United States District Court, S.D. New York
August 17, 2005.
LORI ANN WINSTEAD, Plaintiff,
PHILLOCRAFT INC., and "JOHN DOES, INC.," persons intended to be distributors, repairers, assemblers, installers of product involved in this action, Defendants.
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION & ORDER
Plaintiff Lori Ann Winstead brought this action against
defendant Phillocraft Inc. for injuries allegedly sustained as a
result of Winstead's use of a chair alleged to be manufactured by
defendant.*fn1 Plaintiff's complaint alleges negligence,
breach of express and implied warranties, and strict liability in
tort based on defective design.
This action was originally brought in New York State Supreme
Court, Bronx County on May 1, 2003, and removed to federal court
on the basis of diversity of citizenship jurisdiction on May 28,
2003. The case was transferred to this court from Judge Deborah
Batts on October 7, 2003. The defendant now moves pursuant to
Rule 56 of the Federal Rules of Civil Procedure for summary
judgment dismissing all claims against it on the grounds that
plaintiff is unable to establish that defendant manufactured the
chair in question. For the reasons set forth below, defendant's
motion for summary judgment is hereby GRANTED. I. BACKGROUND
The plaintiff was a token booth clerk for the New York Transit
Authority at the time of the event in question. Plaintiff claims
that she was injured while working in a token booth when the back
of her chair suddenly fell off, causing her to fall to the
ground. The New York Transit Authority, which is not a party to
this matter, disposed of the chair allegedly responsible for
plaintiff's injuries after the accident, and it was therefore
never produced for inspection by the parties. Although plaintiff
has made extensive efforts to procure an exemplar chair from the
New York Transit Authority, she has been unable to do so.
The following facts are undisputed. Plaintiff's accident
occurred on June 7, 2000 at the Hunter College subway station,
where she was working as an assistant in the token booth with
another clerk. (Deposition of Lori Ann Winstead, dated February
10, 2004 ("Winstead Dep."), at 12-13, 15-16, 18, 20.) There were
two chairs in the token booth, one for each clerk, and the chairs
were the same. (Id. at 21-22.) Plaintiff had no information as
to who purchased or manufactured the chair she was using at the
time of the accident, or when the chair was purchased. (Id. at
37). At plaintiff's deposition, plaintiff described her chair in
the following way:
Q: Can you tell me what [the chairs] looked like?
A: They were blue and there was a seat of the chair
and it [sic] was a back to the chair, no armrests.
Q: How high was the chair off the ground?
A: Maybe three feet.
Q: What material was the seat coverings made out of?
A: Imitation leather.
Q: And the rest of the chair, do you know what
material what did it look like; was the whole chair
blue or was just the seat area blue?
A: Well . . . I am not sure. It was blue though . .
Q: Which part of the chair was blue?
A: The seat of the chair.
Q: And what about the backrest, what color was that?
A: I'm not sure.
Q: You stated that the seat was made out of an
imitation leather type of material?
A: I can't recall.
Q: What about the back of the chair, what kind of
material was on the back of the chair?
A: It was the chair had the same cover on the back
of the seat, as far as I remember.
Q: Do you know if the cover was also blue?
A: I believe it was.
Q: What about the legs of the chair, what color was
A: They were made of iron, painted black.
Q: Had you ever seen this type of chair in any of the
other token booths that you worked at?
(Id. at 22-24.) Plaintiff testified that at the time of the accident she was
sitting on the chair counting money at her window. (Id. at 26.)
Prior to the accident, the plaintiff did not notice any problems
with the chair or that it was loose or wobbling. (Id. at
30-31.) While she was sitting in the chair, the backrest of the
chair fell off. (Id. at 26-27.) Although her back was not
touching the backrest at the time it fell off, when the backrest
of the chair came off, it caused her to fall off the chair.
(Id. at 27, 32-33).
David Wong, a Station Supervisor for the New York Transit
Authority, was the supervisor who responded to plaintiff's
accident and filled out the accident report. Wong testified that
the chairs in the token booth were both the same type, and were
the same as most of the chairs in other token booths. (Deposition
of David Wong, dated December 2, 2003 ("Wong Dep."), at 25.) He
testified that the chairs were made of cloth, and described the
chairs as "stationary, no arm rest. The back portion of the chair
is adjustable. . . . [T]he back portion of the chair is attached
to the bottom of the chair . . . and you can move that back
portion forward or backward and [it] also had a screw on the
bottom to holding [sic] that back portion of the chair." (Id.
at 25-26.) Wong had no information as to who manufactured the
chair or from whom it was purchased, and did not observe any
identifying features on the chair that would indicate who
manufactured the chair or what the model number was. Wong also
had no information regarding when the chair was purchased, though
he did state that the chair was "fairly new" and in "good
condition." (Id. at 26-27, 36, 71.)
