Levine v. Sears Roebuck and Co.

• Decision Date: 01 May 2002
• Docket Number: No. 00-CV-7616 (ILG).,00-CV-7616 (ILG).
• Citation: 200 F.Supp.2d 180
• Parties: Helen and Lester LEVINE, Plaintiffs, v. SEARS ROEBUCK AND CO., INC. and Sears Home Central, Inc. Defendants.
• Court: U.S. District Court — Eastern District of New York

200 F.Supp.2d 180

Helen and Lester LEVINE, Plaintiffs, v. SEARS ROEBUCK AND CO., INC. and Sears Home Central, Inc. Defendants.

No. 00-CV-7616 (ILG).

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

May 1, 2002.

COPYRIGHT MATERIAL OMITTED

Cynthia Dolan, Esq., Boeggeman, George, Hodges & Corde, P.C., White Plains.

Thomas B. Grunfeld, Esq., Kahn, Gordon, Timko & Rodriques, New York.

MEMORANDUM AND ORDER

GLASSER, District Judge.

SUMMARY

Plaintiff Helen Levine ("Mrs.Levine") brings this action against defendants Sears Roebuck & Co. Inc. and Sears Home Central, Inc. (collectively, "Sears"),¹ for personal injuries she allegedly sustained after she tripped over the door of her Kenmore dishwasher. Mrs. Levine raises claims of negligence, strict product liability and breach of warranty. Plaintiff's husband Lester Levine ("Mr.Levine") raises a claim for loss of consortium due to his wife's injuries. Sears now moves for summary judgment. For the reasons that follow, the motion is granted.

BACKGROUND

The relevant facts, viewed in the light most favorable to plaintiff (as this Court must do on a motion for summary judgment by the defendant, see Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987)), are as follows.² On April 12, 1999, at approximately 11:00 a.m., Mrs. Levine tripped and fell in her kitchen, while unloading dishes from her dishwasher, and sustained personal injuries. Mrs. Levine testified about the events of that morning as follows: As she was unloading dishes from the dishwasher, she picked up some glasses and turned to her left to place them in the cabinet. (See Mrs. Levine Deposition ("H. Levine Dep.") at 16, attached to George S. Hodges Affidavit ("Hodges Aff.") as Ex. E.) She then "turned around to get more dishes out, [at which point] the door gave a bang to the floor, [her] foot got caught under the door and [she] tripped right over the door." (Id.)

Within moments of her fall, Mr. Levine entered the kitchen and saw his wife on the floor. (See Mr. Levine Deposition ("L. Levine Dep.") at 6, attached to Thomas B. Grunfeld Affidavit ("Grunfeld Aff.") as Ex. 1.) He also observed that the open dishwasher door was slanted downward below its normal position, with the unhinged end (the top of the door) hanging about five inches above the floor. (Id. at 8.)

The Levines had purchased the subject dishwasher from Sears in 1983. (See L. Levine Dep. at 11.) However, the dishwasher had been designed and manufactured by a company called White Consolidated.³ (See Hodges Aff. ¶ 9.) When plaintiffs purchased the machine, they also entered into a maintenance agreement with Sears Home Central, which they renewed every two years; this agreement had recently been renewed and was in full effect at the time of Mrs. Levine's accident. (See L. Levine Dep. at 21-22; Maintenance agreement, attached to Grunfeld Aff. as Ex. 8.) The Levines had their dishwasher serviced under their Sears maintenance agreement on an average of two to three times a year over a seventeen year period. (See L. Levine Dep. at 21.) During that time, Mrs. Levine made approximately eight complaints to Sears about the dishwasher, for problems ranging from a leaking pump to a squeaky and loose door. (See H. Levine Dep. at 23, 25, 28-29; Sears service receipts, attached to Grunfeld Aff. as Exs. 5-6, 9-10.) Mrs. Levine used the dishwasher practically every day. (See H. Levine Dep. at 20.)

Mrs. Levine testified that she had problems with the dishwasher door "through the years." (Id. at 27.) She described the door as being "loose and shaky"; "noisy," in that it would make a "bang" every time she opened it; and "slanted," in that the door would hang downward towards the floor. (Id. at 19-21, 26-28, 34-36.) She stated that, in its worst condition, the door would hang so that the top end was approximately five inches above the floor. (Id. at 28.) She stated, however, that the door did not have these problems when it was new. (Id.)

