The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiffs commenced this diversity action asserting claims of negligence and strict products liability after a fire erupted at the Quiles residence injuring members of their family. See Compl. dkt. # 1. Presently before the Court is Defendant Bradford-White Corporation's motion for summary judgment. Dkt. # 73. Plaintiffs have opposed the motion and Bradford-White Corporation has filed reply papers. The Court will decide the motion based upon the parties' submissions, all of which have been considered.
On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct. 1769, 1776 (2007), and may grant summary judgment only where "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). That is, "[s]ummary judgment is appropriate only if, after drawing all permissible factual inferences in favor of the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." O'Hara v. National Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011)(citing Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011)).
Plaintiffs John and Jeanette Quiles are husband and wife who reside in Apalachin, New York with their two minor sons, J.L.Q. and J.A.Q.. Compl. ¶ 1. Plaintiffs contend that in the evening of June 28, 2007, Jeanette Quiles and her 14 year old son J.L. went to the basement of their home to investigate the smell of gasoline vapors which seemed to be coming from the attached garage adjacent to the basement area. Id. ¶ 30. When Jeanette Quiles opened the basement door leading to garage, a sudden violent explosion, flash over and fire occurred. Id. Jeanette Quiles, J.L., and John Quiles, who was also in the basement, sustained serious burns. Id. ¶ 36. J.A. was injured to a lesser degree. Id. ¶ 37.
Plaintiffs theorize that combustible vapors emanating from gasoline that leaked from a lawn tractor in the garage traveled along the floor to a water heater located in a utility room behind the doorway to the garage where it was ignited by the water heater's pilot light. Plaintiffs assert that "the subject water heater was defectively designed and manufactured and unreasonably dangerous and failed to warn of said dangers associated with the location of the gas fired pilot light in its proximity close to the ground without a flame arrestor, where volatile flammable fuel vapors often congregate." Compl. ¶ 32. Plaintiffs further assert that "[a]lternative safer designs with flame arrestors, elevated pilot lights, sealed combustion areas that draw air from a location outside the room isolating the pilot light flame from expected external combustible vapors have been available since the early 1970s, long before the subject water heater was sold to the Quiles." Id. ¶ 34.
41. Defendant had a duty of care to provide a safe and working hot water heater to the Quiles and other consumers who purchased its product.
42. The risk of an explosion, flash over and fire was well known by defendant and others in the industry and was a foreseeable and unreasonable risk to home owners. The failure to have a flame arrestor and/or a flame elevated at least 18 inches off the ground and/or a sealed combustion area to draw air from a safe location was careless, negligent and reckless and displayed wanton disregard for consumers and homeowners, including plaintiffs.
43. As a direct and proximate cause of defendant's negligence, defective design, manufacture, instructions and warnings, the subject water heater ignited the basement of the Quiles' home in a ball of fire seriously injuring all four Quiles plaintiffs.
Except where indicated otherwise, the following facts are admitted by Plaintiffs in response to Defendant Bradford-White Corporation (BWC)'s Statement of Material Facts. The subject water heater is a gas-fired water heater with model number MI403S6CX12 and serial number TF5994210. It is designed for residential use, is atmospherically vented, and has a 40-gallon capacity. The water heater was manufactured in June 1999 by BWC and was design certified by the American Gas Association Laboratories. The water heater was built in compliance with ANSI Z21.10.1c-1996, which was the governing American National Standards Institute ("ANSI") standard at the time of the manufacturing of the subject water heater and at the time the water heater left BWC's control. Plaintiff contends, however, that BWC was advised by the Consumer Products Safety Commission that the ANSI standard was going to be changed in order to prevent pilot light ignition of external flammable vapors prior to 1999, and was in fact changed in 2003.
The water heater contained graphic and textual warnings as depicted in the photographs contained in Attached 1 to this Decision and Order. The text and graphic markings on the rating plate of the subject water heater are generally consistent with the design drawings concerning the model of the subject water heater, as represented by the excerpt contained in Attachment 2 to this Decision and Order.
Warnings in the instructions for the subject water heater model commence with:
The maintenance portion of the instructions for the subject water heater states:
A safety warning in the instructions for the subject water heater states:
Plaintiffs assert that the warnings in the printed instructions are "vague as to 'vicinity' and do not warn about storing liquids in the garage that is two rooms away." Pl. Resp. to Def's Stat. Mat. Facts.
The parties correctly agree that New York substantive law applies to all claims in this case. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 135 L. Ed.2d 659 (1996); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Dalton v. Stedman Machine Co., 2008 WL 351676, at * 1 (N.D.N.Y. Feb. 7, 2008).Under any theory of New York product liability law - strict products liability or negligence - a "plaintiff must ...