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Jesse Kaplan v. Home Depot Usa

August 13, 2012

JESSE KAPLAN, PLAINTIFF,
v.
HOME DEPOT USA, INC., DEFENDANT.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION & ORDER

In February 2009, plaintiff Jesse Kaplan ("Kaplan") allegedly purchased a water pump from a store operated by defendant Home Depot, USA Inc. ("Home Depot"). Kaplan claims that, at the store, he asked a Home Depot employee to direct him to a pump which could pump gasoline, whereupon Kaplan purchased a pump (the "Pump") and brought it home. On or about April 17, 2009, Kaplan used the Pump to remove gasoline from a jet ski, at which time the Pump ignited, severely burning him. Kaplan then filed this lawsuit. Discovery has now concluded, and Home Depot moves for summary judgment. For the following reasons, Home Depot's motion is granted in part and denied in part.

I.Background and Undisputed Facts*fn1

A.Kaplan's Alleged Purchase of the Pump

As noted, Kaplan alleges that he purchased the Pump at a Home Depot store located in Brewster, New York. Def.'s 56.1 ¶ 6; Pl.'s 56.1 ¶ 6. Although Kaplan is not certain of the exact date he purchased the Pump, he attests that the purchase was made sometime in February 2009. Def.'s 56.1 ¶ 7; Pl.'s 56.1 ¶ 7. Kaplan does not have a receipt for the purchase of the Pump, and paid for the pump in cash. Def.'s 56.1 ¶¶ 8--9; Pl.'s 56.1 ¶¶ 8--9.*fn2 Kaplan claims that a Home Depot employee assisted him with the purchase of the Pump, but he does not know the employee's name. Def.'s 56.1 ¶¶ 11--12; Pl.'s 56.1 ¶¶ 11--12.

B.The Pump and its Warnings

As noted, Kaplan alleges that he purchased the Pump at a Home Depot store on or about February 17, 2009, and that, on or about April 17, 2009, the Pump ignited and injured him. The Pump at issue is a Flotec Utility Pump FP0F360AC. Def.'s 56.1 ¶ 1; Pl.'s 56.1 ¶ 1. The Pump was designed for the emergency dewatering of waterbeds, clogged sinks, aquariums, and boat bottoms. Def.'s 56.1 ¶ 2; Pl.'s 56.1 ¶ 2. The user manual that came with the Pump provides safety information and warnings. It states:

SAFETY INFORMATION -- WARNING HAZARDOUS VOLTAGE

Use this pump only on a 115 volt circuit. Pump is equipped with an approved 3-conductor cord and a 3-prong grounding-type plug. To reduce the risk of electric shock, connect it to a properly grounded, grounding-type receptacle. If circuit has a 2-prong receptacle, replace it with a properly grounded 3-prong receptacle installed in accordance with the National Electrical Code and local codes and ordinances. Any extension cord used must be outdoor grade, gauge 16 AWG or heavier, and not more than 25' long. WARNING: Risk of fire or explosion if used to pump flammable liquids or if used in explosive atmospheres. Pump water only with this pump. Pump is designed to pump water at temperatures between 32§ - 77§ F (0§ - 25§ C) only. WARNING: Risk of electrical shock. Do not allow the motor to get wet!

CAUTION: Risk of burns. During normal operation, motor case may heat enough to burn you. Do not touch motor when it is hot. Do not operate the pump continuously at a discharge pressure of more than 12 psi (83kPa) or discharge lift of more than 28' (8.5M), as the motor will exceed normal safe operating temperature and may heat to 180§ - 190§ F (82§ - 88§ C).

NOTICE: This unit is not designed for applications involving salt water or brine! Use with salt water or brine will void warranty.

Def.'s 56.1 ¶ 3; Pl.'s 56.1 ¶ 3 (boldface in original). The Pump also had an electrical cord. Attached to that cord was an orange tag, which contained the following warning:

WARNING Risk of fire or explosion. Do not use in explosive atmospheres. Pump water only with this pump.

Def.'s 56.1 ¶ 4; Pl.'s 56.1 ¶ 4 (boldface in original). Additionally, on the body of the Pump itself, there is an orange warning sticker with black lettering, which provides:

NOTICE: Add 1 teaspoon of oil to pump inlet before each start-up. Do not run pump dry. Do not pump flammable liquids. Pump only water with this pump.

Def.'s 56.1 ¶ 5; Pl.'s 56.1 ¶ 5 (boldface in original).

C.The Accident

Immediately before using the Pump on April 17, 2009, Kaplan reviewed the owner's manual to learn about the Pump. Def.'s 56.1 ¶ 14; Pl.'s 56.1 ¶ 14. Kaplan did not, however, read the warnings on the orange sticker attached to the Pump's power cord, Def.'s 56.1 ¶ 15;

Pl.'s 56.1 ¶ 15, nor does Kaplan recall whether he saw the warning sticker on the side of the Pump itself. Def.'s 56.1 ¶ 16; Pl.'s 56.1 ¶ 16. Kaplan does, however, admit that a warning on a product is something that a user is expected to read, Def.'s 56.1 ¶ 17; Pl.'s 56.1 ¶ 17, and that he has previously read warnings on other products. Def.'s 56.1 ¶ 18; Pl.'s 56.1 ¶ 18. At deposition, Kaplan conceded that he knows the definition of "flammable," Def.'s 56.1 ¶ 22; Pl.'s 56.1 ¶ 22, and that a warning to pump only water is inconsistent with his intended use of pumping gasoline. Def.'s 56.1 ¶ 23; Pl.'s 56.1 ¶ 23.

On April 17, 2009, Kaplan used the Pump to pump gasoline out of a jet ski. Pl.'s 56.1 ¶ 36; Def.'s Reply 56.1 ¶ 36. Within one minute of starting pumping, the Pump exploded, and Kaplan caught fire. Pl.'s 56.1 ¶ 41; Def.'s Reply 56.1 ¶ 41. Kaplan was on fire for one to two minutes before he was able to extinguish the flames. Pl.'s 56.1 ¶ 42; Def.'s Reply 56.1 ¶ 42. Kaplan was then taken to Westchester Medical Center and treated in the burn ...


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