The opinion of the court was delivered by: Gold, S., U.S.M.J.
Plaintiff Joan Prendergast ("Prendergast" or "plaintiff") alleges that she was injured on May 18, 2004, when she tripped and fell on a puddle of water in the kitchen area of the Delta Crown Room at LaGuardia Airport. At the time of her accident, plaintiff was working for Delta in the Crown Room as a customer service agent. Plaintiff brings this diversity action against defendant Hobart Corporation*fn1 ("Hobart" or "defendant") claiming that its negligent repair of the dishwasher in the Crown Room caused a flood that led to her injury.*fn2 Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that plaintiff cannot establish a prima facie case of negligence. More specifically, defendant contends that the undisputed evidence demonstrates that Hobart owed no duty of care to plaintiff and therefore may not be held liable to her. For the reasons that follow, defendant's motion for summary judgment is granted.
The facts are construed in the light most favorable to Prendergast, the non-moving party, and they are derived from the parties' Local Rule 56.1 statements, and the exhibits, depositions and expert reports submitted by the parties in connection with the pending motion.
On May 17, 2004, Hobart service technician Melvin Baez ("Baez") was dispatched to the Delta Crown Room at LaGuardia Airport in response to a complaint that a Hobert model dishwasher was not working properly. Def. 56.1 ¶ 1, Docket Entry 101; Baez Dep. 77, 87, 172.*fn3
During his repair of the dishwasher, Baez replaced several worn parts. Def. 56.1 ¶ 2; Baez Dep. 87. In addition, he noticed that the "long hose" "was all bubbled up" and looked like it was "about to erupt." Baez Dep. 153-55. Baez did not have a replacement long hose with him. Id. at162. Baez determined, however, that even though the long hose was worn and needed eventual replacement, it was not in a failed condition, it was not causing any problems, and it was not leaking water. Id. at153-55, 162-64, 173, 180. After his repair was complete, Baez ran several test cycles and found that the dishwasher was not leaking. Id. at101, 173-74; Vogel Dep. 60, 82, Docket Entry 99-3. Baez informed Randy Vogel ("Vogel"), acting manager of the Crown Room, that the dishwasher was functioning properly. Vogel Dep. 82.
Between 10 and 30 minutes after Baez left, the dishwasher began to leak. Ortega Dep. 36-38, Docket Entry 103-4; Vogel Dep. 60. Vogel called Baez, and Baez told him to take the washer out of service and that he would return either that night or the next day to repair it. Vogel Dep. 60-62. Vogel shut off the machine, instructed the staff on duty that the machine was not to be used, and directed one of his employees, Don Stevenson, to alert the morning crew that the dishwasher was broken and that a repairman would be in to fix it. Id. at62-63.
Plaintiff alleges that she arrived at work at around 4:00 a.m. on May 18, 2004, and turned on the dishwasher. Shortly thereafter she slipped on water that allegedly leaked from the dishwasher. Prendergast Dep. 88-90, Docket Entry 99-1. There was no sign or other indication that the dishwasher was out of order or should not be used at the time Prendergast turned it on. Docket Entry 78 at 2.
Baez returned to the Crown Room on May 18 to repair the dishwasher. He testified that the long hose had not failed and that it was still not leaking water. Baez Dep. 181. At some point that day, he left the Crown Room to obtain a new long hose and then returned a few hours later to replace the old one. Baez Dep. 160, 181; Hobart Service Report dated 5/18/04, Docket Entry 103-6 at 32. Vogel did not call Hobart again for service that week. Vogel Dep. 90. The Hobart service reports indicate that the next date of service was June 1, 2004. Hobart Service Report dated 6/1/04, Docket Entry 103-6 at 33.
The dishwasher repair was undertaken pursuant to a service contract between Hobart and Delta that provided for repair "upon request." The contract specifically excluded inspection and preventative maintenance services. Def. 56.1 ¶ 8; Service Contract, Docket Entry 99-4 at 3. A section of the contract headed "Service Contract Terms and Conditions" states that "Inspections and Preventative Maintenance services are not part of this Service Contract but may be provided as an option at additional cost." Service Contract, Docket Entry 99-4 at 3. There is no evidence indicating that Delta purchased the optional inspection and preventative maintenance services. According to Delta Crown Room employees Mary Michniewicz and Cheryl Binz, an in-house maintenance crew at LaGuardia Airport would occasionally inspect the dishwasher. Def. 56.1 ¶ 9; Binz Dep. 124, Docket Entry 99-6; Michniewicz Dep. 107-09, Docket Entry 105-7.
Plaintiff has submitted a report of a retained expert, Ali Sadegh, Ph.D., a mechanical engineer and professor of mechanical engineering, biomechanics and automotive safety design at The City University of New York. Sadegh Report 8, Docket Entry 105-1. Sadegh based his findings in this case on his review of, inter alia, Hobart service tickets, the Hobart/Delta service contract, Hobart repair and service manuals, and the deposition transcripts of plaintiff, Baez and other witnesses. Id. at 2.In pertinent part, Sadegh states in his expert report that the "repairs done by Mr. Baez on May 17, 2004, were done in [a] negligent and careless manner [because Baez] admits that he observed the bubbled up long hose about to erupt and left the area." Id. at 7. Sadegh also states that Baez should have disconnected the dishwasher's main power source and tagged the machine "out of service" after he observed that the long hose was "bubbled" and "about to erupt." Id. at 5-6. Sadegh concludes that "[i]t is highly likely that the flooding of the kitchen floor was due to the leaking of the long hose. This is due to the fact that Mr. Baez changed the long hose after the accident and it stopped the leakage. The long hose was the conduit for hot and soapy water." Id. at 6-7.
During his deposition, Sadegh conceded that he did not have any specific education in commercial kitchen appliances, that he has never worked in the appliance repair industry, and that he was not holding himself out as an expert in the field of appliance repair. Sadegh Dep. 8-10, 19, 119, Docket Entry 105-1. When asked whether there was "any written code or standard that was important to [his] analysis in this case," Sadegh responded that he "does not believe so" and that his opinions were based on "common sense." Id. at 23. He further stated that Baez "violated the standard care of maintenance," although he could "not recall any specific standard to be violated." Id. at 147. In response to the question: "Is it ...