The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge
Plaintiffs Madeline ("Madeline") and Carlos Gomez (collectively, "Plaintiffs") bring this diversity action against Defendant Shoes for Crews, Inc. ("Defendant") in which they assert various state-law claims arising out of a slip-and-fall accident sustained by Madeline at a Kentucky Fried Chicken/Taco Bell restaurant in Staten Island, New York. Plaintiffs claim that the shoes worn by Madeline on that day, which were manufactured by Defendant, did not protect her from slipping on grease, as they should have. Plaintiffs wish to hold Defendant liable on theories of negligence, strict liability, and breach of warranty. Carlos Gomez brings an action for loss of consortium arising from Madeline's injuries.
Defendant now moves the court for summary judgment on all of Plaintiffs' claims. For the reasons stated below, Defendant's motion is granted in its entirety.
A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
On March 26, 2002, Madeline was working at a Kentucky Fried Chicken/Taco Bell restaurant in Staten Island, New York as an assistant supervisor, when she slipped and fell on a slippery substance on the floor of the kitchen. (Declaration of Kimberly A. Fandrey ("Fandrey Decl.") (Docket Entry # 56) Exh. J-K ("Gomez Dep.") at 4, 7, 9; Affidavit of Madeline Gomez ("Gomez Aff.") (Docket Entry # 54) ¶ 2.) That morning, Madeline had noticed a substance on the floor, which she described as a foul-smelling combination of oil and food. (Gomez Dep. at 250, 254.) The substance was between one and one-and-a-half inches thick. (Id. at 248.) Madeline complained to her manager about the substance, but nobody tried to clean it up. (Id. at 250-51.) On other days, Madeline had mopped the floor because she did not want anybody to fall on grease. (Id. at 36.)
On the day of the accident, Madeline was wearing shoes manufactured by Defendant. (Id. at 201.) Defendant's catalog, from which Madeline picked out the shoes she was wearing, stated "Stop slipping and falling and get with Shoes for Crews. Slip less." (Id. at 241.) The box in which the shoes arrived was adorned with four pictures of people slipping, with crosses through the pictures. (Attachment to Gomez Aff.) The box also bore the legend "SLIP LESS ON THE JOB[.] WALKING IN THE GREATEST SLIP-RESISTANT SHOES ON EARTH!" (Id.)
Randy Lubart, Defendant's Senior Vice President for Sales, stated at his deposition that the packaging in Defendant's shoes contains a "statement to the effect that `Please remember that no shoe is 100 percent slip-proof and it should be [used] in composition [sic] with good housekeeping practices.'" ( Fandrey Decl. Exh. L ("Lubart Dep.") at 26.) Defendant, however, has not provided the court with a copy of the actual warnings that were provided to Madeline. (See id.. at 27.)
Lubart also stated at his deposition that the catalog from which Madeline selected the shoes contained a warning inside the main cover stating "`Please remember that no shoe is 100 percent slip-proof. It should be worn in accordance with good housekeeping practices,' or a statement to that effect." (Id. at 32-33.) Defendant has not provided the court with a copy of the catalog from which Madeline picked her shoes. (See id. at 27.)
Madeline states in her affidavit that "there was no warning accompanying the shoes or in the catalogue, which warned a user not to walk in grease, oil or water." (Gomez Aff. ¶ 10.) She conceded in her deposition, however, that she did not read much of the catalog and was mostly looking at the styles of the different shoes. (Gomez Dep. at 242.)
As this is a diversity case, the New York products-liability law applies. See Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 132 (2d Cir. 1999). Plaintiffs' claims based on strict liability, breach of implied warranty of ...