Peretz v. Home Depot Inc.

• Decision Date: 18 November 2009
• Docket Number: No. 08 Civ. 4106(BMC).,08 Civ. 4106(BMC).
• Citation: 671 F.Supp.2d 386
• Parties: Omri PERETZ, Plaintiff, v. The HOME DEPOT INC., Emerson Electric Co. d/b/a Ridgid and Saint-Gobain Abrasives, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

671 F.Supp.2d 386

Omri PERETZ, Plaintiff, v. The HOME DEPOT INC., Emerson Electric Co. d/b/a Ridgid and Saint-Gobain Abrasives, Inc., Defendants.

No. 08 Civ. 4106(BMC).

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

November 18, 2009.

Kenneth J. Gorman, Kenneth J. Gorman, Esq., P.C., Michael David, for Plaintiff.

Rosario M. Vignali, Wilson, Elser, Moskowitz, Edleman & Dicker, LLP, for Defendants.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

This is a diversity personal injury suit in which plaintiff alleges that he was injured while using a power tool and attachment, both sold to him by defendant, The Home Depot, Inc. ("Home Depot").¹ The complaint originally asserted claims for strict products liability and negligence. However, by prior Order, this Court excluded the testimony of plaintiffs expert as to the alleged defects in the products for its failure to meet the requirements for expert testimony under Fed.R.Evid. 702 as explained in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 2799, 125 L.Ed.2d 469 (1993). Plaintiff thereupon voluntarily dismissed his strict liability claim, leaving only his negligence claim.

Home Depot now moves for summary judgment dismissing the remaining negligence claim on the ground that plaintiff cannot make out a prima facie case without the use of expert testimony. I deny the motion for the reasons set forth below.

BACKGROUND

Plaintiff is a professional locksmith. According to his version of the facts, which must be presumed true for purposes of this motion, he was hired to open a safe at a fast food restaurant. Initially, he purchased a 4½ inch "grinder" from Home Depot to cut through the safe, but it was insufficient. He therefore went back to Home Depot to exchange it for something that could cut through the safe. He asserts that he approached a salesman and described what he needed; the salesman recommended a "Ridgid" brand 7-inch angle grinder. Plaintiff then asked the salesman for blades that could be used with the grinder to cut through the safe, and the salesman recommended a flat "Norton" brand cut-off wheel. It is uncontested that this advice, if given, was wrong; although the Norton cut-off wheel can be safely used to cut metal, it is not suitable or intended to be used with an angle grinder like the Ridgid.

Plaintiff maintains that by using a flat cutting wheel, rather than a recessed cutting wheel, the nut which attached the flat wheel to the grinder's recessed flange placed too much pressure on the wheel, causing it to break and fly off the grinder. Plaintiff also contends that the grinder's guard was only intended to be used with a grinding wheel, not a cut-off wheel that is intended to be used with a circular saw, so it could not adequately protect plaintiff. When plaintiff attempted to use the Ridgid grinder with the Norton wheel, the wheel broke apart and pieces struck the back of plaintiffs left wrist and lower forearm, slicing his tendon.

DISCUSSION

I. The Standard for Summary Judgment

It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 592 (2d Cir.1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party seeking summary judgment bears the burden of informing the Court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his or her favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Although the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences against the moving party, Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir.2002), a party opposing a properly supported motion for summary judgment may not rely on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). The relevant substantive law will identify the facts that are material for purposes of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

Finally, "[t]hough courts are hesitant to grant summary judgment in negligence cases, `the mere fact that a case involves a claim of negligence does not preclude a granting of summary judgment.'" Smith v. N.Y. Enter. of Am. Inc., No. 06 Civ. 3082, 2008 WL 2810182 (S.D.N.Y. July 21, 2008) (quoting Hood v. Regency Mar. Corp., No. 99 Civ. 10250, 2000 WL 1761000 (S.D.N.Y. Nov. 30, 2000)).

II. Expert Testimony in Negligence Cases

Defendant asserts that plaintiffs failure to offer expert testimony is fatal to three aspects of his prima facie case: (1) whether and to what extent a duty exists between a retailer and a customer concerning advice given to the customer; (2) whether that duty was breached; and (3) whether any breach of the duty was the cause of plaintiffs injury. I hold that the record contains sufficient evidence to permit a jury to determine these issues.

As the Supreme Court has noted:

[E]xpert testimony not only is unnecessary but indeed may properly be excluded in the discretion of the trial judge "if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation ..."

Salem v. U.S. Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962) (quoting United States Smelting Co. v. Parry, 166 F. 407, 411, 415 (8th Cir.1909)). In this diversity action, the question of whether or not expert testimony is required to prove negligence is a question of New York State law. Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 27 (1st Cir.2006). New York courts have held that expert testimony is often necessary to prove malpractice by a medical professional. E.g., Gibson v. D'Amico, 97 A.D.2d 905, 470 N.Y.S.2d 739 (N.Y.App.Div.1983). New York courts have similarly held that expert opinion is generally necessary to evaluate the standard of care owed by other kinds of professionals, except where the jury is otherwise competent to evaluate whether the defendant has deviated from the standard of care. See 530 East 89 Corp. v. Unger, 43 N.Y.2d 776, 402 N.Y.S.2d 382, 373 N.E.2d 276 (1977) (architects); Gertler v. Sol Masch & Co., 40 A.D.3d 282, 835 N.Y.S.2d 178 (N.Y.App. Div.2007) (accountants); 470 Owners Corp. v. Heimer, 258 A.D.2d 558, 685 N.Y.S.2d 747 (N.Y.App.Div.1999) (engineers); Greene v. Payne, 197 A.D.2d 664, 602 N.Y.S.2d 883, 885 (N.Y.App.Div.1993) (attorneys).

Although retail salespeople undoubtedly receive some training before being released to the sales floor, and without meaning to denigrate the essential role they play in our society, it is too big a stretch to equate them with professionals in determining whether a jury needs expert testimony to reach a conclusion concerning an appropriate standard of care. Jurors have either worked as or dealt with retail salespeople throughout their lives, and can be expected to have the ability to determine what a reasonable level of care is without the need for an expert. Indeed, as the Supreme Court suggested of the proposed naval architecture expert in Salem, it is not clear that a retail sales "expert" could render testimony that would be helpful to the jury on the issue of whether salespeople have a duty to give accurate information concerning the compatibility of products that the store sells. The existence and scope of a duty between salesperson and customer is well within the common daily experience of jurors.

Even in cases involving specialized trades, expert testimony on the standard of care is not invariably required. In Pearce v. Feinstein, 754 F.Supp. 308 (W.D.N.Y.1990), for example, the plaintiff sued a hospital for injuries sustained from a defective catheter despite the hospital having received recall notices for the catheter from its manufacturer. The hospital sought judgment notwithstanding the verdict in the plaintiff's favor based on the plaintiffs failure to offer expert testimony on the standard of care, but the Court denied the motion:

Defendant's suggestion that the field of materials management is so specialized as to require expert testimony could apply with equal force to any industry, and is tantamount to stating that a jury requires expert testimony on supermarket management in order to assess whether a banana peel left on the floor of the produce section is unsafe. A jury can, and in this case did, decide on the basis of common experience that a hospital acts unreasonably in failing to ensure that materials it furnishes for physicians' use have not been recalled because of known defects.

Id. at 311.

Similarly, in Adorno v. Correctional Services Corp., 312 F.Supp.2d 505 (S.D.N.Y. 2004), the plaintiff sued the private prison facility in which she was housed, alleging negligence in retaining a prison guard who sexually abused her, and contending that the defendant had notice of prior sexual misconduct...