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Cushing v. Morning Pride Manufacturing

January 30, 2008


The opinion of the court was delivered by: Hurley, Senior District Judge


Plaintiffs Thomas P. Cushing ("Cushing" or Plaintiff) and Cynthia Cushing commenced this action*fn1 seeking to recover for injuries sustained by Cushing, a volunteer firefighter for the Syosset Fire Department on October 3, 2004, while he was fighting a fully developed structural fire set by the Syosset Fire Department as part of its Fire Prevention Day demonstrations. Alleging that his gear, manufactured by Defendant Morning Pride Manufacturing, LLC ("Defendant" or "Morning Pride"), was defective, Plaintiff has asserted causes of action based on (1) New York General Municipal Law § 205-a; (2) breach of express warranty; (3) breach of implied warranty; (4) design defect; (5) manufacturing defect; and (6) negligence.*fn2 Presently before the Court is Defendant's motion for summary judgment. For the reasons set forth below, the motion is granted in part and denied in part.


The following facts are taken from the parties' submission and are uncontroverted unless otherwise indicated.

The Manufacturing Process

In 2000, a company known as "Hi-Tech Fire & Safety, Inc." ("Hi-Tech"), contacted Morning Pride about providing the Syosset Fire Department ("Syosset") with a protective coat and pants system ("bunker gear") for structural firefighting. Hi-Tech submitted specifications to Morning Pride for bunker gear which were developed by or on behalf of Syosset without any input or consultation by Morning Pride. Syosset's specifications called for the bunker gear to be manufactured with a three layer fabric composition comprised of the following: (1) a Nomex Omega outer shell - 7.5 ounce/yd2 - black aramid rip stop fabric; 92) a Nomex Omega facecloth/3 layer E-89 spun lace base; and (3) a Crosstech/Nomex facecloth moisture barrier (hereinafter the "Nomex Omega System"). In addition to providing the specifications for the material from which the gear was to be manufactured, Syosset also established additional design criteria for the gear, including: how the bunker coat and bunker pants would close, pocket placement and closure, identifying markings, suspender type, specific knee, cuff and elbow reinforcement, and the type of collar and chin strapping system. Syosset required the bunker gear to be compliant with "NFPA 1971: Standard on Protective Ensembles for Structural Fire Fighting and Proximity Fire Fighting" ("NFPA 1971"). The Nomex Omega system selected by Syosset was and still is a state-of-the-art fabric composite used in fire fighter protective gear. Morning Pride's quote to manufacture the bunker gear for Syosset was accepted and the bunker gear was manufactured, then delivered to Syosset.

Morning Pride is a registered company under section 9001 of the International Organization for Standardization ("ISO"). ISO is an independent, international quality control system which helps ensure the highest level of quality control on a consistent basis. Morning Pride is routinely audited by an ISO quality control system registrar who conducts random, unannounced reviews of Morning Pride's quality control system. Morning Pride's internal quality control procedures require that it only purchase the major components of the protective gear (such as the fabric) from other ISO 9001 registered companies.

Morning Pride did not manufacture the Nomex Omega System. It is a Dupont product and was supplied to Morning Pride by a DuPont authorized mill. Dupont manufactures the fibers involved in the outer shell fabric and the face cloth laminated to the moisture barrier, as well as the spunbonded interlining and the quilted Nomex liner fabric. The outer shell is a single layer of Nomex ripstop fabric woven at seven and a half ounces per square yard. Prior to sale, the supplier of the Nomex Omega System was required to have the product independently tested and certified by Underwriters' Laboratories ("UL") as compliant with the requirements of NFPA 1971. The Nomex Omega System supplied to Morning Pride was UL certified. When Morning Pride received the Nomex Omega System at its manufacturing facility in Ohio, it conducted statistically random sample tests of the materials it purchased (in its own certified testing labs) which duplicated the UL testing protocol of the NFPA 1971 standards for, among other things, (a) tear testing; (b) water testing; (c) flame resistence testing; (d) Thermal Protective Performance ("TPP") testing; and (e) Conductive Comprehensive Heat Resistence (CCHR") testing.

