary judgment] is not adopted." Id. at 1. Pending before this Court are the plaintiff's objections to the R & R.

This case was reassigned from United States District Judge Richard J. Arcara to the undersigned on March 7, 2016. Docket Item 92. On March 23, 2016, this Court heard oral argument on the plaintiff's objections. Docket Item 95. Both sides were permitted to submit additional briefing, and they did so on April 13, 2016. See Docket Items 97 & 98.

For the reasons set forth below and in the R & R, the defendant's motion for summary judgment (Docket Item 62) is GRANTED.

STANDARD OF REVIEW

With respect to dispositive matters such as the defendant's motion for summary judgment, this Court "must determine de novo any part of the magistrate judge's disposition that has been properly objected to" and "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3) ; see 28 U.S.C. § 636(b)(1).

To the extent that the plaintiff objects to non-dispositive matters, this Court "may reconsider" the magistrate judge's decision only "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A) ; see Fed. R. Civ. P. 72(a).

SUMMARY JUDGMENT

A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant—i.e., the party seeking summary judgment—has the initial burden of showing that there is no genuine dispute of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It may satisfy this burden by relying on evidence in the record, "including depositions, documents, ... [and] affidavits," Fed. R. Civ. P. 56(c)(1)(A), or by "point[ing] to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found. , 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 ); see Fed. R. Civ. P. 56(c)(1)(B). Once the movant has satisfied its initial burden, "the nonmoving party must come forward with specific facts" showing that there is a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted).

A genuine dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]he court must view the evidence in the record in the light most favorable to the non-moving party" and must draw "all reasonable inferences in that party's favor." Abdu–Brisson v. Delta Air Lines, Inc. , 239 F.3d 456, 466 (2d Cir. 2001). But "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment."

Kulak v. City of N.Y. , 88 F.3d 63, 71 (2d Cir. 1996).

DISCUSSION

The plaintiff objected to (1) Judge McCarthy's recommendation that summary judgment be granted to the defendant and (2) the denial of the defendant's motion to strike to the extent that it was without prejudice. The plaintiff also requested that this Court grant her summary judgment, even though she did not move for such relief, pursuant to Fed. R. Civ. P. 56(f) ("Judgment Independent of the Motion").

I. THE PLAINTIFF'S THEORY

The plaintiff claims that she suffered injuries on September 26, 2008, when she slipped and fell in her workplace cafeteria. See Docket Item 19 (Amended Complaint) at 2 (¶¶ 3–4). She alleges that her "accident resulted from water leaking onto the floor from a ‘Q Model’ ice making and dispensing machine combination." Id. (¶ 5).

The defendant manufactured and sold the ice dispenser—specifically, a Model QFA–291—in May 2000. Docket Item 69² at 3 (¶ 1). At the time of the incident, non-party Reite–Way Refrigeration ("Reite–Way") owned the ice dispenser and was leasing it to the plaintiff's employer, non-party Bank of America. See id. at 4–5 (¶ 4). Reite–Way had installed the ice dispenser in the cafeteria at Bank of America's offices in Getzville, New York, on April 11, 2008. See id. (¶¶ 4, 6). Under the lease, Bank of America was responsible for maintaining the ice dispenser (although the property owner, non-party Uniland Property Management Company, also may have cleaned the machine). See id. at 4–5 (¶ 4), 17–18 (response to ¶ 25).

The ice dispenser "had a drain pan that was designed to catch any excess ice that might fall," allowing it to "melt and then exit the machine through [a] vinyl half inch diameter drain line." Id. at 9 (¶ 13). It is undisputed that "[t]he ice dispenser drain was designed for liquid only" and "was not designed to be a garbage disposal." Id. at 8 (¶ 12). So when employees "threw garbage into the drain pan," Reite–Way was repeatedly called to service or clean the machine. Id. at 6–9 (¶¶ 10–15).

As the plaintiff describes it, employees "use the ice catch basin as a convenient disposal for food items and coffee stirrers, etc.," which causes "the defendant's unprotected ice catch basin drain [to become] plugged and causes water to overflow onto floors." Id. at 7 (response to ¶ 10). Thus, it is the plaintiff's theory that the ice dispenser was defectively designed because "workers' use of defendant's ice catch basin as a ‘garbage disposal’ was foreseeable ... and defendant is liable for failing to safely design its product in light of that foreseeable misuse." Docket Item 72 at 8. The plaintiff does not allege any manufacturing defect or failure to warn.³

II. STRICT PRODUCTS LIABILITY

Because the basis for jurisdiction in this Court is diversity of citizenship under 28 U.S.C. § 1332(a), New York law governs the plaintiff's claims. See Bank of N.Y. v. Amoco Oil Co. , 35 F.3d 643, 650 (2d Cir. 1994) ("A federal court sitting in diversity jurisdiction will, of course, apply the law of the forum state on outcome determinative issues.") (citing Erie R. Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ). In New York, "to establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury." Voss v. Black & Decker Mfg. Co. , 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 450 N.E.2d 204, 208 (1983).

The parties' summary judgment submissions disagreed starkly about whether there is any evidence that the ice dispenser's drain was clogged on the day in question or that the plaintiff slipped on water from the ice dispenser—and therefore about whether the allegedly defective design was a substantial factor in causing the plaintiff's injury. But the R & R did not focus on those issues. As noted in the R & R, see Docket Item 83 at 5, a cleaning employee, Mary Carroll, stated that water was "coming from the ice machine" when she was called to clean up after the plaintiff's accident. Docket Item 62–12 at 11. Ms. Carroll also said that the water was dripping from the machine because "the drain that holds the ice was plugged"—an occurrence she claims to have observed "numerous times before." Id. For that reason, there is a question of fact about whether a clogged ice machine caused the plaintiff's injury, and the R & R therefore focused on whether the ice dispenser was "not reasonably safe." Given the nature of the plaintiff's objections, this Court will follow suit.

The design of a product is "not reasonably safe" if—assuming the alleged "defect [was] 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." Voss , 59 N.Y.2d at 108, 463 N.Y.S.2d 398, 450 N.E.2d at 208. A plaintiff making such a claim "is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner." Id. The "defendant manufacturer, on the other hand, may present evidence in opposition seeking to show that the product is a safe product—that is, one whose utility outweighs its risks when the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product's inherent usefulness at an acceptable cost." Id.

In Voss , the New York Court of Appeals identified seven non-exclusive...