Paniagua v. Walter Kidde Portable Equip., Inc.

• Decision Date: 27 April 2016
• Docket Number: 15 Civ. 1858 (PAE)
• Parties: Jeremy Paniagua, Plaintiff, v. Walter Kidde Portable Equipment, Inc. Defendant.
• Court: U.S. District Court — Southern District of New York

183 F.Supp.3d 473

Jeremy Paniagua, Plaintiff,

v.Walter Kidde Portable Equipment, Inc. Defendant.

15 Civ. 1858 (PAE)

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

Signed April 27, 2016

James Thomas Hunt, Jr., Slater Tenaglia Fritz & Hunt, Ocean City, NJ, for Plaintiff.

Peter Joseph Fazio, Aaronson Rappaport Feinstein & Deutsch, LLP, New York, NY, Defendant.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

On February 7, 2005, a fire erupted in plaintiff Jeremy Paniagua's New York City apartment, killing his mother and causing Paniagua, then age 11, to sustain severe injuries. The statute of limitations was tolled for nearly seven years while Paniagua was a minor. Paniagua now brings this products liability action, alleging that the smoke alarm present in the apartment on the night of the fire malfunctioned, denying Paniagua and his mother sufficient warning to enable them to escape safely. Paniagua claims that that alarm was an ionization smoke alarm made by defendant Walter Kidde Portable Equipment, Inc. ("Kidde").¹

Kidde now moves for summary judgment, on the ground that Paniagua has not adduced evidence sufficient to support a finding that the smoke alarm in the apartment was a Kidde product. For the reasons that follow, Kidde's motion is granted.

I. Background

A. Factual Background²

1. The Parties and the Model No. 916 Alarm

Paniagua, today age 22, is a citizen of New York. Compl. ¶ 36.

Kidde is a North Carolina corporation that designs, manufactures, and distributes smoke alarms. Answer ¶ 37. Relevant here, by 2002, Kidde had begun manufacturing the smoke alarm brand at issue: its Model No. 916 alarm, which uses ionization smoke detection technology.³ See Pl. 56.1, ¶¶ 41–42; Def. Supp. 56.1, ¶¶ 41–42. The Model No. 916 alarm is battery-operated and equipped with a flashing red LED light, which is designed to "rapidly flash [ ] every 2 seconds" when "products of combustion are sensed." Pl. 56.1, ¶¶ 39–43; Def. Supp. 56.1, ¶¶ 39–43.

2. The Fire

In the years leading up to the fire, Paniagua lived with his mother, Jeanette Montanez, and his sister Mallory Claudio in an apartment owned by the New York City Housing Authority ("NYCHA"). Def. 56.1, ¶ 1; Pl. 56.1, ¶¶ 1, 23; Def. Supp. 56.1, ¶ 23; Hunt Decl., Ex. B ("FDNY Rpt."), at 2. The apartment, located at 123 East 112th Street in New York City, was equipped with one smoke alarm, mounted on the hallway ceiling. Pl. 56.1, ¶¶ 23–24; Def. Supp. 56.1, ¶¶ 23–24. Paniagua and Claudio have both attested that the smoke alarm was battery-operated, a fact they recall from having helped their mother change its batteries. Hunt Decl., Ex. C ("Paniagua Aff."), ¶¶ 11–16; id ., Ex. D ("Claudio Aff."), ¶¶ 8, 10–11; Pl. 56.1, ¶¶ 25–27; Def. Supp. 56.1, ¶¶ 25–27.

Around midnight on February 7, 2005, a fire broke out in the apartment. FDNY Rpt. 2. Paniagua, Montanez, and Claudio were asleep inside. See Pl. 56.1, ¶ 32; Def. Supp. 56.1, ¶ 32; Paniagua Aff. ¶ 18; Claudio Aff. ¶ 12. Claudio was awakened by the sound of the smoke alarm. Claudio Aff. ¶ 12. She exited her bedroom and saw thick "pitch black" smoke in the hallway. Pl. 56.1, ¶¶ 32–33, 37; Def. Supp. 56.1, ¶¶ 32–33, 37. She attests that all she could see through the smoke was "a red blinking light on the ceiling." Pl. 56.1, ¶ 34; Def. Supp. 56.1, ¶ 34.

According to an incident report prepared by the New York City Fire Department (the "FDNY"), the fire originated in Paniagua's living room, engulfed the walls, ceiling, and contents of that room and the hallway, and spread into the bathroom, where Paniagua and Montanez were located. Pl. 56.1, ¶ 38; Def. Supp. 56.1, ¶ 38; FDNY Rpt. 2. Montanez was killed. Pl. 56.1, ¶ 2; Def. 56.1, ¶ 2. Paniagua was removed from the bathtub by a firefighter and sustained respiratory burns and second- and third-degree burns to his upper body. FDNY Rpt. 2. He was transported to the hospital in critical condition. Id . Claudio, who was rescued from her bedroom, sustained minimal injuries. See id.