Morning Pride employs a bar coded computer automated manufacturing process which guides the items in production to individual work stations and provides the operators at each work station with the design/manufacturing specifications. At each work station, each piece of a particular garment is assembled by hand by a person trained in, among other things, quality control procedures and each individual operator inspects every garment he/she is working on. Above the actual operators, Morning Pride uses a three tiered quality control program during the manufacturing process. First, each production process is overseen by an "in-line" quality control inspector. The in-line inspector checks each item for even a single skipped stitch or a raw edge on a garment. Second, after a particular item is fully assembled, it is then inspected by the "final inspector" who is responsible for all aspects of the final product, including the quality of the materials themselves. The final inspector is to make certain that the items meet the required design specifications. Third, there is a "head inspector" who oversees the quality control department and checks the work of the final inspectors.

The items manufactured by Morning Pride are also independently tested and certified to the NFPA 1971 standards by UL. In this regard, UL tests the initial product at the time of certification and then it performs quarterly unannounced visits to Morning Pride's plant during which UL pulls products off the line for testing. UL also tests products that it purchases in the field to ensure continuing quality levels. The Syosset bunker gear was UL certified, and as such, Morning Pride was able to put the UL mark on the labels in the gear.

The Warnings Provided with the Bunker Gear

Every Morning Pride bunker coat sold has a Fire Equipment Manufacturers and Suppliers Association's ("FEMSA") Official User Information Guide for Protective Garments for Structural Firefighting ("FEMSA Guide") physically attached to it by means of a hang tab which goes through one of the cuffs of the coat so that a user can not put on the coat without first removing the FEMSA Guide. The same FEMSA Guide is also physically attached to the bunker pants through one of the pant legs so the user can not put on the pants without removing the FEMSA Guide. FEMSA Guides were attached to the gear when they were delivered to Hi-Tech with specific instructions to Hi-Tech not to remove the guides so that they reach the firefighters. The FEMSA Guide stresses the limitations of the full system and warn that even with the best protective equipment, a firefighter is always at risk for, among other things, burns and death. It further warns that "[i]f your protective ensemble is exposed to radiant, convective or conductive heat, you may be burned underneath the protective ensemble with no warning and no sign of damage to the protective ensemble!"

In addition to the warning contained in the FEMSA Guide, each piece of bunker equipment has labeling which contains warnings and describes the limitation of the equipment. Among other things the label states that the garment should not be used if it is soiled, torn, abraded, worn or altered from its original condition or if it has not been properly inspected and maintained by the fire department and that it is designed to be used as a unit and all components must be properly in place when it is used. It further provides:

This garment is NOT warranted to be fit for a particular purpose. Read carefully the "Warranty Information" in the FEMSA Official User Information Guide. If you do not have a FEMSA OFFICIAL USER INFORMATION GUIDE, contact the manufacturer. DO NOT REMOVE THIS LABEL."

These labels were visibly affixed to both the bunker pants and bunker coat issued to the Plaintiff. The labeling, instructions and warnings provided with the bunker coat and pants issued to plaintiff met all the requirements set forth in the "Labeling and Information" section of NFPA 1971 - 2000 edition and were consistent with American National Standards Institute (ANSI) Z535.4 - American National Standards for Product Safety Signs and Labels - 2002.

Plaintiff's Bunker Gear

Plaintiff was issued his bunker gear in 2001 when it was placed in his locker at Syosset. No representations were made and no written warranty was provided to Plaintiff by Morning Pride. Prior to October 3, 2004 Plaintiff read and understood the FEMSA Guide provided with the bunker gear, including the following warning against radiant burn injury and the effect of compression when kneeling:

Radiant Heat Burns

Your protective ensemble does not have to be in direct contact with a hot surface or hot object in order for you to be burned. Heat can build up in your protective ensemble and pass through your protective ensemble as the result of exposure to radiant heat. For example, while fighting a fire you may be exposed to radiant heat for a period of time during which your protective ensemble absorbs the heat. Even if you did not compress the system or if you were to kneel or lean against a non-heated surface, the heat absorbed by the protective ensemble may still be great enough so you are burned. Even if you were to merely position your body so that the protective ensemble was pulled tight against your body (as in squatting so that the knee area is pulled tight across the knees, raising your arm so that the shoulder is tight across your upper body, bending your elbow, etc.), you can be burned because of compression.

You do not have to be kneeling or leaning against a surface to be burned. You do not have to compress the layers of your protective ensemble to be burned. You may be exposed to a high enough level of radiant heat for a short period of time that you may be burned with no compression of the protective ensemble. Depending on conditions, you may not feel the heat build-up in and/or pass through, your protective ensemble, before you are burned.

Although he knew the bunker gear had warning labels and could see them each time he put on his bunker coat and pants, Plaintiff did not read the warning labels. He was provided training on how to properly wear the ...

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