the utility stretch cord that injured Mr. Dudley and the utility
stretch cord that injured Mr. Anderson are identical products."
(Id. ¶ 9.) Dr. Hendrickson states that "all dimensions for each
different hook remain proportionately the same," but he does not
state that the relative strengths of the sheaths and the hooks
are identical. (Id. ¶¶ 7, 8.) Anderson also introduces evidence
that the two hooks were made from a common raw material, had the
same manufacturing process and underwent the same inspection
process. However, Anderson must do more than show that the issues
in the two cases are very similar. In order for Anderson to
invoke the doctrine of collateral estoppel, he must show that the
issues in the two proceedings are "truly identical." Kramer v.
Showa Denko K.K., 929 F. Supp. 733, 750 (S.D.N.Y. 1996). Anderson
fails to do so.
D. Actual Litigation of the Issue
Of even greater importance, Anderson cannot show that the jury
in Dudley necessarily decided that the Bungee cord hook was
negligently or defectively designed.
The jury returned a general verdict for Dudley on the claim of
negligence. There is no basis to determine whether the jury found
Bungee liable for negligently failing to warn of a danger or for
negligently designing the hook.
While Anderson also claims both failure to warn and negligent
and defective design, the warning in Dudley was substantially
different from the warning here. (Morin Aff., Ex. C.)
The Fourth Circuit decision does not help Anderson. The issue
on appeal before the Fourth Circuit was whether there was
sufficient evidence from which a reasonable fact finder could
conclude that Bungee's negligence — not disputed on appeal —
proximately caused the accident. The Fourth Circuit concluded
that there was. This does not shed light on what the jury
determined in finding Bungee negligent. Nor is it equivalent to
the Fourth Circuit holding that the hook was negligently
designed. See Appel v. McNeil-P.P.C., Inc., No. CV 95-192, 1996
WL 705279, at * 2 (E.D.N.Y. Nov.26, 1996).
II. Bungee's Motion on the Failure to Warn Claim
Bungee moves for summary judgment dismissing Anderson's strict
products liability claim to the extent it seeks recovery for
failure to warn. Bungee argues that Anderson has failed to
demonstrate that any inadequacy of the warning on the Bungee cord
package proximately caused the injury to his eye. In particular,
Bungee argues that because Anderson did not read the warning, the
existing warning was not a proximate cause of the injury.
Anderson counters that the adequacy of the warning, and the
reasonableness of his failure to read the warning, are issues of
fact for the jury. Anderson argues that each cord in the
assortment pack should have had a separate warning tag on it. In
support, he shows that when Bungee sells cords without packaging,
it affixes the warning label directly to the cord. (Anderson
Aff., Ex. C at 250.)
Whether a warning is sufficient to alert the product user to
potential hazards is generally a question of fact to be
determined at trial and is not ordinarily susceptible to the
drastic remedy of summary judgment. Urena v. Biro Mfg. Co.,
114 F.3d 359, 366 (2d Cir. 1997) (applying New York law).
Nonetheless, a plaintiff has the burden of proving that the
absence of an adequate warning proximately caused his injury.
Banks v. Makita, U.S.A., Inc., 226 A.D.2d 659, 660,
641 N.Y.S.2d 875, 877 (2d Dep't 1996); Belling v. Haugh's Pools,
Ltd., 126 A.D.2d 958, 959, 511 N.Y.S.2d 732, 733 (4th Dep't
Here, the essential element of causation is missing. Anderson
admits that he did not read the warning on the package. He does
not proffer any evidence, and he does not assert in his complaint
his affidavit that he would have read the warning if it had been
located in a different place. Any such inference from the record
on these motions would be pure speculation. Because this is an
issue on which Anderson has the burden of proof, Bungee's motion
for summary judgment dismissing the failure to warn claim must be
granted. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986) ("Rule 56(c) mandates the entry of
summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial.").
Anderson relies on Johnson v. Johnson Chemical Co.,
183 A.D.2d 64, 588 N.Y.S.2d 607 (2d Dep't 1992). In that case, the
plaintiff failed to read the warning on an insecticide "bomb."
The warning on the can stated: "WARNING. USE ONLY ONE CAN PER
ROOM. WARNING. ALL FLAMES, PILOT LIGHTS, BURNERS AND OVENS MUST
BE TURNED OFF BEFORE USING THIS PRODUCT." The plaintiff activated
a can in her kitchen without turning off her pilot lights. A fire
ensued. The Second Department affirmed denial of summary judgment
on the inadequate warning issue, stating: "A consumer such as
[plaintiff] who, by her own admission, tends to ignore one sort
of label, might pay heed to a different, more prominent or more
dramatic label. The reasonableness of her behavior is for the
jury to decide." Id. at 611. In that case, the plaintiff had
testified at her deposition that she did not know what a pilot
light was. Indeed, she was unaware that there was a pilot light
on her stove. Id. at 608. Accordingly, she was able to show
that even if she had read the warning, she would not have
understood it and, thus, would not have avoided the accident.
See also Arbaiza v. Delta Int'l Mach. Corp., No. CV 96-1224,
1998 WL 846773, at *7 (E.D.N.Y. Oct.5, 1998) (Spanish-reading
plaintiff who did not read the warning label on a table saw
"raised an issue of fact that the warning was inadequate when it
was placed at knee height, was in small print and in English
These two unusual cases on which plaintiff relies are clearly
distinguishable. Anderson is literate in the English language and
does not point to any word in the warning on the package that he
does not understand.
