Humphrey v. Diamant Boart, Inc.

• Decision Date: 13 February 2008
• Docket Number: No. 06-CV-2771 (JFB)(AKT).,06-CV-2771 (JFB)(AKT).
• Citation: 556 F.Supp.2d 167
• Parties: Kerwin HUMPHREY, Plaintiff, v. DIAMANT BOART, INC. and Festinal Co., Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

556 F.Supp.2d 167

Kerwin HUMPHREY, Plaintiff, v. DIAMANT BOART, INC. and Festinal Co., Inc., Defendants.

No. 06-CV-2771 (JFB)(AKT).

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

February 13, 2008.

Joseph E. Soffey, Esq., of Soffey & Soffey LLC, Garden City, NY, for Plaintiffs.

George S. Hodges, of Hodges Walsh & Slater, LLP, White Plains, NY, Mary L. Barrier, of Stinson Morrison Hecker LLP, Kansas City, MO, for Defendants'.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

This is a products liability action in which plaintiff Kerwin Humphrey ("plaintiff or "Humphrey") has brought suit against defendants Diamant Boart, Inc. ("Diamant Boart") and Fastenal Company Inc. ("Fastenal")¹ (collectively, "defendants"), in connection with an alleged accident that occurred while Humphrey was using a Quickie Super 60 handheld saw to cut a wooden light pole on September 23, 2005, while he was employed as a Labor Supervisor for the Village of Garden City, New York. Specifically, the Complaint sets forth causes of action for (1) strict liability, alleging the design of the blade guard and the warnings and instructions for the saw's use were defective, and (2) breach of implied warranty, alleging the saw was not reasonably safe for its intended use. Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, the Court denies defendants' motion for summary judgment in its entirety.

I. BACKGROUND

A. Factual Background

The facts described below are taken from the parties' depositions, affidavits, exhibits and defendants' Local Rule 56.1 statement of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the nonmoving party.² See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2001).

Humphrey was employed as a Labor Supervisor by the Village of Garden City, New York. (Defs.' 56.1 ¶ 5.) He had worked for the Village of Garden City since 1984 and was originally hired as a laborer. (Id. ¶ 6.) By September 2005, Humphrey had been promoted to Labor Supervisor, which involved the supervision of a crew of one to two co-employees responsible for, among other things, the replacement and repair of street lights in the Village of Garden City. (Id.)

The saw at issue in this case is a Quickie Super 60 handheld portable saw (hereinafter, "saw," "Quickie saw," or "Quickie Super 60 saw") designed and manufactured by EMAK International ("EMAK"), an Italian corporation. (Id. ¶ 7.) In April 2001, EMAK sold the saw to Diamant Boart, for resale. (Id) On September 21, 2001, Diamant Boart sold the saw to Fastenal, which was an independent distributor professional contractors' construction products. (Id ¶ 8.) In April 2002, Fastenal sold the saw to the Village of Garden City. (Id. ¶ 9.)

Humphrey began using the Quickie Super 60 saw in 2002 soon after it was purchased by the Village of Garden City. (Id. ¶ 10.) He was the sole user of the saw and stored it on his crew truck. (Id.) Humphrey was given no formal training as to the operation of the Quickie Super 60 saw or any of the other power equipment he used in his work. (Id, ¶ 11.) Moreover, he was not given any formal instruction with respect to the type of blade he should use with the saw when cutting concrete, asphalt, or wood. (Id.) Instead, Humphrey learned about the operation of the saw by personal observation of other Village of Garden City employees, starting in 1984 when he was first hired. (Id) Humphrey used the Quickie saw to cut wooden poles two or three times per week for approximately three and one-half years prior to his accident without the saw recoiling or malfunctioning during use. (Id. ¶ 12.) According to Humphrey, beginning in 2002 and throughout the three and one-half year period that he used the Quickie saw prior to the accident, he observed that the saw's blade guard would loosen during operation, and Humphrey would stop and re-tighten the guard before continuing its use. (Id, ¶ 13.) Humphrey knew that he needed to re-tighten the blade guard because he could actually see the guard rotate back and expose more of the blade. (Id. ¶ 14.) Humphrey never advised his employer that the blade guard was loosening during operation, nor did he ever request service or maintenance on the blade guard. (Id, ¶ 15.)

At the time of the sale of the saw by defendants, the saw had several on-product warning and instruction labels. (Id. ¶ 17.) Among other warnings, the labels on the blade guard of the saw warned the user as follows:

WARNING

FAILURE TO FOLLOW ALL WARNINGS AND INSTRUCTIONS MAY RESULT IN SERIOUS INJURY OR DEATH

Read entire operator's manual before operating this machine. Understand all warnings, instructions, and contents.

Use only reinforced abrasive or high speed diamond blades having an operating speed above or equal to the maximum spindle speed and specifically designed for use with hand-held, portable, high speed cut off machines.

Do not use damaged or carbide tipped blades.

Machinery hazard—Always keep all guards in place properly adjusted and in good condition.

(Id, ¶ 17.) A warning on the top of the saw console repeated the direction to the operator to read the manual before operating the saw. (Id.) The operator's manual contained two warnings to the operator not to use carbide tipped blades on the saw. (Id. ¶ 18.)

Humphrey observed and was aware of the on-product warnings and instruction labels, but did not read them. (Id. ¶ 19.) Humphrey also was aware that the saw had an operator's instruction manual and that on-product labels instructed him to read the manual, but he did not read it. (Id, ¶ 20.)

According to the former President of Diamant, the Quickie saw (1) is used by, and marketed to, professional contractors, and (2) is intended to be used to cut hard materials, such as steel, concrete, brick, and asphalt, not to cut soft materials, like wood. (Gustafsson Aff. ¶¶ 10-11, 13.) Moreover, as stated on the label and Operating Instructions, it is intended for use only with diamond and abrasive blades, not carbide tipped blades. (Defs.' 56.1 ¶ 21.)

On September 23, 2005, which was the day of the accident at issue in this case, Humphrey and a two-person crew were removing and cutting up a 20-foot wooden light pole from a parking lot behind the Lord & Taylor building in the Village of Garden City. (Id. ¶ 23.) The crew had removed the bolts securing a metal shoe which attached the pole to its concrete base and laid the pole horizontally on the surface of the parking lot to be cut into more manageable pieces. (Id. ¶ 24.) Humphrey was using the saw for approximately 8 minutes prior to the accident, during which time he cut the top T bar on the wooden pole off and had cut two section lengths along the top of the pole. (Id. ¶ 25.) According to Humphrey, as he began a third cut in the top of the pole, the saw "bound up" in the cut for a "second" and kicked back, striking him in the face. (Id.)

B. Procedural History

Plaintiff initially filed the complaint in Supreme Court, County of Nassau, on February 6, 2006, and served the defendants on May 4, 2006. On June 2, 2006, the case was removed to federal court. The defendants answered the complaint on June 9, 2006. On June 29, 2007, defendants moved for summary judgment. Oral argument was held on September 7, 2007.

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2004). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir.2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (noting that summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").

Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts .... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (internal quotations omitted); Tufariello v. Long Island R.R., 364 F.Supp.2d 252, 256 (E.D.N.Y.2005). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (internal...