The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs Maria Therese Pearce and Walter Pearce seek damages for Maria Pearce's personal injuries and Walter Pearce's loss of consortium allegedly suffered as the result of the negligence of defendants Holland Property Management, Inc. ("Holland") and Fogarty's Lake Flower Marina, LLC ("Fogarty's"). Second Am. Compl. (Docket No. 27). Defendants in turn brought a third-party action against plaintiffs' son, Kevin Pearce. Docket Nos. 20, 31, 32, 37. Presently pending are both defendants' motions for summary judgment pursuant to Fed. R. Civ. P. 56. Docket Nos. 50-52. Plaintiffs oppose the motion and request the award of costs in responding to defendants' motions. Pls. Mem. of Law (Docket No. 57-15) at 38. For the reasons which follow, Holland's motion is denied, Fogarty's motion is granted, and plaintiffs' request for the award of costs is denied.
The facts are related in the light most favorable to plaintiffs as the non-moving parties. See subsection II(A) infra.
At all times relevant, Holland operated a commercial property at Ampersand Bay on Lake Flower near the Village of Saranac Lake in Northern New York. I. Holland Dep. Tr. (Docket No. 52-14) at 9-11. Holland maintained the grounds and rented cabins and boats. Id. at 11. Among the rental boats was one owned by Ira Holland, Holland's manager, called "Four Winns." Id. at 13-16. Four Winns is an outboard motor boat approximately 16' in length with the motor and the motor's attached, submerged propeller affixed to the rear of the boat behind seats for passengers. Docket No. 50-16 at 3. Fogarty's is located in the Village of Saranac Lake and, among other things, provides repair services for boats. Fogarty Dep. Tr. (Docket No. 52-16) at 10.
Holland had purchased Four Winns in 2005 and shortly thereafter had requested Fogarty's to perform certain maintenance work on it. I. Holland Dep. Tr. at 43, 46; M. Pearce Aff. (Docket No. 57-11) at ¶ 8. Fogarty's was asked to diagnose a "no spark" problem in the motor which rendered the boat immobile. Fogarty Dep. Tr. at 24-25, 44. 45; Rooks Dep. Tr. (Docket No. 52-20) at 68, 71-72; Tylawsky Dep. Tr. (Docket No. 52-22) at 21-22; Docket No. 50-16 at 52-53; Docket No. 52-35 at 1-2. After the sparking problem was diagnosed and corrected, the Fogarty's mechanic, Mike Rooks, took the boat for a test drive to ensure that the engine was properly functioning. Fogarty Dep. Tr. at 25, 51; Rooks Dep. Tr. at 74-76, 77-79, 103-04; Tylawsky Dep. Tr. at 23. During the drive, Rooks noticed that the boat's motor was not shifting properly but was unable to determine the cause. Rooks asked Ira Holland if Holland wished Rooks to continue to work on this problem, but Holland advised that the boat had already been rented and any further work needed to be postponed. Fogarty Dep. Tr. at 25-26, 51; Rooks Dep. Tr. at 77-87, 90-92; M. Pearce Aff. at ¶¶ 9-11; Tylawsky Aff. (Docket No. 57-12) at ¶¶ 12-18, 22-23; Kueny Dep. Tr. (Docket No. 57-10) at 72, 77-78; Docket No. 50-16 at 21.*fn1
On August 11, 2005, the Pearces rented the Four Winns from Holland. M. Pearce Dep. Tr. 1 (Docket No. 57-5) at 27-28; M. Pearce Aff. (Docket No. 57-11) at ¶ 6. The Pearces had little boating experience and no one from Holland inquired about the Pearce's experience. M. Pearce Dep. Tr. 1 at 14-15, 41-43; W. Pearce Dep. Tr. 1 (Docket No. 57-4) at 6-8; M. Pearce Aff. at ¶¶ 12-15. When the Pearces arrived at the marina, they completed the boat rental agreement. Sargent Dep. Tr. at 31-32; M. Pearce Dep. Tr. 1 at 34-35; K. Holland Dep. Tr. (Docket No. 57-7) at 25. A Holland employee, Wes Sargent, then escorted the Pearces to the Four Winns at the dock and described the safety features and operation of the boat. Sargent Dep. Tr. at 36; see also K. Pearce Dep. Tr. (Docket No. 52-27) at 28; M. Pearce Dep. Tr. 1 at 42; K. Holland Dep. Tr. at 26, 28. Sargent also described the gear shifting problem, specifically stating "[t]hat you had to click the gear shifter back and forth a few times just to be sure safely that the gear was in the right gear," and demonstrated how to place the gear shift into neutral. Sargent Dep. Tr. at 40-41, 71-72; see also K. Pearce Dep. Tr. at 29, 61-62; M. Pearce Dep. Tr. 1 at 44-45; W. Pearce Dep. Tr. 1 (Docket No. 57-4) at 9-10, 15-17; Tylawsky Aff. at ¶¶ 9-11; Docket No. 50-16 at 22. Additionally, Sargent advised that "it was safe boating operation to make sure the boat was either in neutral or the boat was off when somebody was climbing on or off the back of the boat." Sargent Dep. Tr. at 75; Docket No. 50-16 at 23.