According to Wong, chairs would remain in use until somebody
reported a defect, and the New York Transit Authority would
replace a chair once a complaint was filed. (Id. at 35.) If a
new chair was needed, the chair, still in the box from the
manufacturer, would be picked up from the Material Control office
at Penn Station, and a supervisor and/or a cleaner would
transport the chair using a hand truck to the appropriate token
booth. The chair would then be assembled by a transit worker.
Wong testified that he had no recollection of seeing the name
Phillocraft on any of the boxes that contained the chairs used in
token booths. (Id. at 36-41.)
Wong testified that all of the chairs came with instructions on
how to assemble the chair, and that assembly of the chair was
"very simple." (Id. at 42.) According to Wong, the chairs came
in three pieces the seat, the bottom, and the back with
written instructions and diagrams regarding assembly. (Id.) The
back portion of the chair was attached with a piece of metal that
is put into a slot on the bottom of the chair, which allows the
back of the chair to move forward or backward, and a screw on the
bottom is used "to tighten it up." (Id. at 44.) The clerks
could adjust the screws for their comfort while working. The back
portion of the chair could be unscrewed, which allowed the back
of the chair to be moved forward or backwards. (Id. at 68-69.)
Wong testified that even without the screw, the back of the chair
could remain in place "if you put the back part further in."
(Id. at 75.) The chairs also had a handle on the side to adjust
the height. (Id. at 68.)
When Wong arrived at the scene of plaintiff's accident, he saw
the back of the chair on the ground, but did not see the screw.
(Id. at 69-70.) He looked for the screw, but was unable to find
it. (Id. at 70.) Wong testified that after plaintiff's
accident, the original chair was removed from the token booth and
the Transit Authority replaced the broken chair with a new one.
Wong did not know the whereabouts of the original chair, and testified that,
as a general practice, an old chair reported to be broken or not
usable would be discarded. (Id. at 52-55.)
Peter Schoenhoff, the Director of Engineering for Falcon
Products, of which defendant Phillocraft, Inc. is a subsidiary,
testified that all chairs manufactured by defendant have a
Phillocraft label affixed to the underside of the chair's seat
that contains warrant information, a product warning, and
flammability information. (Deposition of Peter Schoenhoff, dated
January 21, 2004 ("Schoenhoff Dep."), at 51-52.)
Schoenhoff described the chair ordered from Phillocraft by the
Transit Authority as follows:
The chair is a task chair. It contains a gas cylinder
. . . that allows the seat height to be adjusted. . . .
The back of the chair is attached to the seat of
the chair through a metal J-shaped bar. The bar is
attached to the seat, and in the back there is an
oversized screw to allow easy adjustment of the back
height and seat depth. . . . The chair back itself is
made of a molded plywood part, which was purchased
from a vendor. That molded plywood part is then
drilled and hardware is installed on that for the
mounting of the adjustment knob. The receptacle for
the screw is installed by Phillocraft.
(Id. at 55.)
According to Schoenhoff, Phillocraft ships the chairs to the
customer partially assembled. (Id. at 61.) The customer has to
connect the J bar to the back of the chair with screws. (Id. at
61-62.) "There is a slot in the seat where the J bar is inserted
into the screw to secure the J bar to the seat. The back is then
attached. The J bar and the second screw is [sic] used to secure
the back to the J bar. That completes the assembly process. No
tools are required." (Id. at 62.) The two screws used to
assemble the chair are the same. (Id. at 62.)
To adjust the seat back, one would turn the screw to loosen it
and adjust the back portion of the chair, and then re-tighten the
screw. (Id. at 70.) Once someone loosens the screw to adjust
the chair, there is no mechanism to keep the screw from turning
even more until it comes off. (Id. at 71.) Schoenhoff estimated
that the screw would require four or five full revolutions to
come off completely. (Id. at 71-72.)
