Scott et al v. Roto-Die, Inc.,
DECISION AND ORDER granting Deft's 30 Motion for Summary Judgment and the sole remaining claim against Deft in this action is dismissed. Based upon Deft's acknowledgment that its third party action against J & K Plumbing and Heating Co., Inc. is rendered moot if Pltfs' action against Deft is dismissed, the third party action is dismissed as moot. Signed by Senior Judge Thomas J. McAvoy on 12/7/11. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KRIS SCOTT and CAROL SCOTT,
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
Following the Court’s decision on Defendant’s prior motion for summary judgment,
see 10/17/11 Dec. & Ord., dkt. # 29, the sole remaining claim for liability was under a postmarketing failure to warn theory. Defendant was granted leave to file a second summary
judgment motion seeking to dismiss this claim, which is now before the Court. See Mot.,
dkt. # 30. Plaintiffs have not filed opposition to the motion, and their time to do so has
expired. For the reasons that follow, the motion is granted.
Plaintiffs commenced this action to recover damages for Plaintiff Kris Scott’s injury
that occurred on July 10, 2007 when he had three fingers amputated by a Roto-Die sheet
metal bending machine Model 15/12 at his place of employment. Operation of the RotoDie machine entails an operator pressing down on a foot pedal that causes a ram with a
die unit attached to it be lowered so that it comes into contact with the metal on a table
under the ram and bends the metal. Id. pp. 44-45. When the operator takes his foot off of
the pedal, the ram and die unit go up and the metal can be removed from the machine.
Id. pp. 56-57, 59.
At the time of his injury, Plaintiff was assisting a co-worker, who was operating the
Roto-Die machine, in attempting to change the 8 foot die unit attached to the operational
ram. Scott Dep. pp. 27, 56-66, 76-87. Plaintiff was of the understanding that bolts
securing the die unit to the operational ram had been loosened, and that the die unit would
separate from the ram when lifted. Plaintiff and the operator placed their hands under the
operational ram in order to catch the die unit when the operational ram was lifted. Id. 7687. Because the die unit did not dislodge from the operational ram when lifted, the
operator started slowly lowering the operational ram back down to allow for further
Due to Plaintiff’s failure to file opposition to the pending m otion, the supported factual allegations in
Defendant’s papers are deem ed adm itted for purposes of this m otion. See Fed. R. Civ. P. 56(e)(2); N.D.N.Y.
L.R. 7.1(a)(3); see also Am nesty Am erica v. Town of W est Hartford, 288 F.3d 467, 470 (2d Cir. 2002)(“W e
agree . . . that F ED . R. C IV . P. 56 does not im pose an obligation on a district court to perform an independent
review of the record to find proof of a factual dispute.”); Monahan v. New York City Dep’t of Corrections, 214
F.3d 275, 291 (2d Cir. 2000)(Local rules requiring Statem ents of Material Facts are “designed to place the
responsibility on the parties to clarify the elem ents of the substantive law which rem ain at issue because they
turn on contested facts. . . . W hile the trial court has discretion to conduct an assiduous review of the record
in an effort to weigh the propriety of granting a sum m ary judgm ent m otion, it is not required to consider what
the parties fail to point out.”).
loosening of the bolts holding the die unit to the operational arm. Id. pp. 83-84. Plaintiff
was, at this time, still “holding onto the ram because [he] didn’t want the die to fall out.” Id.
p. 85. However, “before [Scott] knew it, it just came down on [his] hands” crushing his
fingers. Id. p. 86-87. Plaintiff admitted that it is "common sense" to keep his hands out of
the operating machine, id. p. 66, and that it was obvious to keep his hands away from the
ram when it was operating. Id. pp. 66, 68-69. At the time of Plaintiff’s injury, he had
operated the Roto-Die sheet metal bending machine Model 15/12 once a week for two to
three months prior to the incident. Id. p. 37.
To prevail on a claim for negligent failure to warn, a plaintiff must demonstrate that
(1) a manufacturer has a duty to warn (2) against dangers resulting from foreseeable uses
about which it knew or should have known, and (3) that failure to do so was the proximate
cause of the harm. Liriano v. Hobart Corp., 92 N.Y.2d 232, 237 (1998). “A manufacturer
has a duty to warn against latent dangers resulting from foreseeable uses of its product of
which it knew or should have known.” Id. Absent a duty of care, however, there is no
breach and no liability. See generally Gordon v. Muchnick, 180 A.D. 2d 715, 715 (2d Dept.
