The opinion of the court was delivered by: Matsumoto, District Judge
Plaintiffs Anthony Aponte and Adeline Aponte ("plaintiffs") bring this action against defendants Illinois Tool Works, Inc. and ITW Ramset ("defendants") to recover for personal injuries resulting from injuries suffered by Mr. Aponte when defendants' product detonated and struck him in the eye. Pending before the court is defendants' motion for summary judgment seeking dismissal plaintiffs' claims. For the following reasons, defendants' motion is denied.
Plaintiffs filed the pending products liability action in the Supreme Court of New York on November 15, 2006 alleging failure to warn. Thereafter, defendants removed this case to the Eastern District of New York on December 4, 2006. (Doc. No. 1.) Defendants filed an Answer to plaintiffs' complaint on December 11, 2006. (Doc. No. 5.) Magistrate Judge Go ordered discovery closed by January 29, 2008. (11/30/07 Order.) The undersigned set a briefing schedule for the defendants' motion for summary judgment on November 3, 2008. Defendants' motion was fully briefed on January 15, 2009.
The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1, are undisputed unless otherwise indicated.
On November 22, 2003, a powder load, a cartridge used to fire a gun-like fastening tool, manufactured by defendants, detonated and a piece of the cartridge of the powder load struck plaintiff Anthony Aponte ("Aponte") in the eye, injuring him (the "accident"). At the time, Aponte was cleaning out his truck at his home. (Aponte Dep. at 41.) He placed a duffel bag containing powder loads, a powder-actuated fastening tool and other items on the roof of the vehicle. (Id. at 41-46.) The duffel bag fell from the roof of the vehicle and some of the powder loads spilled out. (R. 56.1 Stmt. ¶ 20.) A few moments later, a wrench fell from the roof of Aponte's vehicle and landed on some of the powder loads, causing them to detonate. (Id.)
At the time of the accident, Aponte, a union carpenter, was employed by a construction company, Commodore Construction. (Aponte Dep. at 27.) In the course of his employment, Aponte occasionally used powder-actuated fastening tools. (Id. at 15-20.) Defendants' products were owned and provided to Aponte by the Commodore Construction. (Id. at 44-45.) They were stored in and retrieved by workers from a common location, the "gang box." (Id. at 34-35.)
At the time of sale of the powder loads by the defendants, warnings were located on the powder load box. (Jablonski Dep. at 44.) An insert containing further warnings and instructions was not provided. (Id.) The English language warning on the package was as follows:
WARNING: Keep out of reach of children. To avoid serious injury/death to user and bystanders: USE only in powder actuated tools designed for this specific load (See front of package). DO NOT use in standard (high) velocity tools, dog training devices or firearms. USE safety goggles and hearing protection. Make sure load is properly inserted in the chamber and tool fully depressed while firing. DO NOT crush, strike, pry, or expose to flame or heat. Always keep dry. Handling powder loads may result in exposure to lead and other substances known to cause cancer, birth defects, reproductive harm, and other serious physical injury. Have adequate ventilation at all times. Wash hands thoroughly after exposure.
Aponte admits that, prior to the accident, he never read any of the warnings that were on the power load cartridges or powder actuated tools. (R. 56.1 Stmt. ¶¶ 8, 11.) Aponte said he did not read the powder load cartridge warnings because he "[d]idn't need to read the box." (Id. ¶ 10.) He also stated that the language in which the warnings were written was irrelevant because he did not read the warnings on the box. (Id. ¶ 15.) Aponte was aware of two ...