Schoenhoff testified that the chair is designed in such a way
that "when someone leans back in the chair, they cause a lever
effect which pinches the J hook causing it to bind and not move.
It can only be adjusted by pushing it straight in or out, not by
angling, and typically the movement of leaning back is going to
cause the binding to occur." (Id. at 69.) This would occur
regardless of whether the screw used to secure the back of the
chair to the J bar was in place. (Id.) Schoenhoff was unaware
of any prior complaints about the chair, and unaware of any
situations in which the back of the chair came off. (Id. at
66-67.) II. DISCUSSION
A. Standard for Summary Judgment
Summary judgment is proper where "[t]he 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
judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of
material fact is present if the fact "might affect the outcome of
the suit under governing law" and the supporting evidence is
"such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In evaluating a summary judgment motion, "[t]he
judge's function is not . . . to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial." Id. at 249. "In making its
determination, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party." Sorlucco
v. New York City Police Department, 888 F.2d 4, 6 (2d Cir.
1989). That is to say, the deposition testimony, affidavits, and
documentary evidence must be viewed in the light most favorable
to the nonmoving party. Roge v. NYP Holdings, Inc.,
257 F.3d 164, 165 (2d Cir. 2001).
The burden is on the movant to demonstrate that no genuine
issue exists respecting any material fact. See Gallo v.
Prudential Residential Servs., Lt'd P'ship, 22 F.3d 1219, 1223
(2d Cir. 1994). "In moving for summary judgment against a party
who will bear the ultimate burden of proof at trial, the movant's
burden will be satisfied if he can point to an absence of
evidence to support an essential element of the nonmoving party's
claim." Goenaga v. March of Dimes Birth Defects Found.,
51 F.3d 14, 18 (2d Cir. 1995). Where the initial showing by the moving
party is not made, "summary judgment will be denied, even though
the party opposing the motion has submitted no probative evidence
to support its position or to establish that there is a genuine
issue for trial." U.S. v. Pent-R-Books, Inc., 538 F.2d 519, 529
(2d Cir. 1976). Where the initial showing is made, the nonmoving
party must then produce "specific facts showing that there is a
genuine issue for trial," Fed.R.Civ.P. 56(e), by "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." Celotex, 477 U.S. at 322. Where the
nonmoving party bears the ultimate burden of proof at trial, the
motion may not be rebutted by restating allegations in the
pleadings or statements in the party's own affidavit. Id. at
324. The nonmoving party must provide "`concrete particulars'
showing that a trial is needed, and `[i]t is not sufficient
merely to assert a conclusion without supplying supporting
arguments or facts in opposition to that motion.'" R.G. Group,
Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(citing Securities and Exchange Commission v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Under New York law, a plaintiff injured by an allegedly
defective product may seek recovery against the manufacturer
under the theories of negligence, breach of express or implied warranties, or strict liability in tort.*fn2 Macaluso v.
Herman Miller, Inc., 2005 WL 563169, at *4 (S.D.N.Y. Mar. 10,
2005). See also Merced v. Auto Pak Co., 533 F.2d 71, 75 (2d
Cir. 1976); Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204,
207 (N.Y. 1983). In a products liability action, the plaintiff
bears the burden of proving that the defendant manufactured the
product at issue. Travelers Indem. Co. of Illinois v. Hunter Fan
Co., Inc., 2002 WL 109567, at *2 (S.D.N.Y. Jan. 28, 2002). See
also 210 E. 86th St. Corp. v. Combustion Eng'g, Inc., 821
F.Supp.125, 142 (S.D.N.Y. 1993); D'Amico et al. v. Mfrs. Hanover
Trust Co. et al., 173 A.D.2d 263, 265 (N.Y.App. Div. 1st
Dep't 1991). A plaintiff "must establish by competent proof . . .
that it was the defendant who manufactured and placed in the
stream of commerce the injury-causing defective product." Healey
v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601 (N.Y. 1996).
See also Travelers, 2002 WL 109567, at *2; Franklin v.
Krueger Int'l, Inc., 1997 WL 691424, at *3 (S.D.N.Y. Nov. 5,
1997). The unavailability of the injury-causing product, however,
does not by itself dictate that the suit may not proceed.
