United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
Gregory H. Woods, United States District Judge.
Robert De La Cruz (“Plaintiff” or “De La
Cruz”) brought this product liability action against
Defendant Ecolab Inc. (“Defendant” or
“Ecolab”), alleging that his exposure to Apex
Presoak, a dishwashing product manufactured by Ecolab,
resulted in a chemical burn that later required the
amputation of his foot. De La Cruz asserts that Ecolab is
liable for his injuries because it failed to warn him that
Apex Presoak could cause chemical burns. Ecolab has moved for
summary judgment, arguing-among other reasons-that De La Cruz
has failed to demonstrate that Ecolab “knew or should
have known” that Apex Presoak could cause chemical
burns, and thus Ecolab cannot be held liable for failure to
warn De La Cruz of this risk. Because the Court agrees that De
La Cruz has not put forth sufficient evidence that Ecolab
knew or should have known that its product could cause
chemical burns, Ecolab's motion for summary judgment is
Court views the facts in the light most favorable to the
non-moving party. See Johnson v. Killian, 680 F.3d
234, 236 (2d Cir. 2012). Unless otherwise indicated, the
following facts are undisputed.
Cruz began work as a temporary dishwasher at the former
Waldorf Astoria Hotel in New York City (the
“Waldorf”) on March 27, 2015. Plaintiff's
Response to Defendant Ecolab Inc.'s Rule 56.1 Statement
of Undisputed Material Facts, Dkt. No. 39-1 (“Def. 56.1
Stmt.”), at ¶¶ 1, 42; Defendant Ecolab
Inc.'s Response to Plaintiff's Rule 56.1 Statement of
Undisputed Material Facts, Dkt. No. 47 (“Pl. 56.1
Stmt.”), at ¶ 195. The Waldorf did not provide De
La Cruz with any job instruction or training when he was
hired or during his first four days at the hotel. Def. 56.1
Stmt. at ¶¶ 41, 44. When De La Cruz arrived at work
at 8 o'clock in the evening on March 31, 2015, he was
told to go to the fourth floor and to wash the dirty dishes
that were there. Id. at ¶ 45; Pl. 56.1 Stmt. at
¶ 206. He did not receive any further instructions. Def.
56.1 Stmt. at ¶ 45.
reporting to the fourth-floor kitchen, De La Cruz first spent
about four-and-a-half hours loading the dishwashers with
glasses and dishes. Id. at ¶ 47. When he came
to a stack of approximately 100 large round plastic trays, he
first tried to load those trays into the dishwashers.
Id. at ¶¶ 48, 50. After he realized the
trays would not fit in the dishwashers, De La Cruz decided to
wash them by hand. Id. at ¶ 50. De La Cruz
noticed that a pump and hose were attached to the wall near
the sink. Id. at ¶ 49. When pushed, the pump
dispensed a blue liquid. Id. De La Cruz poured some
of the blue liquid into a one-fifth gallon container and
added water. Id. at ¶ 50. He used that mixture
to hand wash the trays with a sponge and then rinsed each
tray with water. Id. De La Cruz did not measure the
amount of the blue liquid he used, though he estimated that
over the course of the hour and a half he spent cleaning the
trays he dispensed the liquid from the pump into the
one-fifth gallon container over thirty times. Id. at
to De La Cruz, the blue liquid he used as dishwashing
detergent was instead a product called Apex Presoak. Def.
56.1 Stmt. at ¶ 50; Pl. 56.1 Stmt. at ¶¶
180-81. Apex Presoak, which is manufactured by Ecolab, is
used to soak silverware to remove food soil before the
silverware is machine washed. Def. 56.1 Stmt. at ¶ 1;
Pl. 56.1 Stmt. at ¶ 166. At the time Ecolab products
were installed in the Waldorf in late 2013, an Ecolab
employee conducted a training at the Waldorf in which he
taught hotel employees how to use Apex Presoak, including how
to properly dilute one pump of Presoak into two gallons of
water. Def. 56.1 Stmt. at ¶¶ 4-5, 18-20. A binder
in a cage on the wall of the fourth-floor kitchen contained
the “Apex Presoak Safety Data Sheet, ” which
stated that Apex Presoak as sold is classified as “Eye
Irritation, Category 2A” and that Apex Presoak at use
dilution is “not a hazardous substance or
mixture.” Id. at ¶¶ 16, 34. The
Safety Data Sheet also contained several warnings that users
should wash their skin after coming into contact with Apex
Presoak. Id. at ¶ 36. The dispenser used by De
La Cruz was labeled “Apex Presoak, ” and an
operational chart with pictures and written instructions (in
both English and Spanish) was posted on the wall above the
dispenser. Def. 56.1 Stmt. at ¶ 15; Pl. 56.1 Stmt. at
¶¶ 167-68. The operational chart included a picture
of a bus pan with silverware entering the bus pan, as well as
a picture of the dispenser and an instruction to add water.