Mrs. Levine alleges that, sometime in early January 1999, just three months prior to the accident, she complained to Sears about the door being loose and slanting downward. (Id. at 31, 34.) She stated that, on January 12, 1999, a Sears repairman came to her house and inspected the dishwasher door.⁴ (Id. at 31.) The repairman told her that the door's rubber and screws were loose, but he would have to return a few days later with the appropriate parts. (Id.) On January 19th, the repairman came back to plaintiff's house, but did not completely fix the door. (Id. at 35.) Mrs. Levine tested the door in front of the repairman, and discovered that it was "still shaky" and "loose." (Id.) However when she told the repairman that the problems remained, he allegedly said to her, "this is it, that's the best he could do and he's not coming back." (Id.) She testified that, after the alleged repair, the dishwasher door remained "shaky, loose, slant[ed], [and] never leveled right." (Id. at 41.) When asked whether the condition got worse after January, she stated that the door may have dropped an inch or so. (Id.) However, she did not call a service technician again until after the accident.⁵ (Id. at 40.)

A Sears computer generated printout of the service history for January 19th indicates that the Levines had requested service, because the dishwasher was "making [a] loud noise." (Service history printout, dated Jan. 19, 1999, attached to Grunfeld Aff. as Ex. 9.) Another printout for that date confirms that a service person was sent to plaintiffs' home, but indicates under "Technician's comments" that the service performed was to "clean out [the] pump." (Id.) The job code description for that date also states, "cleaning pump." (Id.) There is no indication in Sears's records that, in January 1999, plaintiffs complained about the door or that repairs were made to it.

In June of 1999, after the accident, plaintiffs hired Herbert Aronson, a mechanical engineer, on the recommendation of counsel, to scrutinize the dishwasher door and to give his "expert" opinion as to the efficacy of the alleged repair.⁶ (See Herbert Aronson Deposition ("Aronson Dep.") at 44-45, attached to Hodges Aff. as Ex. G; Aronson Report at 1, attached to Hodges Aff. as Ex. H.) He was not asked to examine the dishwasher door for any design or manufacturing defects, and, accordingly, did not render an opinion in his report as to those issues. (See Aronson Dep. at 44-46.)⁷

Mr. Aronson inspected the machine and, based on his own observations and information provided to him by Mrs. Levine, made the following conclusions. (See Aronson Dep. at 113-14.) He found that the dishwasher door opened beyond its horizontal position because the right door stop, which was designed to limit the opening of the dishwasher door to its approximate horizontal position, had "been subjected to a structural failure and the block attachment screws were found to be missing." (See Aronson Report at 3.) He also found that the tension springs, which were designed to "dampen (slow down) the free fall motion" of the door, had "either failed" or had "become disengaged." (Id. at 4; Aronson Dep. at 85.) Mr. Aronson testified, however, that he never actually observed the tension springs, because that would have required him to take apart the door frame, which he did not do. Instead, he based his finding on Mrs. Levine's assertion that the repairman neglected to repair the springs and the door frame, and on his own observation that the door would free fall into its open position without "damping action." (Aronson Report at 4; Aronson Dep. at 87, 114.) Mr. Aronson concluded that the inadequacy of the alleged service repair created a "tripping hazard for Mrs. Levine," based on her expectation that the door would remain in its normal level position, and not drop while she was unloading dishes. (See Aronson Report at 5; Aronson Dep. at 114.)

On or about December 4, 2000, plaintiffs commenced this action in the New York Supreme Court, Kings County. The action was then removed to this Court based on diversity jurisdiction. (See Notice of Removal, attached to Hodges Aff. as Ex. B.) Plaintiff raises multiple causes of action sounding in negligence, strict product liability, and breach of warranty.⁸ She alleges that the dishwasher door had both manufacturing and design defects, that Sears failed to adequately repair the dishwasher door, and that Sears failed to warn her of a dangerous condition. Mr. Levine raises one claim for loss of services due to his wife's injuries. On December 7, 2001, Sears moved for summary judgment. Sears argues that there is no genuine issues of material fact as to any of plaintiffs' claims, and that summary judgment must therefore be granted as a matter of law. Defendant also argues that, if the Court determines that triable issues exist, Mr. Aronson should not be allowed to testify as an expert witness at trial.

Plaintiffs oppose summary judgment, arguing that genuine issues of material fact exist as to the following: (1) whether plaintiff complained about the dishwasher door prior to the accident; (2) what repairs, if any, the defendant made in January 1999; (3) whether defendant's own computer generated business records are incomplete, unintelligible, subject to manipulation, and unreliable;⁹ and (4) whether defendant's service technician is an incredible witness. Notably, these issues of fact pertain only to the question of whether Sears had notice of the need to repair the dishwasher door, and whether such repairs were made. By asserting that these are the only issues of fact, plaintiff has effectively conceded that no material fact issues exist as to her strict products liability and breach of warranty claims. Nevertheless, the Court will endeavor to determine whether material issues of fact exist as to all of plaintiff's claims. Cf. Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001) (holding summary judgment may only be granted if appropriate, not simply because...