The opinion of the court was delivered by: Townes, United States District Judge
Plaintiffs, Vito Saladino and AnnMarie Saladino (collectively, "Plaintiffs"),*fn1 bring this diversity action to recover for injuries Saladino sustained on January 17, 1999, when the unsecured hood of the baggage tractor in which he was riding as a passenger sprung up and struck him in the head, rendering him a quadriplegic. Defendants, Stewart & Stevenson Services, Inc., Stewart & Stevenson Technical Services, Inc., and Stewart & Stevenson Tug, LLC (collectively, "S&S" or "Defendants"), which manufactured the baggage tractor at issue, now move for summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants' motion is granted in part and denied in part.
On or about January 17, 1990, S&S agreed to manufacture and provide baggage tractors to American Airlines ("AA"), and in May 1990, S&S shipped to AA the baggage tractor that has become the subject of this lawsuit. At the time the baggage tractor was delivered to AA, the hood on this model of baggage tractors, known as BT-345, was designed to be secured only by two rubber side latches. However, the subject vehicle was also equipped with a steel cab that covered the driver/passenger area that was an optional piece of equipment for which AA paid extra to be fastened to the baggage tractor.
Due to the design of the hinges on the baggage tractor's hood, the hood could be opened 180 degrees once the two side latches were unlatched. Unlike the baggage tractor here, if a baggage tractor was not equipped with a steel cab, the hood could rotate to the point of entering the driver/passenger area of the vehicle, and possibly strike an individual seated in that area in the head. The BT-345 model of baggage tractors are the only ones manufactured by S&S that, when only standard equipment is installed, permit the hood to enter the driver/passenger area when opened.
Sometime during the summer of 1990, AA requested that an additional device be installed to secure the hood of the baggage tractor, and S&S installed a center hood latch.*fn3 The center hood latch was another piece of optional equipment for which AA paid extra to have installed on its baggage tractor. Although there is some confusion as to who designed the center hood latches at S&S, it appears that these devices were installed in a manner contrary to the original plan. As designed, the center hood latches were to be affixed to the underside of the hoods; but when the latches were installed, they were instead attached to the grills of baggage tractors. By installing the center hood latches to the grills, the devices damaged the baggage tractors' radiators. Neither party could locate a baggage tractor with a center hood latch still in use, including the baggage tractor at issue.
From May 1990 onward, the baggage tractor at issue was in the possession of, maintained by, and used by AA. On October 14, 1998, approximately eight years after S&S delivered the baggage tractor to AA, the vehicle was involved in an accident that prompted AA to take it out of service. Because the repairs were expected to take a lengthy amount of time, AA placed a red "out of service" tag on the vehicle's steering wheel. Repairs occurred periodically on the baggage tractor from November 1 to December 17, 1998, during which time AA removed the steel cab, side panels, fenders, and pieces of the side latches to the extent that they were inoperable. Subsequently, AA's repair personnel were unable to locate the baggage tractor, and AA eventually determined that the vehicle had been taken from the repair facility without permission by unknown persons sometime between December 21 - 31, 1998. The baggage tractor remained missing until January 17, 1999, the date of Saladino's incident.
On January 17, 1999, Saladino was working as a Fleet Service Clerk for AA at John F. Kennedy Int'l Airport ("JFK Airport"), and had been so employed since May 1990. On the date of his incident, Saladino and a fellow AA employee, Daniel Snow, were assigned to unload luggage from a flight arriving at Gate 31. Snow went in search of a baggage tractor to use during his shift, as was the customary practice of AA's Fleet Service Clerks, and he located the vehicle at issue near Gate 13. At this time, the baggage tractor no longer had a red "out of service" tag on its steering wheel, but several components remained missing or non-functional:
(1) the steel cab was still missing; (2) one or both of the front side panels of the engine compartment were still missing; (3) the center hood latch was missing; and (4) the two side latches were still inoperable. In addition, a baggage strap was used to secure the hood of the vehicle. With the baggage tractor in this condition, Snow drove to Gate 31, with Saladino riding in the passenger seat, to unload luggage for the inbound flight. Upon completing their task at Gate 31, Snow, with Saladino still riding in the passenger seat, drove across the tarmac and toward an aircraft parked near Gate 10. Unknown to either Snow or Saladino, the aircraft they were approaching was conducting an engine test, and when Snow drove the baggage tractor behind the aircraft, jet wash from the engine caused the vehicle's hood to lift up and strike Saladino's head. As a result of the injuries Saladino suffered, he is now a quadriplegic.
