10-4269-cv (L)
Noveck v. Avis Rent a Car System, LLC, et al.

                                    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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 17th day
of November, two thousand eleven.

PRESENT:

          AMALYA L. KEARSE,
          JOSEPH M. MCLAUGHLIN,
          JOSÉ A. CABRANES,
                               Circuit Judges.
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MARK NOVECK,

                               Plaintiff-Appellee-Cross-Appellant,

IRINA NOVECK,

                               Plaintiff-Appellee,

          v.                                                                               Nos. 10-4269-cv (Lead)
                                                                                                10-4283-cv (XAP)

AVIS RENT A CAR SYSTEM, LLC, AESOP LEASING, LP,
CENDANT CAR RENTAL GROUP, PV HOLDINGS CORP.,

                               Defendants-Appellants-Cross-Appellees,

GENERAL MOTORS CORP.,

                                Defendant.
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                                                               1
FOR PLAINTIFFS-APPELLEES AND
PLAINTIFF-CROSS-APPELLANT:                                      LARRY E. COBEN, Anapol Schwartz,
                                                                Scottsdale, AZ.

FOR DEFENDANTS-APPELLANTS-
CROSS-APPELLEES:                                                JASON STEINBERG, White, Fleischner & Fino,
                                                                LLP, New York, NY.

        Cross appeals from a final judgment entered on October 28, 2010, in the United States
District Court for the Eastern District of New York (Roslynn R. Mauskopf, Judge).

        UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED and that
Avis’s appeal is DISMISSED for lack of standing.

                                                   Background

        Plaintiff-Appellee-Cross-Appellant Mark Noveck (“Noveck”) initiated this lawsuit in the
Supreme Court of New York, Queens County. The action was subsequently removed to the
District Court for the Eastern District of New York pursuant to 28 U.S.C. §§ 1441 and 1332.
Noveck asserted claims against Defendants-Appellants-Cross-Appellees PV Holdings Corporation,
Aesop Leasing L.P., Cendant Car Rental Group, and Avis Rent-A-Car System, LLC (collectively,
“Avis”), as well as against General Motors Corp. (“GM”), alleging strict liability in tort, negligence,
and breach of express and implied warranties, after he was ejected from the vehicle that Avis had
leased to him (which was designed and manufactured by GM) during a rollover accident. The
gravamen of Noveck’s complaint was that the vehicle, a 2005 Chevy Trailblazer, was defectively
designed because it was not equipped with “side curtain airbags,”1 an optional safety feature which,
Noveck alleged, might have prevented him from being ejected from the vehicle and sustaining
serious injuries.

        After GM was dismissed from the case pursuant to a Settlement Agreement it entered into
with Noveck, Avis moved for summary judgment, arguing that: (1) Noveck’s strict liability and
negligence claims were preempted by federal law; (2) Avis could not be held strictly liable because it
was a third-party beneficiary of the Settlement Agreement between Noveck and GM; and (3) Avis
could not be found liable on Noveck’s negligence claims because it owed no duty to equip the
vehicle with optional side curtain airbags.2


         1
              Side curtain airbags (also known as “window curtains” or “rollover curtain airbags”) are designed to drop
down from the roof line above the door frame to protect a vehicle’s occupants from intrusion, splintering glass, and
window ejection. The National Highway Traffic Safety Administration has stated that “[m]otor vehicles with a side
window curtain could reduce ejection through the front and rear side windows.” Nat’l Highway Traffic Safety Admin.,
Initiatives to Address the Mitigation of Vehicle Rollover (June 2003), available at
http://www.nhtsa.gov/DOT/NHTSA/Vehicle%20Safety/Studies%20&%20Reports/Associated%20Files/IPTRollover
MitigationReport.pdf, at 13 (last visited Nov. 16, 2011).

         2
          Avis did not move for summary judgment on Noveck’s express and implied warranty claims, but they were
subsequently dismissed as abandoned and are not before us on appeal.
                                                       2
        The District Court denied Avis’s motion with respect to federal preemption, but granted it
with respect to strict liability and negligence. With respect to strict liability, the District Court found
that Avis was an intended third-party beneficiary of the Settlement Agreement between Noveck and
GM, which expressly contemplated that Noveck would only proceed against Avis on claims “that
Avis was independently negligent.” With respect to negligence, the District Court held that, although
rental car agencies may, under some circumstances, owe a duty to equip and lease their vehicles with
optional safety equipment, Avis owed no such duty in this case, and therefore could not be found
negligent.

