The opinion of the court was delivered by: Constance Baker Motley, U.S.D.J.
Plaintiffs Scott and Patricia Hutton sued defendants Dresser Equipment
Group (incorrectly sued as Dresser Wayne Petroleum and Dresser
Industries, Inc.) ("Dresser") and Globe Hoist Co. ("Globe"), for damages
incurred when a car fell from a lift, manufactured by defendants, on
plaintiff Scott Hutton, crushing him. The case was initially filed in New
York State Court and was removed to this court on December 1, 1999. On
April 16, 2001, defendant Dresser filed the instant motion for summary
The complaint alleges several theories of liability.*fn1 However,
plaintiffs state in their memorandum of law in opposition to Dresser's
motion for summary judgment that the only theory of liability they are
pursuing is the failure to warn claim. As set forth below, because
plaintiffs have failed to establish a genuine issue of material fact as to
whether Dresser had a duty to warn of the dangers associated with the
lift in question, Dresser's motion for summary judgment is granted.
On January 29, 1999, Hutton and another mechanic, Robert Grant, were
servicing a 1987 Nissan Stanza with a starter problem (the "Stanza").
Grant and the manager of the Station, Michael Hines, moved the Stanza
over the lift. Grant then positioned the lift arms and pads under the
Stanza and raised it slightly to check the balance of the car. The Stanza
appeared to be properly balanced, so Grant raised the Stanza to the lift's
full height. Hutton then began to work under the car with Grant. As
Hutton pulled the starter cable located near the front of the Stanza,
Grant felt the Stanza move forward. Grant stepped out from underneath the
Stanza and screamed that the car was moving. Hutton attempted to run away
from the Stanza, towards the front of the car and the wall of the
garage. The Stanza fell forward and landed on Hutton's body.
Grant, a mechanic of thirty years, has testified that he properly
loaded the Stanza. The Occupational Safety and Health Administration
("OSHA") inspected the lift and found that failure of the lift was not
the cause of the accident. The Station resumed using the lift and has
continued to use the lift on a daily basis without incident.
Plaintiffs have submitted evidence going to two possible warnings they
claim would have prevented Hutton's accident. First, plaintiffs have
submitted a pamphlet entitled "Lifting it Right," prepared by the
Automotive Lift Institute ("ALI"). The pamphlet provides, inter alia,
instructions for evasive action to be taken by a person working under a
car in the event of the car falling off the lift. In particular, the
pamphlet instructs the mechanic to "[r]un in the opposite direction of the
fall, but not toward the wall, workbench, or other area that might trap
you between that object and the car." Dresser, a member of ALI,
distributed the pamphlet to purchasers of new lifts after 1987 but did
not distribute the pamphlet to prior purchasers. Second, plaintiffs have
submitted the report of a safety expert, William Brogan, stating that a
person working under a car should run toward the center post of the
hydraulic lift to avoid a falling car.
Finally, plaintiffs contend that, based upon, inter alia, Dresser's
experience and participation in ALI, Dresser was aware that there was a
particular danger of a front-heavy vehicle slipping off of the kind of
lift in question. Plaintiffs have submitted sales literature and
installation manuals from Dresser, not passed on to Dresser's customers,
which indicate that the lift should not be used to lift vans and trucks.
The Stanza was not a van or a truck. However, it was a front-wheel drive
with most of the weight placed in the front of the vehicle, as is the
case with vans and trucks. At the time the lift was manufactured, most
cars had the weight evenly
distributed throughout the frame. Grant, the
mechanic who loaded the Stanza, has testified in deposition that he was
aware that the Stanza was a front-wheel drive car with most of the weight
distributed towards the front. Grant further testified that he was aware
that front-heavy vehicles needed to be positioned differently on the
lift, knew the proper techniques for positioning such vehicles and,
indeed, properly positioned the Stanza.
Plaintiffs claim that a modern front-heavy car is more likely to fall
off a lift than a car with the weight evenly distributed. Through its
participation in ALI, plaintiff claims, Dresser became aware of the danger
that modern cars might fall off the lift. Therefore, plaintiffs claim,
Dresser should have provided a warning to operators of the lift informing
them of the possibility that a car might fall off the lift and
instructing them: (1) to run in the opposite direction of a fall; (2) not
to run toward obstacles; and/or (3) to run towards the center post of the
The standard for summary judgment is that "[u]ncertainty as to the true
state of any material fact defeats the motion." Gibson v. Am. Broad.
Corp. 892 F.2d 1128, 1132 (2d Cir. 1989). The movant must demonstrate the
absence of a genuine issue of material fact. If the movant carries this
burden, the burden then shifts to the non-moving party to produce
concrete evidence sufficient to establish a genuine unresolved issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986); Dister v. Contimental Group. Inc., 859 F.2d 1108, 1114 (2d Cir.
1988). The court then must view the facts in the light most favorable to
the non-movant and give that party the benefit of all reasonable
inferences from the evidence that can be drawn in that party's favor. See
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). The court
neither weighs evidence nor resolves material factual issues but only
determines whether, after adequate discovery, any such issues remain
unresolved because a reasonable factfinder could decide for either
party. See Anderson v. Liberty Lobby. Inc. 477 U.S. 242, 249 (1986);
Gibson, 892, F.2d at 1132. However, neither conclusory statements,
conjecture, nor speculation suffice to defeat summary judgment. See Kulak
v. City of New York 88 F.3d 63, 71 (2d Cir. 1996).
In New York, to survive a motion for summary judgment on a defective
products claim, a plaintiff must demonstrate by a preponderance of the
evidence that (1) the product is defective because it is not reasonably
safe at the time it was manufactured and sold; (2) the product was used
for a normal purpose; (3) the defect was a substantial factor in causing
the plaintiff's injuries; (4) the plaintiff, by the exercise of
reasonable care, would not have both discovered the defect and
apprehended its danger, and (5) the plaintiff could not have otherwise
avoided the injury by exercise of ordinary care. See Urena v. Biro Mfg.
Co. 114 F.3d 359, 363 (2d Cir. 1997); Voss v. Black & Decker Mfg.
Co. 450 N.E.2d 204, 206
(N.Y. 1983). A product may be defective because
the manufacturer failed to provide adequate warnings regarding dangers
associated with the product. See Fane v. Zimmer. Inc. 927 F.2d 124, 128
(2d Cir. 1991) (citing Voss, 450 N.E.2d at 206).
Dresser's motion for summary judgment is based on the theory that
plaintiffs have not carried their burden in establishing that a failure to
warn was a substantial factor in causing Hutton's injury. First, Dresser
argues that the testimony of plaintiffs' expert, William Brogan, should
be excluded because Brogan is not qualified and does not have an adequate
basis for his opinions. Second, Dresser claims that, because the dangers
resulting from a car falling off ...