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December 29, 1995


The opinion of the court was delivered by: POOLER


 Defendant General Motors Corporation ("GM") moved for summary judgment dismissing all claims by plaintiffs Paula and Gregory Tiner (collectively, "the Tiners"). Paula Tiner ("Tiner") claims that she injured her neck, upper back, chest, and knees when she drove a GM-manufactured 1991 Chevrolet Caprice into an unlit lamp pole in a parking lot. Tiner believes that GM's defective design, manufacture, or installation of the air bag *fn1" and driver's side seat belt in the Caprice was either the sole or a contributing cause of her injuries. GM argues that Tiner has raised a crashworthiness claim because she does not allege that the defects in the air bag or seat belt caused her accident. GM thus contends that Tiner must establish a prima facie case showing that: (1) the air bag and seat belt were defectively designed; and (2) she suffered enhanced injuries as a result of those defects. GM also argues that Tiner's failure to ensure that the seat belts were preserved as evidence should preclude her from making any claims concerning them. Tiner responds (1) that because of the nature of the allegedly defective equipment, she is not required to establish the elements of a second collision case; (2) that, in any event, she has established a prima facie case on each of these elements; and (3) that she bears no responsibility for the destruction of the seat belts in the Caprice. I agree that the crashworthiness, or second collision, doctrine governs Tiner's complaint. Because Tiner failed to offer any competent proof of a defect in the seat belt or of enhanced injuries due to the alleged defects in the air bag, I grant defendant summary judgment dismissing the complaint.


 During the early morning hours of September 25, 1991, Tiner, who was acting in the course of her employment as a deputy sheriff with the Onondaga County Sheriffs Department, drove her patrol car into a pole set in concrete in a parking lot. Tiner estimated that her speed at the time of the collision was approximately twenty miles per hour. Another deputy sheriff estimated Tiner's speed at between fifteen and twenty miles per hour. Pictures of the accident scene show that the collision was head-on and that the patrol car front bumper hit the pole close to the center of the bumper.

 The air bag in the patrol car did not deploy, and Tiner states that the seat belt also did not operate properly. After the collision, Tiner's chest hit the steering wheel, and her knees struck the underside of the dash board. Tiner then moved backward, and her head hit the police cage behind her.

 Tiner and her husband, who makes a derivative claim for loss of consortium, commenced this action in New York State Supreme Court, Onondaga County, by service of a summons and complaint on GM on July 6, 1993. GM removed the action to federal court on July 13, 1993, based on the parties' diverse citizenship. Magistrate Judge Gustave J. Di Bianco's most recent scheduling order required that the parties disclose their expert witnesses by November 15, 1994, and complete all discovery by November 30, 1994. On November 14, 1994, the Tiners served a response to GM's demand for witness disclosure indicating that they knew of no expert witnesses they intended to call. After the completion of discovery, GM moved for summary judgment dismissing all of the Tiners' claims. I heard oral argument on GM's motion on March 6, 1995.


 I first address the standards for deciding a summary judgment motion. Next, I examine the applicable substantive law and find that New York State law regarding "second collision" cases governs this diversity action. Finally, I address the merits of GM's summary judgment motion.

 I. Summary Judgment Principles

 Summary judgment shall enter if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The materiality of facts must be determined with reference to the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the initial responsibility of demonstrating that there is no genuine issue of material fact to be decided. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). As to any issue on which the moving party does not have the burden of proof, the moving party may satisfy its burden by "pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

 "If the movant satisfies the burden of establishing that there is no genuine issue of material fact, then the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists." Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). In satisfying this burden, the non-moving party "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Fed. R. Civ. P 56(e). The opponent of summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "Merely colorable" evidence will not suffice as a basis for opposing summary judgment. Anderson, 477 U.S. at 249-50.

 In weighing a motion for summary judgment, the court must accept as true the non-moving party's evidence and make "all justifiable inferences" in the non-moving party's favor. Anderson, 477 U.S. at 255. The evidentiary standard governing proof at trial determines how the court must assess the evidence in its summary judgment decision. Id. at 254-55. In an ordinary civil case such as this one, plaintiffs must prove their case by a preponderance of the evidence, and the determinative standard is ...

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