The opinion of the court was delivered by: Townes, United States District Judge
Plaintiff, Frank Ferracane, brings this diversity action to recover for injuries he allegedly sustained on April 27, 2001, when the handle of a crank he was using to lower the landing gear of a semitrailer "snapped back" and struck him in the head. Defendant Jost International Corp. ("Jost"), which manufactured the landing gear assembly at issue, now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, defendant Jost's motion is granted in part and denied in part.
Plaintiff has been a truck driver since 1988 or 1989, when he graduated from MTA Truck Driving School ("MTA") in Corona, California. Defendant Jost's Rule 56.1 Statement at ¶ 12.
At the time of the accident alleged in the instant complaint, plaintiff had been working for FSR Trucking for about four months as a "switcher" in the truck yard at the Priority Mail Postage Center in Bethpage, New York. Id. at ¶ 9. In that capacity, he used a "tractor" to move semitrailers around the yard, positioning them at loading docks so that they could be loaded or unloaded. Id. at ¶¶ 11, 16.
Plaintiff's duties required him to operate semitrailers' "landing gear" -- the retractable legs which support the front part of the trailer when the tractor is detached. Id. at ¶ 6. This landing gear is operated through the use of a manual crank which raises and lowers the legs. Id. at ¶ 8. By his own admission, plaintiff was "very experienced" in operating landing gear, having done so at least 500 times over the course of his career. Id. at ¶¶ 18-19. Plaintiff had also received some instruction on the operation of landing gear while attending MTA. Id. at ¶ 14.
On April 27, 2001, plaintiff was allegedly operating the landing gear on a trailer owned by defendant Hale Trailer Brake & Wheel, Inc. ("Hale") and manufactured by defendants Hyundai Precision America and Hyundai de Mexico (collectively, "Hyundai") using a landing gear assembly manufactured by Jost. According to plaintiff, he inadvertently continued to turn the crank after the landing gear was fully extended, causing torque to build up. Id. at ¶¶ 21, 23. Although the first page of the Jost Operating Instructions manual prominently advises users to "grip the crank handle with both hands," plaintiff was using only one hand at the time. Id. at ¶¶ 20, 24-25. The handle slipped from plaintiff's hand and spun backward, striking plaintiff in the head. Id. at ¶ 21.
In February 2002, plaintiff commenced this action pursuant to the Federal Tort Claims Act against the United States of America, which allegedly owned or leased the Priority Mail Postage Center and, through the United States Postal Service, contracted with FSR Trucking to provide services at the Center. Plaintiff also named Hale and Hyundai Precision America as defendants, alleging that both were incorporated in states other than New York and that the amount in controversy was in excess of $75,000, exclusive of interest and costs. Verified Complaint at ¶¶ 7, 14, 25.
This complaint was amended in September 2003 to name Jost and Hyundai de Mexico as additional defendants. As amended, the complaint raises nine causes of action. However, because the fourth, fifth and sixth causes action raise claims solely against the United States and/or Hale, both of whom have been dismissed from the case, only the remaining six causes of action are at issue here.
The first cause of action alleges that defendants breached various express and implied warranties, including warranties that their products were merchantable and fit for their intended purposes. The second cause of action alleges that defendants' products were defective and that defendants are strictly liable to plaintiff. The third cause of action alleges that the defendants were negligent in the manufacture and production of their products, and were "otherwise . . . careless and negligent" in some unspecified way. Amended Verified Complaint at ¶ 134.
The seventh, eighth and ninth causes of action also allege negligence. Each of these three causes of action are identical, except that each names one of the three remaining defendants. These causes of action allege that these defendants had a duty to keep the trailer and hand crank in reasonably safe condition; allowed this equipment "to be, become and remain, in a broken, dangerous, hazardous and defective condition"; and were negligent because, among other things, they failed to prevent persons from using the equipment or to warn users of the equipments' condition. Id. at ¶¶ 161-64, 169-72, 177-80.
At a pre-motion conference on August 26, 2005, Jost and Hyundai were granted permission to move for summary judgment pursuant to Fed. R. Civ. P. 56. Although Hyundai served plaintiff with motion papers on November 14, 2005, the fully briefed motion was never filed with this Court.*fn2 Accordingly, this Memorandum and Order addresses only defendant Jost's motion for summary judgment. The issues raised in Jost's motion are set forth in detail in the discussion below.
The Summary Judgment Standard
Summary judgment is appropriate only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing that there is no genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the movant meets this burden, the non-movant "must set forth specific facts showing that there is a genuine issue for trial."Fed. R. Civ. P. 56(e); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). The non-movant cannot avoid summary judgment "through mere speculation or conjecture" or "by vaguely asserting the existence of some unspecified disputed material facts." Western World, 922 F.2d at 121 (internal quotations and citations omitted). ...