3. Paniagua's Claims and Kidde's Defenses

Paniagua's Complaint alleges that the alarm in the apartment on February 7, 2005 ("the Alarm") was a Model No. 916. See Compl. ¶¶ 14, 68, 73–74. It alleges that the ionization smoke alarms Kidde manufactured, including the Model No. 916, were "unreasonably dangerous, hazardous and defective" in that they "sound[ed] between fifteen to twenty minutes later than similar photoelectric alarms in smoldering fires." Id. ¶¶ 8, 12. This defect, the Complaint alleges, proved deadly on the night of February 7, 2005, because the alarm in Paniagua's apartment "did not sound to provide a timely warning of the fire that had started in the family's living room." Id. ¶ 14. The Complaint alleges that Paniagua "would have escaped with his mother unharmed if his apartment had been equipped with a non-defective photoelectric smoke detector which would have given timely warning of the [smoldering] fire." Id . ¶ 21.

Kidde denies these allegations. Answer ¶¶ 8, 12, 14, 21. Most relevant here, it argues that there is no non-speculative basis on which a jury could find that the alarm in the apartment on the night in question was a Kidde product.

4. Evidence Bearing on the Manufacturer of the Alarm in Paniagua's Apartment

The statute of limitations for Paniagua's claims was tolled until he reached majority, and he did not initiate this lawsuit until nearly 10 years after the fire. See Dkt. 8, at 2. The passage of time has unavoidably resulted in the disappearance of potentially relevant evidence, including evidence bearing on the issue that is the focus of Kidde's summary judgment motion: whether the Alarm was, in fact, a Kidde product. See id .

Most centrally, although Paniagua and Claudio recall that some form of battery-operated smoke alarm was installed in their apartment, they do not claim to recall its manufacturer, brand, or model number. See Paniagua Aff. ¶¶ 11–16; Claudio Aff. ¶¶ 8, 10–11.⁴ And no direct evidence survives as to the make or model of the Alarm. The Alarm was not preserved; no photographs depicting it exist; and no eyewitness has come forward to identify the Alarm as a Kidde product. Nor has any physical evidence been adduced that identifies Kidde as the manufacturer of that particular alarm. Def. 56.1, ¶ 17; Pl. 56.1, ¶ 17.⁵

In the face of this gap, Paniagua has pointed to four items (or categories) of evidence, which, he argues, together would permit a factfinder to identify Kidde as the Alarm's manufacturer. For the purposes of resolving this motion, the Court assumes arguendo that this evidence would all be admissible at trial.

In fact, the Court has substantial doubt as to the admissibility of the latter two sets of evidence. The third consists of NYCHA records which Paniagua claims to have obtained outside of the discovery process in this case, through a Freedom of Information Law (FOIL) request made to the NYCHA by, Paniagua states, a third party, a "Joseph Fleming."⁶ See Hunt Decl., Ex. A. The fourth consists of a report prepared by the FDNY after the fire; Paniagua does not state how he obtained this document. See FDNY Rpt. These documents came to light in discovery when, in response to a request by Kidde to Paniagua for admissions as to evidence identifying Kidde as the Alarm's manufacturer, Paniagua furnished these records to Kidde. See Pl. Br. 13–14. However, as of the close of discovery, and indeed as of an ensuing pre-motion conference held to discuss Kidde's anticipated summary judgment motion, these documents had not been certified by the NYCHA or the FDNY as an official or business record. See Tr. 10. Nor did Paniagua seek to depose a representative of either agency, which might have served to authenticate and/or to explain these records, or to take any depositions.⁷ See Tr. 32–34.

It appears that, during the summary judgment briefing process, Paniagua belatedly obtained certifications of these records by the NYCHA and FDNY. See Hunt Decl., Ex. A, at 1 (certification by NYCHA law department, dated January 14, 2016); FDNY Rpt. 1 (certification by FDNY official, dated January 2016; the precise date is illegible). But, as of the close of discovery, the records were uncertified and unauthenticated. See Tr. 10. The Court assumes the admissibility of these records here solely because, as explained below, even assuming the records' proper authentication and admissibility, summary judgment for Kidde would still be required, as the assembled evidence would not permit a finding that the Alarm was a Kidde product.

With that in mind, the four categories of evidence on which Paniagua relies for the claim that Kidde was the manufacturer of the Alarm are:

1. The recollections of Paniagua and Claudio : Paniagua and Claudio attest that the smoke alarm in their apartment was battery-operated, and that they recall helping their mother change the batteries. Paniagua Aff. ¶¶ 11–16; Claudio Aff. ¶¶ 8, 10–11. Claudio further attests that, during the fire, she saw a red blinking light on the ceiling. Claudio Aff. ¶ 14.

2. NYCHA records regarding the July 2004 replacement of the Alarm : The NYCHA was subpoenaed by Kidde to produce "all documents ... within your possession in reference to [the February 7, 2005 fire] ... and any and all records pertaining to fire alarms that may have been installed in [Paniagua's housing development] for the years 2002-2006." Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6. In response, the NYCHA produced one relevant document: an apartment inspection form that indicates that on July 14, 2004, some seven months before the fire,⁸ the NYCHA replaced the smoke alarm in Paniagua's apartment. Def. 56.1, ¶¶ 7–8; Pl. 56.1, ¶¶ 7–8, 31; Def. Supp. 56.1, ¶ 31.

3. Two NYCHA purchase orders : In response to Fleming's FOIL request, the NYCHA produced from its Financial Management System screen shots of two purchase orders for smoke alarms. See Pl. 56.1, ¶¶ 7, 29. The first, dated August 14, 2002, is for Model No. 916 battery-operated ionization alarms. Id. ¶ 29; Def. Supp. 56.1, ¶ 29. The second,...