In December 2001, Saladino and his wife commenced this action against S&S, alleging five causes of action. The first cause of action alleges that S&S was negligent in a variety of ways, including "in the design, [and] manufacturing" of the baggage tractor. Verified Compl. ¶ 38. The second cause of action alleges that the baggage tractor was defective and that S&S is strictly liable. The third cause of action alleges that S&S breached various express and implied warranties, including warranties that the baggage tractor was merchantable and not defective. The fourth cause of action alleges that S&S failed to warn AA and Saladino that the baggage tractor was dangerous. Lastly, the fifth cause of action is Mrs. Saladino's derivative claim for deprivation "of the services, companionship, consortium and society" of her husband as a result of his injuries. Verified Compl. ¶ 59. After being sued by the Saladinos, S&S filed a third party complaint against AA for indemnity and/or contribution, and now S&S moves for summary judgment dismissing the complaint in its entirety.
A. 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 quotation marks and citations omitted). Moreover, the non-movant cannot rely on hearsay testimony which would not be admissible if testified to at trial. See, e.g., Sarno v. Douglas Elliman- Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999); FED. R. CIV. P. 56(e). When evaluating a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
B. Jurisdiction and Choice of Laws
Before addressing the substantive claims on this motion for summary judgment, this Court must determine the basis for its jurisdiction and decide which law to apply in this case. Without specifically addressing the issue, the parties assume that New York law governs this diversity action. This Court, however, is not bound by the parties' assumptions, see, e.g., Kass v. West Bend Co., No. 02-CV-3719, 2004 WL 2475606, at *11 (E.D.N.Y. Nov. 4, 2004) (applying New Jersey law despite the parties' assumption that New York law applied), and must, therefore, independently assess which law to apply to this case.
"Federal courts exercising diversity jurisdiction apply the choice-of-law rules of the forum state . . . to decide which state's substantive law governs." Celle v. Filipino Reporter Enterprises, Inc., 209 F.3d 163, 175 (2d Cir. 2000). "New York Courts seek to apply the law of the jurisdiction with the most significant interest in, or relationship to, the dispute." White v. ABCO Engineering Corp., 221 F.3d 293, 301 (2d Cir. 2000). Courts "look only to those facts or contacts that relate to the purpose of the particular laws in conflict," which are, "'almost exclusively, the parties' domiciles and the locus of the tort.'" AroChem Int'l, Inc. v. Buirkle, 968 F.2d 266, 270 (2d Cir. 1992) (quoting Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 197, 480 N.E.2d 679, 684, 491 N.Y.S.2d 90, 95 (1985)).
Here, New York is both Plaintiffs' domicile and the situs of the accident at issue. Defendants are incorporated in states other than New York, but are alleged to have conducted business within this state and to have received substantial revenue from that business. Accordingly, this Court agrees with the parties that it is appropriate to apply New York law in this case. See, e.g., Kass, 2004 WL 2475606, at *11 (applying the law of the state in which the accident occurred and in which the plaintiffs' resided, even though the defendant was incorporated and had its main office in other states).
"In New York, a plaintiff injured by an allegedly defective product may seek recovery against the manufacturer on the basis of any one or more of four theories of liability": express or implied breach of contract, negligence, or strict products liability. Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 106, 450 N.E.2d 204, 207, 463 N.Y.S.2d 398, 401 (1983). Here, Plaintiffs advance all four theories, and Defendants now move for summary judgment as to each theory.*fn4
C. Strict Products Liability and Negligence
"As the law of strict products liability has developed in New York, a plaintiff may assert that the product is defective because of a mistake in the manufacturing process . . .[,] because of an improper design . . .[,] or because the manufacturer failed to provide adequate warnings regarding the use of the product." Voss, 59 N.Y.2d at 106-07, 450 N.E.2d at 207, 463 N.Y.S.2d at 401; see also Fane v. Zimmer, Inc., 927 F.2d 124, 128 (2d. Cir. 1991). Defendants, believing that ...