The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Brandon Smith commenced the instant action against Defendant Black & Decker, Inc. seeking to recover for personal injuries he claims to have sustained while using a circular saw designed and manufactured by Defendant. Plaintiff asserts claims of negligence, strict products liability, and breach of warranty. Presently before the Court is Defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the Complaint in its entirety.
According to the Complaint, Plaintiff enlisted in the United States Army. Plaintiff was deployed to Afghanistan. While in Afghanistan in February 2007, Plaintiff was making improvements to "B huts" at the Jalalabad Air Field. Plaintiff was using a saw he borrowed from the Central Intelligence Agency.*fn1 Plaintiff alleges he was using a corded, DeWalt*fn2 circular saw, or a saw identical in all respects, that had a black plate on the bottom, a yellow body, and a 7 1/4" blade to cut through boards. Pl. Aff. at ¶¶ 43, 45.*fn3 Plaintiff claims that he "made a cut into the board he was working with and then stepped around the board to cut from another angle. The DeWalt 18-volt circular saw came into contact with the Plaintiff's right leg above the knee, cutting to the bone." Sec. Am. Compl. at ¶ 13. According to Plaintiff, "the DeWalt 18-volt circular saw safety-guard had malfunctioned and remained in an 'open' position, thereby failing to cover the rotating saw blade and causing the injury and damages. . . ." Id. at ¶ ¶14, 41. Since the accident, Plaintiff has been unable to locate the particular saw that he used. Pl. Aff. at ¶ 27. Thus, the saw has not been available for inspection by Plaintiff or Defendant. Plaintiff similarly has been unable to obtain the medical note listing the exact date of his injury and the details concerning his injury. Id at ¶ 35. A military memorandum prepared one year after the accident indicates that Plaintiff was injured using a cordless saw.
Plaintiff commenced the instant action seeking to recover for the personal injuries he sustained as a result of the accident. Presently before the Court is Defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56 on the ground that Plaintiff is unable to identify the saw that is alleged to have caused his injuries.
Defendant moves for summary judgment pursuant to Rule 56. It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56( c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
With these standards in mind, the Court will address the pending motion.
Plaintiff asserts claims for strict products liability, negligence, and breach of warranty. "In New York, there are three distinct claims for strict products liability: (1) a manufacturing defect, which results when a mistake in manufacturing renders a product that is ordinarily safe dangerous so that it causes harm; (2) a warning defect, which occurs when the inadequacy or failure to warn of a reasonably foreseeable risk accompanying a product causes harm; and (3) a design defect, which results when the product as designed is unreasonably dangerous for its intended use." McCarthy v. Olin Corp., 119 F.3d 148, 155-56 (2d Cir. 1997) (internal citations omitted). Plaintiff asserts all three types of claims.
Defendant moves for summary judgment on the ground that Plaintiff is unable to establish that it manufactured the saw he was using in February 2007 or what particular saw was being used. In support of this argument, Defendant notes that: (1) Plaintiff first alleged that the saw was an 18 volt cordless saw, see Sec. Am. Compl. at ¶¶ 7, 11 - 15 (Dkt. No. 13); (2) Plaintiff now contends that the saw had a cord attached to it, see Pl. Aff. at ¶ 28; (3) Plaintiff has identified as many as seven potential models of the saw involved in the accident; (4) four saws meet the description of a "DeWalt 18 volt circular saw;" (5) there are three potentially different model DW378G saws (a pre-1998 recall model, a post-1998 recall model with the recall repairs made, and a post-2006 recall with the recall repairs made); and (6) within these models, there were numerous design changes between 1998-2007. Defendant also points to design difference between the various saws identified by Plaintiff. For example, the model DW378G has a die-cast aluminum upper and lower guard whereas three of the four 18-volt saws available between 2000 and 2007 contained a die-cast upper guard, but an injection-molded plastic lower guard. Defendant notes other differences between the various saws, including that the DW378G uses a different component torsion spring relative to the lower guard than the 18-volt circular saws. Defendant claims that the lack of identity of the saw and the inability to inspect the particular saw prejudices it from mounting a defense, including determining whether the saw was manufactured as designed (addressing the manufacturing defect claim), or inquiring about any potential misuse, alteration or poor maintenance of the saw.
Plaintiff responds that, despite his efforts to locate the saw, he has been unable to do so. Plaintiff notes that he did not own the saw and, aside from using it to cut wood, never had control over it. He further maintains that he has provided sufficient descriptive information concerning the saw to create a triable issue of fact. Upon reviewing photographs of saws on the Internet and buying a DW378G, Plaintiff "located a saw that appeared to be identical in all respects to the one that injured [him]." Pl. Aff. at ¶¶ 45, 46.
"[O]ne of the necessary elements plaintiff in a strict products liability cause of action must establish by competent proof is that it was the defendant who manufactured and placed in the stream of commerce the injury-causing defective product." Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601 (1996). As the New York Court of Appeals has explained:
The identity of the manufacturer of a defective product may be established by circumstantial evidence. . . . Moreover, circumstantial evidence may sufficiently demonstrate the maker's identity, notwithstanding the ...