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April 7, 1999


The opinion of the court was delivered by: Cedarbaum, District Judge.


Ronald E. Anderson, Jr. sues for serious injury to his eye caused by a rebounding hook on a stretchable cord manufactured by defendant Bungee International Manufacturing Corp. ("Bungee"). Anderson asserts that the design of Bungee cords is defective and unreasonably dangerous. Anderson moves for partial summary judgment based on the affirmative use of collateral estoppel to establish his claim of design defect. Bungee moves for summary judgment on Anderson's claims for breach of express warranty and duty to warn. Defendant The Home Depot, Inc. joins in Bungee's motion. For the reasons that follow, the motion of Bungee and The Home Depot is granted, and Anderson's motion is denied.


On February 27, 1995, Anderson, a selfemployed construction contractor who resides in New York, went to a Home Depot store in Danbury, Connecticut to buy lumber for a construction project. (Anderson Dep. at 10-11, 109, 123-24.) It was raining, so Anderson decided to buy a tarp and stretch cords to cover the bed of his pickup truck. (Id. at 127.)

Anderson purchased a 23-piece "assortment pack" containing Bungee cords of varying diameters and lengths, the shortest being ten inches and the longest, 40 inches. (Id. at 135; Higgins Aff.*fn1, Ex. E.) Anderson testified at his deposition that the only printed material he read on the bag was the writing that pertained to the sizes of the cords. (Anderson Dep. at 136-37.) According to Anderson's subsequent affidavit submitted on these motions, he also noticed the words "Made in the U.S.A. We Make Our Products Where We Make Our Home[s] — America" and "Premium Quality" printed on the bag, as well as five drawings showing recommended uses for the cords. (Anderson Aff. ¶ 4.) Anderson purchased the bag without speaking to any Home Depot employee. (Anderson Dep. at 139-40, 143.)

Anderson did not read the warning regarding proper use. (Anderson Dep. at 136; Anderson Aff. ¶ 4.) The warning occupies approximately 25 percent of the back of the Bungee package. "WARNING! WARNING! WARNING! WARNING!" is printed at the top in red letters. Below that appears the following: "Misuse of the Bungee cord can cause severe injury to the user. . . . AVOID INJURY. READ THE FOLLOWING FOR YOUR SAFETY." It warns that stretching the cord beyond 75 percent of its unstretched length can cause rebounding or failure of the cord or hook, "causing severe injury to an eye or other parts of the body." It also warns: "DO NOT stretch a BUNGEE toward or away from you to avoid being struck by a rebounding hook. Pull to one side. Keep your head and body out of the rebound path. . . . It's best to use protective eye wear when stretching, fastening or releasing hooks. A rebounding hook is dangerous." Other than the Bungee logo, the words "Premium Quality" and the "Made in the U.S.A." emblem, the warning is the only printed material on the back of the package. (Higgins Aff., Ex. E; Enclosure to Higgins 6/19/98 Letter.)

Anderson loaded the lumber in the bed of his pickup truck and then began securing the tarp with the Bungee cords. (Anderson Dep. at 148-49, 153-71.) After securing the tarp on the driver's side and the front of the passenger's side of the bed with cords, Anderson reached the rear of the passenger's side. As he had at the other corners, Anderson put one hook into the eyelet of the tarp and stretched the cord over the utility box, which was seated on the wall of the truck. Anderson stretched the 13-inch cord to a length of 18 to 20 inches and hooked the other end in the drainage hole in the bottom of the utility box. As he began to stand up, the upper hook "distorted," became dislodged and hit him in the left eye. (Id. at 197-202, 211-15, 217.)

Anderson filed a complaint against Bungee and The Home Depot on January 12, 1996. The complaint alleges, inter alia, that the Bungee cord that struck Anderson was negligently and defectively designed and manufactured. It asserts claims under theories of negligence, including failure to warn (first and fifth causes of action), strict products liability, also including failure to warn (second cause of action), and breach of express and implied warranties of merchantability and fitness (third and fourth causes of action).

Subject matter jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332.


A motion for summary judgment is granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The judge's role in summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a genuine issue exists, a court must "examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." In re Chateaugay Corp., 10 F.3d 944, 957 (2d Cir. 1993). Nonetheless, "[t]he mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505.

The parties agree that New York substantive law applies.

I. Anderson's Motion for Collateral Estoppel

Based on the judgment in a prior action against Bungee, Dudley v. Bungee, Civ. No. 93-0021-C (W.D.Va.), Anderson moves for an order pursuant to Fed.R.Civ.P. 56 to estop Bungee from "denying at trial that it was not negligent [sic] in its production of its utility stretch cord product." (Notice of Motion.) At oral argument, Anderson's counsel clarified that Anderson is seeking affirmative collateral estoppel on the issue of the defectiveness of the Bungee cord's design. (Tr. 30.)

A. The Prior ...

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