     10-3504-cv
     State Farm Fire & Cas. Co. v. Nutone, Inc.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17th day of June, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                BARRINGTON D. PARKER,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       STATE FARM FIRE & CASUALTY COMPANY,
14       a/s/o Kevin Curran and Elizabeth
15       Curran,
16                Plaintiff-Appellant,
17
18                    -v.-                                               10-3504-cv
19
20       NUTONE, INC.,
21                Defendant-Appellee.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR PLAINTIFF-APPELLANT:              Stuart D. Markowitz, Law Offices
25                                             of Stuart D. Markowitz, P.C.,
26                                             Jericho, New York.
27
28       FOR DEFENDANT-APPELLEE:               Marc Rowin, Lynch Rowin LLP, New
29                                             York, New York.
30
 1        Appeal from a judgment of the United States District
 2   Court for the Eastern District of New York (Wall, M.J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Plaintiff-Appellant State Farm Fire & Casualty Company
 9   (“State Farm”) appeals from an August 11, 2010 judgment
10   entered in the United States District Court for the Eastern
11   District of New York (Wall, M.J.) in favor of Defendant-
12   Appellee Nutone, Inc. (“Nutone”) dismissing State Farm’s
13   claims of design defect and negligent failure to warn.   We
14   assume the parties’ familiarity with the underlying facts,
15   the procedural history, and the issues presented for review.
16
17        “In reviewing a district court’s decision in a bench
18   trial, we review the district court’s findings of fact for
19   clear error and its conclusions of law de novo.” White v.
20   White Rose Food, 237 F.3d 174, 178 (2d Cir. 2001). “Under
21   the clearly erroneous standard, there is a strong
22   presumption in favor of a trial court’s findings of fact if
23   supported by substantial evidence. We will not upset a
24   factual finding unless we are left with the definite and
25   firm conviction that a mistake has been committed.” Id.
26   (internal quotation marks omitted).
27
28   [1] To establish a prima facie case in a strict products
29   liability action predicated on a design defect, a “plaintiff
30   must show that the manufacturer breached its duty to market
31   safe products when it marketed a product designed so that it
32   was not reasonably safe and that the defective design was a
33   substantial factor in causing plaintiff’s injury.” Voss v.
34   Black & Decker Mfg. Co., 59 N.Y.2d 102, 107 (1983). “A
35   manufacturer who places a defective product on the market
36   that causes injury may be liable for the ensuing injuries.
37   A product may be defective when it contains a manufacturing
38   flaw, is defectively designed or is not accompanied by
39   adequate warnings for the use of the product.” Liriano v.
40   Hobart Corp., 92 N.Y.2d 232, 237 (1998) (internal citations
41   omitted). “[A] manufacturer of a product may not be cast in
42   damages, either on a strict products liability or negligence
43   cause of action, where, after the product leaves the
44   possession and control of the manufacturer, there is a
45   subsequent modification which substantially alters the
46   product and is the proximate cause of plaintiff’s injuries.”


                                  2
 1   Robinson v. Reed-Prentice Div. of Package Mach. Co., 49
 2   N.Y.2d 471, 475 (1980).
 3
 4        State Farm contends that the magistrate judge erred by
 5   placing the burden on State Farm to prove that: (1) the
 6   ceiling fan did not contain a thermal cut-off (“TCO”) as
 7   manufactured; and (2) the ceiling fan was not substantially
 8   modified after leaving Nutone’s possession. We disagree.
 9   The magistrate judge’s findings of fact and conclusions of
10   law make no mention of the burden of proof. Instead, the
11   magistrate judge relied on documentary evidence and expert
12   testimony in concluding that the ceiling fan was designed
13   and manufactured with a TCO and that the ceiling fan was
14   modified at some point after leaving Nutone. Although
15   neither party could identify who removed the TCO, the
16   magistrate judge credited testimony that, sometimes,
17   “workers do unexpected things in the field.” State Farm
18   Fire & Cas. Co. v. Nutone, Inc., No. CV 05-4817(WDW), 2010
19   WL 3154853, at *8 (E.D.N.Y. Aug. 9, 2010). These findings
20   of fact are not clearly erroneous with respect to State
21   Farm’s design defect claim.
22
23   [2] To prevail on a claim for negligent failure to warn, a
24   plaintiff must demonstrate that (1) a manufacturer has a
25   duty to warn (2) against dangers resulting from foreseeable
26   uses about which it knew or should have known, and (3) that
27   failure to do so was the proximate cause of the harm. See
28   Liriano, 92 N.Y.2d at 237. “A manufacturer has a duty to
29   warn against latent dangers resulting from foreseeable uses
30   of its product of which it knew or should have known.” Id.
31
32        As the magistrate judge concluded, State Farm offered
33   no evidence showing that Nutone’s failure to warn was a
34   substantial factor in causing the fire. Nutone, 2010 WL
35   3154853, at *9. There was no evidence as to where a warning
36   should have been placed, what it should have said, and
37   whether it would have been heeded. Accordingly, the
38   magistrate judge’s findings are not clearly erroneous.
39
40        We have considered all of State Farm’s remaining
41   arguments and find them to be without merit. For the
42   foregoing reasons, the judgment of the district court is
43   hereby AFFIRMED.
44                               FOR THE COURT:
45                               CATHERINE O’HAGAN WOLFE, CLERK
46



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