        We assume the parties’ familiarity with the remaining facts and procedural history of the
case.
                                              Avis’s Appeal

         Avis, the prevailing party, has appealed the District Court’s judgment “only to the extent that
the [District] Court denied Avis’[s] motion for summary judgment seeking a dismissal of [Noveck’s]
claims on the ground that [Noveck’s] claims of strict liability and negligence were preempted as a
matter of law.” Amended Notice of Appeal and Cross-Notice of Appeal, Noveck v. Gen. Motors Corp.,
et al., No. 07-cv-02948 (E.D.N.Y. Nov. 18, 2010), ECF No. 103. We dismiss Avis’s appeal for lack
of standing. “Ordinarily, a party to a lawsuit has no standing to appeal an order unless [it] can show
some basis for arguing that the challenged action causes [it] a cognizable injury, i.e., that [it] is
‘aggrieved’ by the order.” Spencer v. Casavilla, 44 F.3d 74, 78 (2d Cir. 1994). Here, Avis prevailed in
having all claims dismissed against it and is aggrieved only inasmuch as the District Court did not
dismiss the claims on its preferred grounds—namely, federal preemption. However, as an appellate
court, we “review[] judgments, not statements in opinions.” Black v. Cutter Labs., 351 U.S. 292, 297
(1956); see also California v. Rooney, 483 U.S. 307, 311 (1987) (“The fact that the [lower court] reached
its decision through analysis different than this Court might have used does not make it appropriate
for this Court to rewrite the [lower court’s] decision, or for the prevailing party to request us to
review it.”). Avis has not suggested any reason to believe that it is an “aggrieved party,” even after
this omission was pointed out in Noveck’s responsive brief on appeal. Because it is not aggrieved by
the judgment of the District Court, we dismiss Avis’s appeal for lack of standing.

                                        Noveck’s Cross-Appeal

          Noveck, who undoubtedly does have standing as an aggrieved party, cross-appeals from the
District Court’s judgment dismissing his claims. Although Noveck’s Amended Notice and Cross-
Notice of Appeal states that he appeals from the final judgment dismissing “all of [his] claims,”
Amended Notice and Cross-Notice of Appeal, Noveck, No. 07-cv-02948 (E.D.N.Y. Nov. 4, 2010),
ECF No. 102, he has addressed only the negligence claims in his briefs before this court. “Issues
not briefed on appeal are considered abandoned.” Ahmed v. Holder, 624 F.3d 150, 153 (2d Cir. 2010).
Therefore, we do not address the District Court’s judgment dismissing Noveck’s claim of strict
liability in tort.

        With respect to Noveck’s negligence claims, we affirm the District Court’s holding that Avis
did not have a specific duty to equip its 2005 Chevy Trailblazer vehicles with optional side curtain
airbags. As the New York Court of Appeals has explained, courts establish whether a specific duty
of care is owed “by balancing factors, including the reasonable expectations of parties and society
generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability,
                                                   3
disproportionate risk and reparation allocation, and public policies affecting the expansion or
limitation of new channels of liability.” Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2001)
(internal quotation marks omitted). We are aware of no authority, in New York or elsewhere,
holding that a rental car agency has a specific duty to equip its vehicles with optional safety features
and Noveck has not persuaded us that we should find such a duty as a matter of first impression
here.3

          Although we agree with the District Court that, on the record in this case, Avis did not
have a duty to equip the 2005 Trailblazers with side curtain airbags, we note that Avis was under a
general duty to exercise reasonable care to “provide. . . a vehicle in safe condition and good working
order.” Betancourt v. Manhattan Ford Lincoln Mercury, 195 A.D.2d 247 (1st Dep’t 1994) (finding that
rental car agency breached its duty to provide a vehicle in safe condition and good working order,
where the vehicle had a history of overheating as the result of leaking engine coolant and the agency
failed to rectify the problem despite it being reported to it on two prior occasions); see generally
Restatement (Second) of Torts (“Restatement”) § 408 (1965) (“One who leases a chattel as safe for
immediate use is subject to liability . . . if the lessor fails to exercise reasonable care to make it safe
for such use or to disclose its actual condition to those who may be expected to use it.”).4 This
general duty includes a “duty to inspect for and to discover such defects as a reasonable physical
inspection would disclose.” Naples v. City of New York, 34 A.D.2d 577, 578 (2d Dep’t 1970)
(addressing retailers of goods manufactured by others); see also Restatement § 408 (explaining duty to
inspect). For substantially the reasons expressed by the District Court, see Noveck v. PV Holdings
Corp., 742 F. Supp. 2d 284, 298-304 (E.D.N.Y. 2010), we conclude that, based on the record in this
case, Avis cannot be held liable for breaching this more general duty.