Bungee also argues that Anderson cannot sue on the warning
because he had independent knowledge of the danger, see Belling
v. Haugh's Pools, Ltd., 126 A.D.2d 958, 511 N.Y.S.2d 732 (4th
Dep't 1987), and because the danger was obvious, see Bazerman v.
Gardall Safe Corp., 203 A.D.2d 56, 609 N.Y.S.2d 610 (1st Dep't
1994). In view of Anderson's failure to read the warning, it is
unnecessary to reach these issues.
III. Bungee's Motion on Breach of Express Warranty Claim
The complaint alleges that the defendants "expressly warranted"
that the Bungee cord was "safe and fit for the purposes for which
it was intended and for which it was being used at the time of
plaintiff's injury." (Compl. ¶ 33.) In particular, Anderson
alleges in his motion papers that the "Made in the U.S.A." and
the "Premium Quality" labeling on the package, together with the
five drawings showing recommended uses, caused him to believe
that the cord was "a good, strong, top notch American-made
product suitable for numerous uses." (Anderson Aff. ¶¶ 4, 6.)
Anderson argues that "he was injured because the product . . .
failed to live up to these standards." (Pl.Mem. at 6.)*fn4
to Anderson's affidavit, the statements on the package "played
some role in [his] decision to purchase this product." (Anderson
Aff. ¶ 6.)
Bungee argues that the statement "Premium Quality" is puffery
and not an express warranty. Bungee also argues that the slogan
"Made in the U.S.A." is puffery to the extent it connotes that
the goods are of superior quality.
The Uniform Commercial Code, as adopted in New York, provides
that "[a]ny description of the goods which is made part of the
basis of the bargain creates an express warranty that the goods
shall conform to the description." N.Y.U.C.C. § 2313(1)(b)
(McKinney 1993). At a minimum, a plaintiff must show that there
was an affirmation of fact or promise by the seller, the natural
tendency of which was to induce the buyer to purchase.
Schimmenti v. Ply Gem Indus., Inc., 156 A.D.2d 658, 659,
549 N.Y.S.2d 152, 154 (2d Dep't 1989).
Such an affirmation of fact must be distinguished from puffery.
The Uniform Commercial Code provides that a "statement purporting
to be merely the seller's opinion or commendation of the goods
does not create a warranty." N.Y.U.C.C. § 2313(2) (McKinney
1993); see also Independent Order of Foresters v. Donaldson,
Lufkin & Jenrette Inc., 919 F. Supp. 149, 152 (S.D.N.Y. 1996)
("opinions, puffery and other similar language [are] not
actionable as a breach of warranty"). For instance, in Hubbard
v. General Motors Corp., the plaintiffs claimed that an
automobile manufacturer breached an express warranty by
outfitting a model of a car with a defective braking system. No.
95 Civ. 4362, 1996 WL 274018 (S.D.N.Y. May 22, 1996). Judge
Schwartz held that print advertisements stating that the vehicle
was "popular," "most dependable" and "Like a Rock" were puffery
and did not create an express warranty: "[The statements] are
generalized and exaggerated claims, which a reasonable consumer
could not rely upon as statements of fact. Moreover, these
statements make no reference whatsoever to the type or quality of
the vehicles' braking system." See also Serbalik v. General
Motors Corp., 246 A.D.2d 724, 726, 667 N.Y.S.2d 503, 504 (3d
Dep't 1998) (statement that automobile was "of high quality" and
other similar statements were "nothing more than innocent
`puffery'"); Scaringe v. Holstein, 103 A.D.2d 880, 881,
477 N.Y.S.2d 903, 904 (3d Dep't 1984) (defendant's statement in
advertisement that car was in "excellent condition" was
In this case, Anderson has not made a showing that the
statements "Premium Quality" and "Made in the USA," to the extent
they connote superior quality, are descriptions of the goods and
were a part of the basis of the bargain within the meaning of
N YU.C.C. § 2-313. The statements that the Bungee cords are of
premium or superior quality are generalized statements of
salesmanship and are indistinguishable from statements that this
and other courts have held to be puffery under New York law. The
statements in this case are not descriptions of particular
characteristics of the goods and are therefore unlike the
statements at issue in the cases cited by Anderson. See Kates
Millinery, Ltd. v. Benay-Albee Corp., 114 Misc.2d 230,
450 N.Y.S.2d 975 (Civ.Ct. 1982) (holding that seller breached express
warranty that pressing machine was "one year old" and "in perfect
condition," where the court found that machine was at least five
years old); Bernstein v. Sherman, 130 Misc.2d 741, 497 N.Y.S.2d 298
(Justice Ct. 1986) (representation by mechanic, in response
to a specific question by plaintiff buyer, that frame of used
automobile was in "good condition" constituted an express
warranty); Spiegel v. Saks 34th St., 43 Misc.2d 1065,
252 N.Y.S.2d 852 (Sup.Ct.
App.Term 1964) (statements in advertisement and on package that
beauty cream was "safe," "clinically proven and absolutely safe"
and "completely safe," and that cream "safely fades away" age
spots, constituted an express warranty of safety).
For the foregoing reasons, Anderson's motion for partial
summary judgment on the ground of collateral estoppel is denied,
and the motion of Bungee and The Home Depot for partial summary
judgment dismissing the failure to warn and express warranty
claims is granted.