Franklin, 1997 WL 691424, at *3 (citing Healey,
87 N.Y.2d at 601). See also Lewis v. Proctor & Gamble, Inc., 1998 WL
903598, at *3 (E.D.N.Y. Dec. 11, 1998). The identity of the
manufacturer may be established by circumstantial evidence,
however such evidence must establish that it is "reasonably
probable, not merely possible or evenly balanced, that the
defendant was the source of the offending product." Healey,
87 N.Y.2d at 601-602. See also Travelers, 2002 WL 109567, at
*2; Franklin, 1997 WL 691424, at *3. Speculative or conjectural
evidence of a manufacturer's identity is not enough. Healey,
87 N.Y.2d at 602. See also Travelers, 2002 WL 109567, at *2;
Franklin, 1997 WL 691424, at *4.
In the instant case, defendant argues that summary judgment is
warranted because there is no evidence that links the defendant,
even circumstantially, to the chair involved in the alleged
accident. Defendant has met its burden by pointing to the absence
of evidence that shows that defendant was the manufacturer of the
chair in question, an essential element of plaintiff's claims.
Defendant has shown that no one observed any markings on the
chair that identified Phillocraft as the manufacturer, nor does
anyone know from whom the chair was purchased or when it was
purchased. The chair itself has never been produced, and the only
descriptions of the chair provided by people who were at the
scene of the accident the plaintiff and her station supervisor
conflict with one another regarding key descriptive details
such as what material the chair was made of. Because the
defendant has made an initial showing that the plaintiff cannot
prove that defendant manufactured the chair in which the alleged
accident occurred, the burden shifts to the plaintiff to show
that there is a genuine issue of material fact with regard to the
manufacturer of the subject chair.
In opposition to defendant's motion for summary judgment,
plaintiff argues that despite the unavailability of the actual
chair or an exemplar chair, there is sufficient circumstantial
evidence that defendant is the manufacturer of the chair in
question to raise a genuine issue of material fact and withstand
defendant's summary judgment motion.
In support of plaintiff's opposition to defendant's motion for
summary judgment, plaintiff has presented several pieces of
evidence. Plaintiff provided an affidavit from Dale Barnard, the
president of Biofit Engineering Corporation, the company against
which plaintiff initially commenced, and then later discontinued,
this action. Barnard testified that on or about March 4, 2003,
plaintiff subpoenaed the Transit Authority to secure possession
of the chair, and that on or about April 8, 2003, the Transit
Authority responded to the subpoena and indicated that the chair
was purchased from Phillocraft. (Affidavit of Dale Barnard, sworn
to May 29, 2003 ("Barnard Aff.")). The Barnard affidavit states
that the Transit Authority's response to plaintiff's subpoena
stated that "the subject chair was purchased from `Phillocraft,
81 W. Hwy, 25/70, Newport, TN., Purchase Order #00455747, part
number Phillocraft #DGMM-1.'" (Barnard Aff. at 2) (emphasis
added). Although the affidavit states that the Transit
Authority's response to this effect is attached to the affidavit,
plaintiff did not provide a copy of the Transit Authority's
response in any of its briefing papers.
Plaintiff provided as a separate exhibit a letter from the
Transit Authority dated April 3, 2003, which confirms that
between February, 1999 and September, 2001 the Transit Authority
purchased approximately 900 chairs from Phillocraft that are used
in service booths. (Pl.'s Ex. 2.) The April 3, 2003 letter goes
on to state that during that period the Material Control
department of the Division of Station Operations issued chairs to
various field locations, and that the Material Control department
does not have records indicating which chair is issued to a
particular booth, invoices on any chairs involved in an accident,
purchase order receipts for a chair involved in an accident, or
repair records of the subject chair. The April 3, 2003 letter
contains the same purchase order and part number information for
the purchased chairs said by Barnard to be provided in the
Transit Authority's April 8, 2003 response.
Additionally, plaintiff provided a copy of an invoice from
Phillocraft, dated January 10, 2001, for the sale of 30 chairs to
the New York Transit Authority.
In further support of plaintiff's opposition to defendant's
motion, plaintiff cites portions of Wong's and Schoenhoff's
deposition testimony. During Wong's deposition he was shown a
Phillocraft brochure and stated that one of the chairs in the
catalog was similar to the chair involved in plaintiff's alleged
accident. (Wong Dep. at 60-61.) During Schoenhoff's deposition,
he identified the chair in Phillocraft's catalog that
corresponded to the model number in a Phillocraft invoice to the
Transit Authority. (Schoenhoff Dep. at 30.) While it was not the
same chair that Wong identified, plaintiff argues that the chairs
identified by Wong and Schoenhoff were similar in likeness.
