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Humphrey v. Diamant Boart

February 13, 2008

KERWIN HUMPHREY, PLAINTIFF,
v.
DIAMANT BOART, INC. AND FESTINAL CO., INC., DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

This is a products liability action in which plaintiff Kerwin Humphrey ("plaintiff" or "Humphrey") has brought suit against defendants Diamant Boart, Inc. ("Diamant Boart") and Fastenal Company, Inc. ("Fastenal")*fn1 (collectively, "defendants"), in connection with an alleged accident that occurred while Humphrey was using a Quickie Super 60 handheld saw to cut a wooden light pole on September 23, 2005, while he was employed as a Labor Supervisor for the Village of Garden City, New York. Specifically, the Complaint sets forth causes of action for (1) strict liability, alleging the design of the blade guard and the warnings and instructions for the saw's use were defective, and (2) breach of implied warranty, alleging the saw was not reasonably safe for its intended use. Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, the Court denies defendants' motion for summary judgment in its entirety.

I. BACKGROUND

A. Factual Background

The facts described below are taken from the parties' depositions, affidavits, exhibits and defendants' Local Rule 56.1 statement of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party.*fn2 See Capobianco v. City of New York, 422 F.2d 47, 50 (2d Cir. 2001).

Humphrey was employed as a Labor Supervisor by the Village of Garden City, New York. (Defs.' 56.1 ¶ 5.) He had worked for the Village of Garden City since 1984 and was originally hired as a laborer. (Id. ¶ 6.) By September 2005, Humphrey had been promoted to Labor Supervisor, which involved the supervision of a crew of one to two co-employees responsible for, among other things, the replacement and repair of street lights in the Village of Garden City. (Id.)

The saw at issue in this case is a Quickie Super 60 handheld portable saw (hereinafter, "saw," "Quickie saw," or "Quickie Super 60 saw") designed and manufactured by EMAK International ("EMAK"), an Italian corporation. (Id. ¶ 7.) In April 2001, EMAK sold the saw to Diamant Boart, for resale. (Id.) On September 21, 2001, Diamant Boart sold the saw to Fastenal, which was an independent distributor of professional contractors' construction products. (Id. ¶ 8.) In April 2002, Fastenal sold the saw to the Village of Garden City. (Id. ¶ 9.)

Humphrey began using the Quickie Super 60 saw in 2002 soon after it was purchased by the Village of Garden City. (Id. ¶ 10.) He was the sole user of the saw and stored it on his crew truck. (Id.) Humphrey was given no formal training as to the operation of the Quickie Super 60 saw or any of the other power equipment he used in his work. (Id. ¶ 11.) Moreover, he was not given any formal instruction with respect to the type of blade he should use with the saw when cutting concrete, asphalt, or wood. (Id.) Instead, Humphrey learned about the operation of the saw by personal observation of other Village of Garden City employees, starting in 1984 when he was first hired. (Id.) Humphrey used the Quickie saw to cut wooden poles two or three times per week for approximately three and one-half years prior to his accident without the saw recoiling or malfunctioning during use. (Id. ¶ 12.) According to Humphrey, beginning in 2002 and throughout the three and one-half year period that he used the Quickie saw prior to the accident, he observed that the saw's blade guard would loosen during operation, and Humphrey would stop and re-tighten the guard before continuing its use. (Id. ¶ 13.) Humphrey knew that he needed to re-tighten the blade guard because he could actually see the guard rotate back and expose more of the blade. (Id. ¶ 14.) Humphrey never advised his employer that the blade guard was loosening during operation, nor did he ever request service or maintenance on the blade guard. (Id. ¶ 15.)

At the time of the sale of the saw by defendants, the saw had several on-product warning and instruction labels. (Id. ¶ 17.) Among other warnings, the labels on the blade guard of the saw warned the user as follows:

WARNING

FAILURE TO FOLLOW ALL WARNINGS AND INSTRUCTIONS MAY RESULT IN SERIOUS INJURY OR DEATH

Read entire operator's manual before operating this machine. Understand all warnings, instructions, and contents.

Use only reinforced abrasive or high speed diamond blades having an operating speed above or equal to the maximum spindle speed and specifically designed for use with hand-held, portable, high speed cut off machines.

Do not use damaged or carbide tipped blades.

Machinery hazard - Always keep all guards in place properly adjusted and in good condition.

(Id. ¶ 17.) A warning on the top of the saw console repeated the direction to the operator to read the manual before operating the saw. (Id.) The operator's manual contained two warnings to the operator not to use carbide tipped blades on the saw. (Id. ¶ 18.)

Humphrey observed and was aware of the on-product warnings and instruction labels, but did not read them. (Id. ¶ 19.) Humphrey also was aware that the saw had an operator's instruction manual and that on-product labels instructed him to read the manual, but he did not read it. (Id. ¶ 20.)

According to the former President of Diamant, the Quickie saw (1) is used by, and marketed to, professional contractors, and (2) is intended to be used to cut hard materials, such as steel, concrete, brick, and asphalt, not to cut soft materials, like wood. (Gustafsson Aff. ¶¶ 10-11, 13.) Moreover, as stated on the label and Operating Instructions, it is intended for use only with diamond and abrasive blades, not carbide tipped blades. (Defs.' 56.1 ¶ 21.)

On September 23, 2005, which was the day of the accident at issue in this case, Humphrey and a two-person crew were removing and cutting up a 20-foot wooden light pole from a parking lot behind the Lord & Taylor building in the Village of Garden City. (Id. ¶ 23.) The crew had removed the bolts securing a metal shoe which attached the pole to its concrete base and laid the pole horizontally on the surface of the parking lot to be cut into more manageable pieces. (Id. ¶ 24.) Humphrey was using the saw for approximately 8 minutes prior to the accident, during which time he cut the top T bar on the wooden pole off and had cut two section lengths along the top of the pole. (Id. ...


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