Kevin Pearce, the plaintiffs' son, operated the boat for most of the afternoon of August 11, 2005, including when Maria Pearce entered the water to go "tubing."*fn2 K. Pearce Dep. Tr. at 45; M. Pearce Dep. Tr. 1 at 59. After tubing for several minutes, Maria fell off the tube and Kevin turned the boat around to assist his mother. K. Pearce Dep. Tr. at 46; M. Pearce Dep. Tr. 1 at 60-62. Kevin placed the motor into neutral by pulling the gear shift to reverse and pushing it forward into neutral. K. Pearce Dep. Tr. at 46, 55-56. As Maria began to board the boat, the propeller began rotating, dragged Maria under the water, and severely lacerated her lower body. M. Pearce Dep. Tr. 1 at 62-63; M. Pearce Dep. Tr. 2 (Docket No. 57-9) at 11-12; W. Pearce Dep. Tr. 1 at 17-18; M. Pearce Aff. at ¶¶ 40-41, 43, 45-46; Tylawsky Aff. at ¶¶ 27-28. The gear shift remained in the neutral position the entire time. K. Pearce Dep. Tr. at 72; M. Pearce Aff. at ¶ 44; Tylawsky Aff. at ¶¶ 25-26.
After the accident, Holland contacted Fogarty's to repair the shifting problem. Rooks Dep. Tr. at 106-107; Fogarty Dep. Tr. at 30-31. In the time which had elapsed between Rooks' previous repair work on the Four Winns and the accident, Rooks had learned of the possibility of a faulty SAM causing the shifting problems. Rooks Dep. Tr. at 110-11. Rooks diagnosed the cause of the shifting problem as a broken SAM, ordered a replacement SAM, and replaced the component. Rooks Dep. Tr. at 113-19; Fogarty Dep. Tr. at 30, 54, 94-98; King Dep. Tr. at 46; Kueny Dep. Tr. at 92-94. This corrected the shifting problem. Fogarty Dep. Tr. at 89; King Dep. Tr. at 29-33, 36-37. In the weeks before and after August 11, 2005, the Four Winns was rented to other boaters seven times. K. Holland Dep. Tr. at 44-50. None of the renters made any complaints about the Four Winns. Id. at 57-59. The boat was permanently removed from the water at the end of the season. Id. at 7.
Holland moves for summary judgment on two grounds.*fn4 First, Holland argues that they received no reasonable notice of the broken SAM as would have made plaintiffs' injuries foreseeable. Second, Holland contends that plaintiffs were responsible for the events of August 11 because they used a product in violation of its stated warnings. Fogarty's moves for summary judgment on the ground that they had no duty to plaintiffs.
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).
Under New York law, negligence claims are cognizable if "a duty is owed to the plaintiff by the defendant; [defendant] breach[ed] . . . that duty; and [there was an] injury substantially caused by that breach." Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 109, 215 (2d Cir. 2002). Foreseeability pertains to multiple facets of a negligence claim including the existence and scope of a defendant's duty, whether there was a breach of that duty, and whether any breach caused the injury in question. See Stanford v. Kuwait Airways Corp., 89 F.3d 117, 125 (2d Cir. 1996) ("[T]here are two concepts of foreseeability . . . [t]he first concerns the foreseeability of the specific injury the plaintiff suffered, and focuses on whether the defendant's actions are a proximate cause of the harm. The second . . . concerns the general foreseeable risk which is crucial to determining the existence of a duty . . . ."); Martell v. St. Charles Hosp., 523 N.Y.S. 2d 342, 345 (N.Y. Sup. Ct. Suffolk County 1987) (explaining that foreseeability has applications in both "the analysis . . . of whether a defendant has actually breached a duty to a plaintiff . . . [by failing to] exercis[e] the foresight of an ordinarily prudent person in the circumstances presented by the case at hand . . . . " and determining whether "the consequences of an act . . . can be said to be so highly extraordinary, so remote or so unlikely the actor is held not to be liable . . . for the reason that the result was not a foreseeable [one] . . . . ") (citations omitted). It is also important to note that decisions as to lack of reasonable care and its nexus to a plaintiff's injury are quintessential jury questions . . . . Thus, foreseeability and causation are issues generally and more suitably entrusted to a fact finder adjudication while the definition of the existence and scope of an alleged . . . duty is usually a legal, policy laden declaration reserved for Judges.
Lombard, 280 F.3d at 215-16 (internal quotation marks and citations omitted); Derdiarian v. Felix Contracting Corp., 414 N.E.2d 666, 670 (N.Y. 1980) (holding that "[g]iven the unique nature of the inquiry in each case, it is for the finder of fact to determine [foreseeability]. . . ," especially since "what is ...