The opinion of the court was delivered by: William M. Skretny United States District Judge
1. In this action, Plaintiff Robert H. Pierce alleges that Defendant LaFarge North America, Inc. ("LaFarge") failed to adequately warn him about the dangers associated with concrete use upon delivering a large order of the material to his home, and as a result, he sustained severe burns to his legs. Plaintiffs assert claims for negligence based on failure to warn and, on behalf of Lorraine Pierce,*fn1 for loss of consortium.*fn2
2. Plaintiffs commenced this action on March 19, 2004, by filing a Summons and Complaint in New York State Supreme Court, Niagara County. Defendant removed the case to the United States District Court for the Western District of New York on June 23, 2004.*fn3 On August 30, 2006, Defendant filed the instant Motion for Summary Judgment.*fn4 After full briefing, this Court heard oral argument on October 30, 2006, and reserved decision at that time. For the reasons stated below, Defendant's Motion for Summary Judgment is denied.
3. The following facts are undisputed for purposes of the instant motion, except where indicated. At approximately 9:30 a.m. on June 26, 2002, Mr. Ross Beecher, a LaFarge employee, delivered seven and 1/2 yards of fresh concrete to Plaintiffs' residence. (Def.'s State., p. 1; Pl.'s State., p. 1). Plaintiff intended to replace the 22 X 24 foot concrete garage floor with some assistance from his grandson. (Def.'s State., p. 1; Briandi Aff., ¶ 11; Pl.'s State., p. 1). Prior to the delivery of the concrete, Plaintiff had broken up and removed the existing concrete floor, and placed stone, 2 X 4 foot boards, and reinforced rods down to frame the new floor. (Def.'s State., p. 1; Briandi Aff., Ex. G, p. 1). That morning, Mr. Beecher poured the fresh cement onto the floor over the reinforced rods and stones, which were already in place. (Def.'s State., p. 2).
According to Defendants, Mr. Beecher observed that Plaintiff was wearing sneakers and no gloves and so he warned him, "Make sure you wash that stuff off[; i]t'll burn you," to which Plaintiff replied, "I've been doing [this] for 50 years," and "I know what the hell I'm doing." (Def.'s State., p. 2; Briandi Aff., Exh. I, p. 28). Defendant contends that thereafter, Mr. Beecher saw Plaintiff walking around in the concrete, and warned him, "You really shouldn't do that," "Get that stuff off as fast as you can," and "It will burn you." (Def.'s State., p. 2; Briandi Aff., Exh. I, p. 53). Again, according to Defendant, Plaintiff told Mr. Beecher, "I've been doing this all my life," and "I know what I am doing." (Def.'s State., p. 2; Briandi Aff., Exh. I, p. 53).
After pouring the concrete, Mr. Beecher washed out the truck, and presented Mrs. Pierce with the delivery ticket, which she signed and retained. (Def.'s State., p. 2; Briandi Aff., ¶¶ 12 -13, Exh. D). The following warning appears on the upper left corner of the delivery ticket:
WET CONCRETE CAN CAUSE INJURY TO THE EYES AND SKIN IRRITATION WITH POSSIBLE BURNS. TAKE THESE PRECAUTIONS:
1. Avoid all contact with eyes.
2. In case of eye contact FLUSH thoroughly with water.
3. Avoid skin contact whenever possible and wash exposed skin promptly with water.
4. Wear rubber boots, gloves and appropriate eye protection.
5. If irritation persists, get medical ...