“No duty to warn arises when the injured party is already aware of the specific
Plaintiffs’ failure to oppose this m otion for sum m ary judgm ent is deem ed abandonm ent of the sole
ream ing claim in this action. See Rizzo-Puccio v. College Auxiliary Services, Inc., 216 F.3d 1073 (2d Cir.
2000) (claim s not addressed in opposition to defendants' m otion for sum m ary judgm ent were deem ed
abandoned). The Court will proceed to determ ine whether Defendant has m et its burden of dem onstrating its
entitlem ent to sum m ary judgm ent. See N.D.N.Y.L.R. 7.1(b)(3)(“W here a properly filed m otion is unopposed
and the Court determ ines that the m oving party has m et its burden to dem onstrate entitlem ent to the relief
requested therein, the non-m oving party's failure to file or serve any papers as required by this Rule shall be
deem ed as consent to the granting or denial of the m otion, as the case m ay be, unless good cause be
hazard.” Wick v. Wabash Holding Corp., --- F. Supp.2d ----, 2011 WL 938383, at *10
(W.D.N.Y., March 14, 2011); see Lancaster Silo & Block Co. v. Northern Propane Gas
Co., 75 A.D. 2d 55, 65 (4th Dept. 1980)(It is well settled that there is no duty to "warn a
consumer already aware through common knowledge or learning of a specific hazard.").
Put another way, a defendant has no duty to warn a plaintiff about risks for which he was
aware of, or should have been aware of, through his professional experience, learning and
common knowledge. Billiar v Minnesota Mining and Mfg. Co., 623 F.2d 240, 243 (2d Cir.
1980); see Butler v. Interlake Corporation, 244 AD.2d 913 (4th Dept. 1997); Lancaster Silo
& Block Co, 75 A.D. 2d at 55.
Here, Plaintiff’s deposition answers establish that the danger from the machine was
open and obvious and that Plaintiff was aware of the danger posed by placing his hand in
the machine while another person was operating it. Thus, Defendant had no duty to warn
Plaintiff because he was aware of the hazards presented by the unguarded operational
ram. See Billiar, 623 F.2d at 243 (2d Cir. 1980).
Moreover, and assuming arguendo that a duty to warn existed, the open and
obvious nature of the danger negates any determination that the lack of a warning was a
proximate cause of Plaintiff’s injuries. See Burke v. Spartanics, Ltd., 252 F.3d 131, 139
(2d Cir. 2001)(“Thus, it may well be the case that a given risk is not ‘obvious,’ in the sense
of precluding any duty to warn, but that nevertheless, because the risk was well
understood by the plaintiff, a warning would have made no difference.”)(citing Brady v.
Dunlop Tire Corp., 711 N.Y.S. 2d 633, 634–36 (3d Dept. 2000). As indicated above,
Plaintiff was aware that, based on common sense and his prior experience operating the
Roto-Die machine, it was dangerous to place his hands inside the machine and under the
ram while it was being operated, but he did so anyway in an attempt to remove the die
unit. Under these circumstances, “the failure to warn was therefore not a cause of the
harm.” Burke, 252 F.3d at 139; see also Liriano, 92 N.Y.2d at 241 (“where the injured
party was fully aware of the hazard through general knowledge, observation or common
sense, or participated in the removal of the safety device whose purpose is obvious, a lack
of a warning about that danger may well obviate the failure to warn as a legal cause of an
injury resulting from that danger.”). No reasonable fact finder could conclude that the lack
of a warning3 was a proximate cause of Plaintiff’s injuries.
For the reasons discussed above, Defendant’s motion for summary judgment [dkt.
# 30] is GRANTED and the sole remaining claim against Defendant in this action is
DISMISSED. Based upon Defendant’s acknowledgment that its third-party action against
J&K Plumbing and Heating Co., Inc. (Plaintiff Kris Scott’s employer at the time he was
injured) is rendered moot if Plaintiffs’ action against Defendant is dismissed, see dkt. # 32,
the third-party action is DISMISSED as moot. The Clerk is directed to mark this case as
IT IS SO ORDERED
Dated:December 7, 2011
It should also be noted that Plaintiffs have not proffered what type of warning they contend should
have been provided.
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