None of the evidence provided by plaintiff establishes that it
is reasonably probable that Phillocraft manufactured the chair in question.
The Barnard affidavit states that the Transit Authority, in a
separate document, stated that the subject chair was manufactured
by Phillocraft. That separate document was not provided, however.
Because Barnard's information is hearsay and not based on his
personal knowledge, this court rejects it. See Hollander v.
Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999) (holding that
a court may "strike portions of an affidavit that are not based
upon the affiant's personal knowledge, contain inadmissible
hearsay or make generalized and conclusory statements"); Doe v.
Nat'l Bd. of Podiatric Med. Exam'rs, 2004 WL 912599, at *4
(S.D.N.Y. Apr. 29, 2004) (holding that a court may "decline to
consider those aspects of a supporting affidavit that do not
appear to be based on personal knowledge or are otherwise
inadmissible"). Another document from the Transit Authority
provided by plaintiff, dated just five days earlier than the one
referenced in the Barnard affidavit and containing much of the
same information said to be provided in the later one, confirms
only that the Transit Authority purchased chairs from
Phillocraft. This correspondence from the Transit Authority does
not contain any information indicating that the subject chair
was manufactured by Phillocraft. The fact that Phillocraft sold
chairs at various times to the New York Transit Authority raises
the possibility that the chair in question was manufactured by
defendant. It does not, however, establish that it is reasonably
probable that the chair involved in plaintiff's accident was
manufactured by Phillocraft.
The other evidence provided by plaintiff likewise fails to shed
any light on who manufactured the chair in question. The January
10, 2001 invoice provided by plaintiff to show that the Transit
Authority purchased chairs from defendant documents a purchase
that took place seven months after the date of the accident. That
invoice cannot provide any insight into who manufactured the
chair used by plaintiff seven months earlier.
Wong's and Schoenhoff's testimony also fails to shed any light
on who manufactured the chair in question. While Wong testified
that the chairs came with assembly instructions, Schoenhoff
testified that the chairs purchased from Phillocraft by the
Transit Authority are not sent with assembly instructions. (Wong
Dep. at 42; Schoenhoff Dep. at 63.) Further, when asked to
identify a chair from the Phillocraft catalog that resembled the
chair in question, Wong identified a chair different than the one
that corresponded to the model number in the Transit Authority
invoices. This conflicting testimony only serves to confuse the
issue of who manufactured the subject chair.
Finally, plaintiff was unable to provide even basic descriptive
details about the chair. Indeed, her description of the chair
conflicted with the description of the chair provided by Wong
regarding key details such as what material the chair was made
of. Such ambiguity about the chair's basic features would make
identification of its manufacturer even more difficult.
Although plaintiff has provided evidence that the New York
Transit Authority purchased chairs from Phillocraft over a period
of time, plaintiff has provided no evidence that links
Phillocraft to the chair involved in plaintiff's accident.
Indeed, it would be mere speculation for a jury to attempt to
determine the manufacturer of the chair in question. Reading the
evidence in the light most favorable to the plaintiff, there is
not sufficient circumstantial evidence to establish that it is reasonably probable that defendant manufactured the chair
in question. Because plaintiff has failed to establish the
identity of the manufacturer an essential element of
plaintiff's claims either directly or through circumstantial
evidence, plaintiff has not shown that there is a genuine issue
for trial and therefore has not met her burden.
Defendant also argues in its motion for summary judgment that
plaintiff has failed to proffer any evidence of defective design.
Plaintiff did not address this issue in her brief in opposition
to defendant's summary judgment motion, nor did she provide any
evidence in support of this cause of action. Because this court
finds that plaintiff has not provided sufficient evidence to
establish by a reasonable probability that defendant was the
manufacturer of the chair in question, the court need not reach
the issue of whether there was a design defect in the chair.
Having concluded that plaintiff has not met her burden of
establishing that it is reasonably probable that Phillocraft
manufactured the chair in question, the court finds that summary
judgment in favor of defendant is warranted and that plaintiff's
claims against Phillocraft must be dismissed in their entirety.
For the foregoing reasons, defendant's motion for summary
judgment is granted. The clerk of the court is directed to enter
judgment for the defendant and remove this case from the court's