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June 1, 1994

SAFEPRO, INC., ET AL, Defendants.


The opinion of the court was delivered by: THOMAS J. MCAVOY


 Currently before the court is a motion by Safepro Inc. (hereinafter "Safepro") for summary judgment pursuant to Fed.R.Civ.P. 56. With due regard given to the submissions of the parties, and after concluding that oral arguments would not facilitate disposition of this matter, the court finds that summary judgment should be granted in favor of the defendant.

 I. Discussion

 The current action brought by William and Louise Hinkley stems from an accident that occurred on March 12, 1991 while the plaintiff was working for V.A.W. From the facts submitted to the court it appears that while in the course of his employment in the casting of molten aluminum, an explosion within a furnace caused molten aluminum to splatter on various portions of the plaintiff's body causing severe burns. At the time of this explosion, William Hinkley was wearing protective gear issued to him by his employer and manufactured by Safepro. This protective gear consisted of an apron, arm sleeves, and leg shields.

 In their action against Safepro, the plaintiffs allege that Safepro was negligent in defectively designing these protective devices and that this negligence resulted in the injuries sustained by William Hinkley. More specifically, the plaintiffs allege that the apron, leg shields and arm sleeves were defective in that they did not provide for "snug" fittings around their openings to prevent molten aluminum from flowing underneath them. It is important to note that the plaintiffs do not contend that the injuries sustained were the result of molten aluminum actually burning through the protective devices, but instead, were caused by the molten metal flowing underneath these devices.

 Safepro has moved for summary judgment on the basis that the devices worn by the plaintiff during the explosion were properly designed for their intended use and the plaintiffs have failed to establish that Safepro acted unreasonably in designing their products.

 2. Standard

 In deciding a summary judgment motion, Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate only when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party has established that no genuine question of material fact exists and that it is entitled to judgment as a matter of law, the burden shifts to the non-movant to come forward with a similar response setting forth "specific facts showing that there is a genuine issue for trial," absent which summary judgment will be granted. The opposing party "may not rest upon the mere allegations or denials of [his] pleading" (Fed. R. Civ. P. 56(e)) but rather must present "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Indeed, "conclusory allegations will not suffice to create a genuine issue. There must be more than a 'scintilla of evidence,' and more than 'some metaphysical doubt as to the material facts.'" Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252 and Matsushita Electric Industrial Co. V. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material fact, or defeat the motion through mere speculation or conjecture." Western World Insurance Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).

  Of course, it is well established that in deciding a motion for summary judgment, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party. See Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir. 1992); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). Further, it is equally well settled that "only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).

 3. Analysis

 Under New York law, a plaintiff injured by an allegedly defective product may seek recovery against the manufacturer on the basis of any one or more of four theories of liability. Depending upon the factual context in which the claim arises, the injured plaintiff, and those asserting derivative claims, may state a cause of action in contract, express or implied, on the ground of negligence, or on the theory of products liability. Victorson v. Bock Laundry Machine Co. 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275 (1975). In this case the plaintiffs have chosen to proceed upon the theory that Safepro was negligent in defectively designing the protective Apron, arm sleeves and leg shields that plaintiff were was at the time of the accident.

 In the landmark case of Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc. 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (Ct. App. 1976), the New York Court of Appeals set forth a new formula for determining liability based on the negligent design of a product. Prior to Micallef, New York had adopted a standard which held a manufacturer had no duty to guard against injury from a patent peril or from a source manifestly dangerous. See, Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). In Micallef, however, the Court of Appeals departed from this "patent danger" rule and in its place imposed upon the manufacturer the obligation to exercise that degree of care in the plan or design so as to avoid any unreasonable risk of harm to anyone likely to be exposed to the danger during the intended or unintended yet reasonably foreseeable use of the product. Micallef, supra, at 121.

 The Micallef decision articulated that "the degree of care" will vary with the surrounding circumstances and will involve a "balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of precaution which would be effective to avoid the harm." Id. at 121. The Micallef court noted that the rationale behind its decision was not to compel a manufacturer to clothe itself in the garb of an insurer, but rather ...

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