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Avola v. Louisiana-Pacific Corp.

United States District Court, E.D. New York

August 28, 2013

ANTHONY AVOLA, et al., Plaintiffs,

Order Date: January 14, 2014

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Anthony Avola, Josephine Avola, Plaintiffs: Raymond D. Radow, LEAD ATTORNEY, Radow Law Group, Great Neck, NY.

For Louisiana-Pacific Corporation, The Home Depot Store # 1202, Defendants: Andrew John Scholz, LEAD ATTORNEY, Michael D. Shalhoub, Goldberg Segalla LLP, White Plains, NY.

For The Home Depot U.S.A., Inc., Defendant: David M. Pollack, LEAD ATTORNEY, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Andrew John Scholz, LEAD ATTORNEY, Michael D. Shalhoub, Goldberg Segalla LLP, White Plains, NY.


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PAMELA K. CHEN, United States District Judge.

This action is about an advertisement that reads: " LP SmartSide products work and cut just like traditional wood, taking nails and screws with ease." (Dkt. No. 23 (" Defs. Ex." ), Ex. G.) Defendants Louisiana-Pacific Corporation (" Louisiana-Pacific" ) and Home Depot U.S.A., Inc. (" Home Depot" ) seek summary judgment, dismissing Plaintiffs' breach of express warranty and false advertising claims based on this advertisement (" Motion" ). (Dkt. No. 22.) The Motion is GRANTED in part and DENIED in part, for the reasons set forth below.

I. Background

A. Avola's Carpentry Experience

Plaintiff Anthony Avola (" Avola" ), a carpenter's son and self-described " master carpenter," has had over three decades of experience in the carpentry industry.[1] (Defs. 56.1 ¶ ¶ 2-6; Defs. Ex. A (" Avola Dep." ), at 12, 82-83.) Avola was also a member of the local carpenters' union for more than two decades. (Defs. 56.1 ¶ 3.)

Avola's industry experience involved working with different types of wood. (Pls. 56.1, at 3 ¶ 12.) At his deposition, Avola stated, based on this experience, that one would only use " soft woods" in construction, for which " you hit the nail once and then you take your finger away and you hammer the rest of it in." (Avola Dep., at 89-90.) Avola added:

[I]n my kind of carpentry--I wasn't a cabinet maker. A cabinet maker uses hard woods. . . . [W]e never drilled in any type of wood because the nail goes through the wood with no problem and that's what I was used to.

( Id. at 91.) While recognizing the risk that nails would ricochet, Avola also stated that he never encountered such risk when nailing into " soft woods" ; if anything, the nails " fall[] lightly" away, rather than ricocheting. (Pls. 56.1, at 3 ¶ 14.)

B. Avola's Employment at Home Depot

In early-to-mid 2000, around the age of 70, Avola took a part-time job as a sales associate at the Home Depot store in Commack,

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New York (the " Home Depot Store" or the " Store" ). (Defs. 56.1 ¶ 8; Avola Dep., at 8, 26.) In spite of his extensive experience in carpentry, Avola was assigned to work in the Store's plumbing department. (Avola Dep., at 74-75.) Avola admitted that he only " knew enough about plumbing to tell [the customers] what they needed," from having observed the plumbers at one of his prior jobs. ( Id. at 75-76.)

Like Avola, other employees of the Store were also assigned to work in departments for which they had little-to-no prior experience. Michael Phillips was only experienced with plumbing and heating, but had worked in the electrical department and on the contractors' desk before moving to the plumbing department. (Defs. Ex. C (" Phillips Dep." ), at 7-8.) Evelyn Pretty likewise worked in the paint, hardware, and lumber departments and on the contractors' desk, even though her background was in floral design and not construction. (Defs. Ex. B (" Pretty Dep." ), at 6-10.) Pretty denied that the Store required its employees to have any experience in home improvement or construction, much less required those in the lumber department to have experience with lumber. ( Id. at 25-26.) As a matter of fact, Phillips insisted that the Store expected its employees to " work every department," regardless of the department to which they were assigned. (Phillips Dep., at 22.)

In terms of the information that the Store's employees were required to possess regarding the products sold, Pretty stated that Home Depot offered different department-specific classes, such as a " very basic class on all the materials in the department" and classes " sponsored by a vendor." (Pretty Dep., at 7-8, 17 (emphasis added).) Specifically, having worked for three years in the lumber department, Pretty also stated that " I'm sure at one point in a class [LP SmartSide] was gone over," though she denied ever having read materials regarding, or practiced using, this product. ( Id. at 8-9, 12-13, 17-19.) Pretty stated that, as such, the employees could only " answer with a basic knowledge of the products" in their departments. ( Id. at 7 (emphasis added); see also id. at 29 (" If [the customers] are looking for a particular product[,] [the sales associates] will show them the types of products that are available, but they don't have the knowledge." ).)

