Cory WILSON, Plaintiff-Appellant, v. GLENRO, INC., Defendant-Appellee, 524 F. App'x 739

SUMMARY ORDER Plaintiff-Appellant Cory Wilson (“Plaintiff’) appeals from

summary judgment of the district court, entered on March 28, 2012, dismissing his claims against Glenro, Inc., (“Defendant”) for strict liability, breach of implied warranty of merchantability, and negligence related to Defendant’s alleged failure to warn about dangers of Defendant’s product that led to Plaintiffs injury. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. We review the grant or denial of a motion for

summary judgment de novo. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). We resolve all ambiguities and draw all permissible factual inferences in favor of the nonmoving party. See Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir.2004). If there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party on the issue on which

summary judgment was sought, then we must conclude

summary judgment was improper. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 82-83 (2d Cir.2004). The “mere existence,” however, “of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis omitted). Although the plaintiff has pleaded claims for strict liability, breach of implied warranty of merchantability, and negligence, each claim is premised upon the defendant’s failure to warn. ‘While strict liability and negligence are analytically distinct claims, [under Vermont law] they become one where liability rests on a failure to warn.” McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir.1995) (citing Ostrowski v.

Hydra-Tool Corp., 144 Vt. 305, 479 A.2d 126, 127 (1984)); see also Moffitt v. Icynene, Inc., 407 F.Supp.2d 591, 599 (D.Vt.2005) (“The warranty of merchantability under the [Vermont] UCC is equivalent to strict product liability.”). To survive

summary judgment on claims premised on “a ‘failure to warn’ theory, plaintiff must provide evidence from which a reasonable jury could find: (1) that defendant owed a duty to warn plaintiff; (2) lack of warning made the product unreasonably dangerous, hence defective; and (3) defendant’s failure to warn was the proximate cause of plaintiffs injury.” McCulloch, 61 F.3d at 1044; see also Kellogg v. Wyeth, 762 F.Supp.2d 694, 700 (D.Vt.2010). The district court considered only whether the Defendant owed a duty to warn Plaintiff, concluding as a matter of law that it did not. We agree.

Under Vermont law, a manufacturer, like the Defendant, has a duty to warn “when it knows or has reason to know of dangers inherent in the product at the time the product is sold, or when the product is dangerous to an extent beyond that which would be contemplated by an ordinary consumer.” Needham v. Coordinated Apparel Grp., Inc., 174 Vt. 263, 811 A.2d 124, 129 (2002) (internal quotation omitted). This includes any “latent danger beyond the knowledge of an ordinary consumer,” id., but not those dangers that are “patent” or “generally known and recognized.” Menard v. Newhall, 135 Vt. 53, 373 A.2d 505, 507 (1977).

Here, the Plaintiff and his expert conceded that there were no inherent defects or dangers in Defendant’s product at the time of its sale. Furthermore, Plaintiff cannot refute that, as a matter of law, the record shows the Defendant could not have reasonably foreseen the danger alleged to have injured the Plaintiff. Thus, even though a manufacturer’s duty to warn “extend[s] to employees of purchasers as well,” Ostrowski, 479 A.2d at 128, Plaintiff nevertheless fails to show that Defendant owed any duty to warn Plaintiffs employer. This is fatal to Plaintiffs claim.

The dangers that Plaintiff asserts were the proximate cause of his injuries all relate to his employer’s incorporation of Defendant’s product into its production line, including the temperature settings, line speeds, and access points for maintenance.

Defendant cannot be said to owe Plaintiffs employer any duty to warn about dangers specific to the undisclosed risks that the employer created in incorporating Defendant’s product into its supply line when the employer exclusively controlled such integration, had more specific technical knowledge of its process and PTFE-sintering generally than Defendant, and never asked Defendant’s advice about its product.

Accordingly, Defendant, a designer-manufacturer, could not reasonably have foreseen the dangers that gave rise to Plaintiffs injuries when such dangers do not relate to the independent operability of Defendant’s product, but instead relate solely to the dangerous way in which Plaintiffs employer used that product in its proprietary methods. Plaintiff contends also that whether the Defendant owed Plaintiff a duty to warn is a question of disputed fact because such an inquiry involves a determination of reasonable foreseeability. We disagree.

The determination of whether there is a legal duty is a question of law “dependent upon a variety of relevant factors ... of which foreseeability of the risk is a primary consideration.” Kellogg, 762 F.Supp.2d at 705 (internal quotation marks omitted). Reasonable foreseeability is the “ [application of a legal standard to facts” that, when such facts are not in genuine dispute, we determine as a question of law. United States v. Ekwunoh, 12 F.3d 368, 372 (2d Cir.1993).

Here, reasonable jurors could not disagree that Defendant had no knowledge of the specific integration or proprietary process in which Plaintiffs employer intended to use its product. Rather, Defendant simply delivered its product-&emdash;one that could be used in a wide variety of applications&emdash;to a customer it might have known from public information, at most, engaged in sintering.

Indeed, Plaintiffs own expert testified that the “level or scope” of any danger from Plaintiffs employer’s PTFE processing “would not have been reasonably known to Glenro.... ” Such undisputed facts permit us to conclude that Defendant could not reasonably foresee its product posed the dangers alleged to have caused Plaintiffs injuries. We have considered all of Plaintiffs other arguments and found each of them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.