The opinion of the court was delivered by: Skretny, District Judge.
1. By Order filed with the Clerk of the Court on October 28,
1997, this Court referred this case to the Honorable Carol E.
Heckman, United States Magistrate Judge, to hear and report on
all dispositive motions and directed Magistrate Judge Heckman to
issue a Report and Recommendation to this Court pursuant to
28 U.S.C. § 636(b)(1)(B).
2. On May 26, 1998, Defendant filed a Motion for Summary
Judgment pursuant to Federal Rule of Civil Procedure 56.
3. By Report and Recommendation filed October 22, 1998,
Magistrate Judge Heckman recommended that Defendant's Motion for
Summary Judgment be denied, finding that Defendant's motion was
premature in several respects and that genuine issues of material
fact precluded summary judgment.
4. On November 10, 1998, Defendant filed objections to the
Report and Recommendation of Magistrate Judge Heckman.
5. On January 21, 1999, this Court heard oral argument on
Defendant's objections to the Report and Recommendation of
Magistrate Judge Heckman.
6. This Court has carefully reviewed Magistrate Judge Heckman's
Report and Recommendation and thoroughly considered the pleadings
and materials submitted by the parties, as augmented by oral
argument before this Court, under the standards set forth in
28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 56, and
the relevant case law.
IT HEREBY IS ORDERED that this Court accepts Magistrate Judge
Heckman's Report and Recommendation in its entirety, including
the authorities cited and the reasons given therein, and that
Defendant's Motion for Summary Judgment is DENIED.
FURTHER, counsel for the parties shall appear before this Court
on Wednesday, April 21, 1999, at 9:00 a.m. in Part IV, United
States Courthouse, 68 Court Street, Buffalo, New York for a
FURTHER, out-of-town counsel may appear at this status
conference by telephone provided that they contact my chambers at
(716) 551-3086 with a telephone number at which they may be
reached for the conference by 4:00 p.m. on Monday, April 19,
REPORT AND RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. William
M. Skretny for pretrial matters, and to hear and report on
dispositive motions, in accordance with 28 U.S.C. § 636(b).
Defendant Outboard Marine Corporation has moved for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. For the reasons that follow, it is recommended that
defendant's motion be denied.
On November 11, 1996, plaintiff William Brooks filed the
complaint in this action on behalf of his minor son Matthew
Brooks against Harry Klopp (d/b/a Harry's Boat Shop), Andrew
Scott May and Outboard Marine for damages sustained by Matthew as
a result of an accident which occurred on June 25, 1996 (Item 1).
Jurisdiction was based on diversity of citizenship. On January
16, 1998, a stipulation of discontinuance was filed dismissing
the action against non-diverse defendants Klopp and May, leaving
Outboard Marine as the sole remaining defendant (Item 42).
The complaint sets forth the following causes of action against
1. Strict products liability;
2. Breach of implied warranty of fitness for a
The complaint does not contain any specific allegations about the
details of the accident, nor does it identify any specific defect
in the design of the outboard motor. Instead, the details of
plaintiff's claims have emerged during the course of discovery,
and the undisputed facts are as follows:
On June 25, 1996, Theresa Brooks drove her 14-year-old son
Matthew and his 15-year-old friend Andrew May to Harry's Bait
Shop, located on Old Orchard Creek in Waterport, New York, to
rent a boat for the boys to go fishing. Ms. Brooks rented a
14-foot aluminum boat equipped with an Evinrude six-horsepower
outboard motor from Harry Klopp at Harry's bait Shop. Matthew and
Andrew set out in the boat unsupervised.
Not long after they set out, Matthew's fishing line became
entangled in the propeller of the boat's outboard motor. Matthew,
who had been running the outboard, wrapped his fishing line
around his right hand several times to get a better grip on the
line, and reached down into the water in an attempt to free the
line from the propeller. ...