C. Avola's Purchase of LP SmartSide

Home Depot sells siding products to cover the outside of buildings and other structures. Among these products is LP SmartSide, a type of " composite wood" siding product created by combining wood byproducts and chemicals. (Defs. 56.1 ¶ 18; Pretty Dep., at 14.) On its website, Louisiana-Pacific advertises LP SmartSide, touting, in relevant part, that " LP SmartSide products work and cut just like traditional wood, taking nails and screws with ease" (the " Advertisement" ). (Defs. Ex. G.)

According to Pretty, Home Depot also sells other types of siding products, such as " vinyl" and actual " wood." (Pretty Dep., at 15-17.) Information from Home Depot's website, which Plaintiffs introduce into evidence, indicates that the actual " wood" siding products include mostly products made from white cedar and T1-11 Siding, a product made from longleaf pine.[2] (Pls. Ex. B; see also Pretty Dep.,

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at 17 (testifying that " T1[-]11 is all wood" ).) The product page for T1-11 Siding specifically describes this product as plywood with a " traditional wood siding look ." (Pls. Ex. B (emphasis added).) Plywood is created by layering thin strips of actual wood.[3] (Avola Dep., at 132.)

On the afternoon of October 1, 2009, Avola went to the Home Depot Store, where he was still employed, to buy a siding product for the extension to the shed in his backyard. (Defs. 56.1 ¶ ¶ 26-27; Defs. Ex. E; Avola Dep., at 130-31; Pretty Dep., at 20.) According to Avola, he had previously used T1-11 Siding for the shed. (Avola Dep., at 132, 139.) This time, Avola had also purchased T1-11 Siding, and was about to leave the Store when an unnamed, Home Depot sales associate[4] in the lumber department approached him. (Pls. 56.1, at 12 ¶ 2; Avola Dep., at 33, 131.) The sales associate suggested that Avola try LP SmartSide, as an alternative, stating that it " nails just like wood," " works as easy as traditional wood siding," and can be installed the same way as T1-11 Siding (the " Related Statements" ).[5] (Pls. 56.1, at 12 ¶ ¶ 3-4; Avola Dep., at 33-34.) According to Avola, this was the first time that he had heard about LP SmartSide.[6] (Avola Dep., at 34.) Avola subsequently purchased LP SmartSide. (Defs. 56.1 ¶ 26.)

D. Avola's Accident

On the morning of November 3, 2009, Avola started installing LP SmartSide on the extension to the shed. (Defs. 56.1 ¶ ¶ 29-30.) For nailing into this " composite wood" siding product ( id. ¶ 18), Avola adhered to the same procedures that he had previously followed for " wood" siding products. (Pls. Ex. A ¶ 7.) Avola proceeded to hammer two to three nails per side into every panel of LP SmartSide, in order to keep the panels in place. (Pls. 56.1, at 6 ¶ 34; Avola Dep., at 178.) Although LP SmartSide's installation instructions--which Avola neither received when he purchased this product, nor saw until after the

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accident--required at least the use of " sixpenny" ( i.e., two-inch) nails, Avola used " fourpenny" ( i.e., one-and-a-half-inch) nails. (Defs. 56.1 ¶ ¶ 25, 31, 43; Avola Dep., at 44, 47, 144-45.) Avola averred that, under the carpenters' union's rules, use of the shorter nails was still proper, given the thickness of the panels. (Defs. 56.1 ¶ 32.)

Avola began nailing in the panels of LP SmartSide from the back to the front of the shed. (Avola Dep., at 170.) According to Avola, even in the beginning, the nails refused to stay in place after he hammered them once; [7] he had to hammer each nail two or three times for it to hold, before letting go with his left hand and fully hammering in the rest of the nail. ( Id. at 180-81.) Avola also stated that, in some places, the nails " fell to the floor," and elsewhere " it was hard to nail, so I would skip the area and go to a different area to nail." ( Id. at 180-82; see also id. at 190 (testifying that " I tried to nail it in one spot and then I had to change the place of the nail because it became--after two or three times, it wouldn't even hold in place anymore" ).)

By mid-afternoon, Avola had hammered about 100 nails into seven panels of LP SmartSide. (Defs. 56.1 ¶ 35; Avola Dep., at 178-79, 182-84.) Shortly thereafter, as he was nailing in the eighth and last panel, Avola stooped down slightly, tapped one of the nails into place, let go of it, and hammered it again once or twice, at which point it ricocheted into his left eye. (Defs. 56.1 ¶ ¶ 37-38.) Avola recounted that the nail " felt like a bullet hit my eye" and that, after the accident, he felt as if he was " looking through . . . a bottle of Vasoline." (Avola Dep., at 170, 188.)

Avola stated that, six months after the accident, upon his recovery, he finished nailing in the eighth panel of LP SmartSide using the same type of nails, except that this time he pre-drilled the nails into the panel. ( Id. at 198.)

II. Procedural History

On July 5, 2011, Plaintiffs commenced this action in New York State court. (Dkt. No. 1.) Plaintiffs' Complaint, construed liberally insofar as it combines several claims under single causes of action, asserts the following claims: design and manufacturing defects, failure to warn, negligence, breaches of express and implied warranties, false ...

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