        Under § 408 of the Restatement (Second) of Torts, “[t]he minuteness of the inspection
required [of a lessor of chattel] varies with the danger which will be likely to result if the chattel is
defective, the source from which the lessor has obtained the chattel, and the length of time during
which it has been in the lessor’s possession and use.” Restatement § 408 cmt. a. Where, as here, a
lessor purchases its chattel from a maker that “has a high reputation for the quality of [its] product,”
the lessor “may to a large extent rely upon the article as being well made, and is required to make
only such inspections as any purchaser from such a maker should make before using it.” Id.
Relevant to our discussion here, the Reporter’s Notes provide the following illustration:



         3
            To support his argument that Avis owed a duty to equip the 2005 Trailblazer with side curtain airbags,
Noveck relied on the affidavits of two purported experts. However, the District Court rejected the testimony of these
witnesses under Federal Rule of Civil Procedure 56(e) and Federal Rule of Evidence 702. Neither of Noveck’s experts
had any experience in the rental car industry, and therefore neither could opine on standard industry practices and
customs. Instead, they offered conclusory opinions that Avis had a duty to research and determine the safety of the
2005 Chevy Trailblazer and to order the optional side curtain airbags. The District Court therefore did not abuse its
discretion in rejecting the opinions of these purported experts. In any event, having reviewed their affidavits, we find
them unhelpful in balancing the factors set out in Hamilton.

         4
            Although New York courts have not expressly adopted this section of the Restatement (Second), we find it
persuasive inasmuch as it is consistent with New York law. See 86 N.Y. Jur. 2d, Products Liability § 131; see also Gilbert v.
Barouch, 10 A.D.2d 984, 985 (2d Dep’t 1960) (addressing liability of dealers); Morrissey v. Mazzio, 249 A.D. 788, 788 (2d
Dep’t 1936) (same).
                                                          4
                The A Company makes a business of letting out automobiles to be
                driven by the lessees for long or short trips. It buys an automobile from
                the X Company, whose cars have a high reputation. The A Company
                is required to make such an inspection as is necessary to check up any
                slips which may have escaped the inspection of the X Company.

Id. Illustration 1. This is in accord with New York law. See 86 N.Y. Jur. 2d, Products Liability § 131
(“A dealer in new motor vehicles manufactured by a manufacturer of national reputation is not
under a duty to inspect such a vehicle to discover latent defects, nor is the dealer liable for an injury
resulting from such a defect that was unknown to the dealer . . . .”); see generally Krumpek v. Millfeld
Trading Co., 272 A.D.2d 879, 880 (4th Dep’t 2000) (“A vendor who purchases products from a
reputable source of supply has reasonable grounds for believing the products to be free from defects
. . . .”); Morrissey, 249 A.D. at 788 (affirming dismissal of complaint against dealers of allegedly
defective automobile because they “are merely dealers in automobiles manufactured by a
manufacturer of national reputation”).

         Applying these principles to the instant case, Avis purchased the 2005 Trailblazers new from
GM, an indisputably reputable manufacturer. Under the circumstances, Avis was entitled to rely in
large measure on GM’s reputation in assuming that the vehicles were not defectively designed, even
absent the side curtain airbags. Though the result might be different if it were obvious upon
inspection that, without side curtain airbags, the 2005 Trailblazer was defectively designed, Noveck
failed to adduce sufficient evidence to put this question to a jury, even under the standard applicable
at summary judgment. He argued that Avis should have known that the 2005 Trailblazers were
defective because the National Highway Traffic Safety Administration had previously given the 2001
4x2 Chevy Blazer its lowest rollover resistance rating, and that this rating had been reported by the
Daily News in New York City. We agree with the District Court that these reports, which related to
a completely different model and year than those at issue in this case, did not create a genuine issue
of material fact as to whether Avis knew or should have known that, absent side curtain airbags, the
2005 Chevy Trailblazer was a defective product. Noveck also cannot rely on the affidavits of his
purported experts because, as discussed above, see note 3, ante, they were properly excluded by the
District Court.

       In sum, we hold that Avis did not have a specific duty to equip the 2005 Trailblazer with
optional side curtain airbags, and that, based on the record in this case, its failure to do so was not a
breach of its general duty to exercise reasonable care to ensure the safety of the its vehicles.

                                              Conclusion

        We have considered all of Noveck’s arguments on appeal and find them to be without merit.
In addition, we conclude that Avis does not have standing to appeal the final judgment in its favor.
Accordingly, for the reasons stated above, we AFFIRM the judgment of the District Court and
DISMISS Avis’s appeal.

                                                         FOR THE COURT,
                                                         Catherine O’Hagan Wolfe, Clerk of Court




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