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SANTORO v. DONNELLY

March 9, 2004.

COLBY RAE SANTORO, a minor by her Guardian Ad Litem, her Mother, Diana Santoro, -against- LEWIS DONNELLY, FAIRVIEW MAJESTIC FIREPLACE, CORP., and THE VERMONT CASTING MAJESTIC PRODUCTS CO., Defendants


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

Colby Rae Santoro brings this diversity action against her father Lewis Donnelly, Fairview Majestic Fireplace Corp. ("Fairview"), and The Vermont Casting Majestic Products Co. ("Vermont Casting"). She alleges causes of action for negligence and product liability arising from the December 2001 accident in which she sustained injuries resulting form touching the glass surface of a fireplace in Donnelly's home.*fn1 Donnelly now moves for summary judgment Page 2 pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, Donnelly's motion is granted in part and denied in part.

 I. BACKGROUND

  A. The Parties

  Colby Rae Santoro is a three-year-old child bringing this action by and through her natural mother and Guardian ad Litem, Diana Santoro.*fn2 Colby is a New Jersey resident.*fn3 Lewis Donnelly, a New York citizen, is Colby's natural father.*fn4 He owns a construction company called Ashmar Development, which builds single-family homes. Fairview is a corporation organized under the laws of New York, which distributes and installs gas fireplaces.*fn5 Vermont Castings is a Page 3 manufacturer of gas fireplaces conducting business in New York.*fn6

  B. Procedural History

  In her original complaint, Colby named only Donnelly as a defendant. On December 26, 2002, Donnelly filed a third-party complaint against Fairview and Vermont Castings.*fn7 Colby then amended her complaint in April 2003, naming Donnelly, Fairview, and Vermont Castings as defendants.*fn8 Following a pre-motion conference before this Court on October 14, 2003, Donnelly brought the instant motion, seeking summary judgment.

  C. Facts

  1. The Accident

  On December 22, 2001, Colby, then one year old, sustained burns on her hands, forearm, and forehead after touching the glass cover of a gas fireplace in the living room of her father's New York residence.*fn9 The incident occurred Page 4 during Colby's first visit to Donnelly's new house.*fn10 On the day of the accident, Donnelly was supervising Colby, as well as two eleven-year-old girls — his daughter Ashley Donnelly and her friend Brooke Sackaris.*fn11 As he was unpacking groceries in the kitchen, Ashley asked him for permission to turn on the gas fireplace in the living room.*fn12 Donnelly consented and told her where the switch was located (next to the fireplace) and how to light the fireplace (by flipping the switch).*fn13 Within approximately ten minutes, Donnelly, who was still in the kitchen unpacking groceries, became aware of the fact that Colby had stumbled Page 5 into the heated glass surface of the fireplace.*fn14

  2. The Fireplace

  Two Vermont Castings gas fireplaces were placed in Donnelly's home at approximately the same time — one in his living room and one in his bedroom.*fn15 Donnelly alleges that when the fireplaces were installed, Fairview, the distributor/installer, neither provided him with operating instructions nor verbally instructed him as to how the fireplaces should be operated.*fn16 Prior to the accident, Donnelly had briefly tested, but never used, the fireplaces and was unaware that the glass surface could reach temperatures of up to 435 degrees Fahrenheit.*fn17

  Although Donnelly may never have received it, Vermont Castings has a manual that contains installation and homeowner instructions directing the proper use of its fireplaces. This manual contains a warning that specifically states: "Children and adults should be alerted to the hazards of the high surface Page 6 temperatures of this fireplace and should stay away to avoid burns or ignition of clothing. Caution, due to high glass ...


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