United States District Court, N.D. New York
BONNIE S. O'CONNOR and WILLIAM W. O'CONNOR, Plaintiffs,
LOWE'S HOME CENTERS, INC., V. T.I., INC., DARE WOOD INDUSTRY (JIANGXI) CO., LTD., and ANXI HENGHUI TECHNOLOGY COMPANY LIMITED, Defendants. LOWE'S HOME CENTERS, INC., and V. T.I., INC., Third-Party Plaintiffs,
ROSEMARY O'CONNOR, Third-Party Defendant.
Dennis A. First, Margaret E. Dunham, O'Connor, O'Connor Law Firm-Albany Office, Albany, NY, for Plaintiffs Bonnie S. O'Connor and William W. O'Connor.
Brian D. Carr, Carter, Conboy Law Firm, Albany, NY.
Javier F. Flores, Manion, Gaynor Law Firm, Boston, MA.
Judith B. Aumand, Kevin P. Burke, Burke, Scolamiero Law Firm, Albany, NY, for Defendants/Third-Party Plaintiffs Lowe's Home Centers, Inc. and V.T.I., Inc.
William C. Foster, David M. Cost, Hiscock, Barclay Law Firm-Albany Office, Albany, NY, for Third-Party Defendant/Counterclaimant Rosemarie O'Connor.
MEMORANDUM-DECISION AND ORDER
BRENDA K. SANNES, District Judge.
Plaintiffs Bonnie O'Connor and William O'Connor ("Plaintiffs") have brought this product liability diversity action against Lowe's Home Centers, Inc., V.T.I., Inc., Dare Wood Industry (Jiangxi) Co., Ltd.,  and Anxi Henghui Technology Company Limited,  alleging, inter alia, claims for product defect, failure to warn, negligence, and breach of warranty (the "underlying action"). (Dkt. No. 43). Plaintiffs allege that Bonnie O'Connor was seriously injured by a dangerous and defective three-tiered round stand (the "Stand") from the Lowe's Home Improvement Store in Saratoga Springs, New York, which was purchased and assembled by Bonnie O'Connor's sister-in-law Rosemarie O'Connor. ( Id. ). Lowe's Home Centers, Inc. and V.T.I., Inc. ("Defendants") have filed a Third-Party Complaint against Rosemarie O'Connor for common law indemnification and contribution alleging that the accident was caused solely by her negligence in assembling the Stand, or by some combination of her negligence and that of Plaintiffs in "assembling and/or handling" the Stand. (Dkt. No. 26, ¶¶ 13-15). In her answer to the Third-Party Complaint, Rosemarie O'Connor asserted a counterclaim for common law indemnification against the Defendants. (Dkt. No. 31, ¶¶ 46-50). Rosemarie O'Connor now seeks summary judgment, dismissing the Defendants' claims for indemnification and contribution, and granting judgment on her counterclaim for indemnification against Defendants. (Dkt. No. 66). For the reasons set forth below, her motion is granted in part and denied in part.
A. Purchase and Assembly of the Stand
On or about December 15, 2009, Rosemarie O'Connor purchased the Stand from a Lowe's Home Improvement Store in Saratoga Springs, New York. (O'Connor SMF, ¶ 7). The Stand has three tiers of round shelves set between four legs with a pagoda top and finial. ( Id. ). The Stand was manufactured overseas, and distributed by V.T.I., Inc. to Lowe's Home Centers, Inc. for sale at its Saratoga Springs store. (Defendants' Response and SMF, ¶ 3). The Stand came packaged in a box with instructions for assembly. (O'Connor SMF, ¶¶ 8-9). The instructions provide the following warnings and cautions: "Do not climb on this stand, " "Follow assembly steps exactly, " and "When placing wood shelves, please follow the directions as illustrations shown below to ensure wood shelves will be set properly." (Instructions, Dkt. No. 66-6, p. 59). The instructions display a diagram of the assembled Stand and list the package contents; the purchaser is directed to "[c]ompare parts with package contents list and diagram above, " before beginning assembly, and "[i]f any part is missing or damaged, do not attempt to assemble the product." ( Id., pp. 57-59). The instructions also list a customer service telephone number for issues involving "[q]uestions, problems, missing parts." ( Id., 57).
The instructions provide a number of illustrations of the assembly process, along with the following directions:
1. Open folding stand (A) to have 4 legs set on the floor [and] place bottom shelf (F) over the braces as it's shown in the right and fixed with wood screws (GG) firmly. 2. Place middle shelf (E) as illustrations show and fixed with wood screws (GG) firmly. 3. Place upper shelf (D) over the braces as it's shown in the right and fixed with wood screws (GG) firmly. 4. Align 4 prominent irons to the holes as shown In [sic] the illustrations then attach pagoda top (B) to the stand and screw finial (C) into the top to complete all assembly steps.
( Id., pp. 59-61). Figure 4 of the of the instructions depicts the final step in the assembly process, with the pagoda top directly above and lined up with the posts of the frame, and down arrows drawn to indicate the direction for placement. ( Id., p. 61). The instructions provide an estimated assembly time of 30 minutes and state that an included screwdriver is the only tool required. ( Id., p. 59).
Rosemarie O'Connor assembled the Stand with assistance from her husband Robert O'Connor. (O'Connor SMF, ¶ 10). First, Ms. O'Connor read the instructions. (Rosemarie O'Connor Dep., p. 22). Then, Ms. O'Connor unfolded the stand and stood it on the floor. ( Id., pp. 25-26). Next, Ms. O'Connor placed the shelves on the stand and affixed them with the included wood screws. ( Id., p. 26). Finally, she asked her husband for help putting the pagoda on top of the Stand. ( Id., pp. 32-33). Ms. O'Connor's husband was only involved in the final step of putting the pagoda on top of the frame to complete the Stand. (O'Connor SMF, ¶ 16). Mr. O'Connor described his assistance as "push[ing] the bars in so it lined up so she could slide it in." (Robert O'Connor Dep., pp. 63-64). Ms. O'Connor described his assistance as "to move the arms, in order for the prongs to fit in." (Rosemarie O'Connor Dep., pp. 31-32). Ms. O'Connor testified that it took her husband "a little bit of strength" and "not a lot of effort" to put the pagoda on. ( Id., p. 32). Mr. O'Connor described the force he used as a "little pressure" and stated "it didn't require a great deal of physical force." (Robert O'Connor Dep., Dkt. No. 82, p.
1). According to Ms. O'Connor, it "took probably five minutes" to put the pagoda on top. (Rosemarie O'Connor Dep., pp. 31-32). The instructions do not describe any amount of force to be used in order to align the frame supports and put on the pagoda top. (Instructions, pp. 59-61). There was no included fastener or other means by which to attach the pagoda ...