Pl. 56.1 Stmt. at ¶ 168. At the time of his deposition,
De La Cruz did not recall whether he saw any posters or
instructions relating to Apex Presoak on the wall of the
fourth-floor kitchen. Id. at ¶ 216.
he completed his shift, De La Cruz noticed that his pants and
socks were soaked with the blue liquid and water he used to
wash the trays. Def. 56.1 Stmt. at ¶¶ 46, 51-52.
Although he changed from his work boots into sneakers before
he left the hotel, he did not change his socks. Id.
at ¶ 52. At the time he left work, De La Cruz did not
feel any pain in his feet. Id. at ¶ 53. De La
Cruz arrived home sometime between 4:30 and 5:00 a.m. on
April 1, 2015. Id. at ¶ 54. When he removed his
shoes and socks, he noticed that his feet were covered in
blisters. Id. De La Cruz testified that he cleaned
his feet and then went to sleep because he was tired and
needed to rest. Deposition of Robert De La Cruz, Dkt. No.
35-7, at 155:5-12.
Cruz went to the emergency room of St. Luke's Hospital
late in the evening of April 1, 2015. Def. 56.1 Stmt. at
¶ 55. The hospital initially classified De La Cruz as
“Triage Acuity: Level III-Urgent, ” and noted
that De La Cruz “state[d] [he] was working and water
got inside of his shoes when went to take off shoes noted
toes with blister and blood. Denies burn to feet.”
Id. at ¶¶ 55, 56. The attending emergency
room doctor, Dr. Ginno Blancaflor, wrote that De La Cruz
“present[ed] with a chief complaint of burn . . . after
had hot water fall on b/l feet about 36 hours ago” and
noted that De La Cruz demonstrated “pos partial
thickness burns of the right foot affecting all toes on
dorsum and plantar surface about 1% ruptured blisters”
and “partial thickness burns to left foot affecting
smaller area.” Id. at ¶¶ 58, 59. De
La Cruz was transferred to the burn unit at New York
Presbyterian Hospital early in the morning on April 2, 2015.
Id. at ¶¶ 63, 64.
James Gallagher, a burn unit surgeon at New York
Presbyterian, examined De La Cruz on April 2, 2015. Dr.
Gallagher noted, “I have inspected the . . . burn
wounds . . . . [T]hey are unlikely to heal [and] we will plan
for surgery.” Id. at ¶ 65. Dr.
Gallagher's notes also reflected that De La Cruz suffered
from “severe uncontrolled diabetes.” Id.
Other medical records confirm that at the time of his injury,
De La Cruz suffered from several medical issues, including an
over fifteen-year history of uncontrolled Type 2 diabetes,
advanced diabetes-related peripheral artery disease of the
legs and feet, and chronic kidney disease. Id. at
Gallagher performed a skin graft operation on De La Cruz on
April 24, 2015, observing that De La Cruz suffered from
“deep second, third and fourth degree” burns on
his right foot. Id. at ¶¶ 66-67; Dkt. No.
35-15 at 5. Between April 24 and July 10, 2015, surgeons at
New York Presbyterian performed further operations on De La
Cruz, including the amputation of his right leg below the
knee and the amputation of his fifth toe on his left foot.
Def. 56.1 Stmt. at ¶ 69.
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary
judgment is proper ‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.'”
(quoting former Fed.R.Civ.P. 56(c))). A genuine dispute
exists where “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party, ”
while a fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “Factual disputes that are irrelevant or
unnecessary will not be counted.” Id.
movant bears the initial burden of demonstrating “the
absence of a genuine issue of material fact, ” and, if
satisfied, the burden then shifts to the non-movant to
present “evidence sufficient to satisfy every element
of the claim.” Holcomb v. Iona Coll., 521 F.3d
130, 137 (2d Cir. 2008) (citing Celotex, 477 U.S. at
323). To defeat a motion for summary judgment, the non-movant
“must come forward with ‘specific facts showing
that there is a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting former Fed.R.Civ.P. 56(e)).
“The mere existence of a scintilla of evidence in
support of the [non-movant's] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [non-movant].”
Anderson, 477 U.S. at 252. Moreover, the non-movant
“must do more than simply show that there is some
metaphysical doubt as to the material facts, ...