Opinion
610339/2015
07-30-2019
Erik JOHNSON, Plaintiff, v. APPLE INC. and CPR Cell Phone Repair, Defendants.
Mike Della, Esq., Gruenberg Kelly Della, 700 Koehler Avenue, Ronkonkoma, New York 11779 William J. McDonald, Esq., Campolo, Middleton & McCormick, LLP, 4175 Veterans Memorial Hwy, Suite 400, Ronkonkoma, New York 11779, For plaintiff Thomas M. Crispi, Esq. and Katia Asche, Esq., Schiff Hardin LLP, 666 Fifth Avenue Suite 1700, New York, NY 10103, For CPR Cell Phone Repair
Mike Della, Esq., Gruenberg Kelly Della, 700 Koehler Avenue, Ronkonkoma, New York 11779
William J. McDonald, Esq., Campolo, Middleton & McCormick, LLP, 4175 Veterans Memorial Hwy, Suite 400, Ronkonkoma, New York 11779, For plaintiff
Thomas M. Crispi, Esq. and Katia Asche, Esq., Schiff Hardin LLP, 666 Fifth Avenue Suite 1700, New York, NY 10103, For CPR Cell Phone Repair
Carmen Victoria St. George, J.
The following papers were read upon these motions:
Notice of Motion/Order to Show Cause 20-38; 59-82; 100-113
Answering Papers 83-85; 88-91
Reply 92-95
Briefs: Plaintiff's/Petitioner's
Defendant's/Respondent's
Defendant Apple Inc. (Apple) and defendant CPR Cell Phone Repair (CPR) each move for summary judgment dismissal of the causes of action alleged against them in the complaint. CPR opposes Apple's summary judgment motion, and plaintiff opposes Apple's motion and CPR's cross-motion.
Apple's summary judgment is denominated as Sequence 002 and CPR's cross-motion for summary judgment motion is denominated as Sequence 005. Apple also seeks summary judgment dismissal of any cross-claims made against it by CPR, to the extent they exist. Based upon the submitted papers, it appears that CPR may never have served its amended answer as directed by the Court's September 13, 2016 Order (Baisley, J.); therefore, there are no cross-claims asserted against Apple, and in any event, CPR does not oppose Apple's request for dismissal of any cross-claims.
Background
The Incident
It is undisputed that plaintiff suffered burns on his left inner thigh, among other alleged injuries, when his Apple iPhone 5c experienced a thermal event on February 14, 2015. The subject cellular telephone (the phone) was in his left pants pocket when, according to plaintiff's deposition testimony, he "heard the phone pop, and it started to get on fire, burning;" "[i]t started to instant burn... instantly burned my leg. And I started jumping up and down, asking my brother for help. And then I ended up ripping the pants off to get the phone away from me." The incident occurred on a public street in New Jersey, after plaintiff had parked his car near a funeral home where he intended to attend a wake. Plaintiff was unable to attend the wake; instead, his brother drove plaintiff to a nearby hospital emergency department. Directly from that hospital, plaintiff was transferred to the burn unit of Staten Island University Hospital where plaintiff was treated for approximately ten (10) days before being discharged.
It is further undisputed that plaintiff purchased the phone in new condition on September 5, 2014, and he had it repaired twice for a cracked screen prior to February 14, 2015. The two screen repairs were made by CPR on or about January 17, 2015 and on or about January 20, 2015, the last repair having been made approximately three weeks prior to the incident giving rise to this action. CPR is not an authorized Apple-authorized service provider, and the replacement screens installed into plaintiff's phone were after-market parts not supplied by Apple.
The Pleadings
The complaint alleges three causes of action against Apple: breach of the warranties of merchantability and fitness (express and implied warranty), defective product (strict product liability), and negligent manufacture of the phone (negligent product liability). The complaint does not allege a specific design or manufacturing defect, nor does the complaint allege a failure to warn.
Apple served interrogatories rather than demanding that plaintiff serve a Bill of Particulars. In response to Apple's interrogatories, plaintiff alleges that the phone was defective because it was not labeled with warnings about explosions and overheating, and Apple was negligent in failing to "engineer a safe product; ... design a safe product; ...manufacture a safe product, [and in] fail[ing] to give any warnings of overheating, exploding, or otherwise heating of the apple (sic) device in question."
Regarding CPR, the complaint alleges a cause of action sounding in negligence. Specifically, plaintiff alleges that CPR "caused an unsafe and hazardous condition" with the phone when it repaired the phone's screen. The Bill of Particulars alleges that CPR was careless, reckless and negligent in the replacement/repair of the phone's screen, specifying, inter alia , that CPR failed to warn plaintiff about overheating and exploding, failed to effectively test the phone before giving it back to plaintiff, and failed to obey industry standards.
Summary Judgment Standard
On a motion for summary judgment, the moving party has the burden to establish "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Voss v. Netherlands Ins. Co. , 22 NY3d 728 [2014], quoting Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). If the moving party meets this burden, the burden then shifts to the non-moving party to "establish the existence of material issues of fact which require a trial of the action" ( Vega v. Restani Construction Corp. , 18 NY3d 499, 503 [2012] ).
Where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers ( Lee v. Second Ave. Village Partners, LLC , 100 AD3d 601 [2d Dept. 2012], citing Winegrad v. New York Univ. Med. Center , 64 NY2d 851, 852 [1985] ). The motion court is required to accept the opponents' contentions as true and resolve all reasonable inferences in the manner most favorable to the opponents, in this case the plaintiff ( Giraldo v. Twins Ambulette Serv., Inc. , 96 AD3d 903 [2d Dept. 2012] ). Further, "[t]he court's function on a motion for summary judgment is ‘to determine whether material factual issues exist, not to resolve such issues (citations omitted)’ " ( Ruiz v. Griffin , 71 AD3d 1112, 1115 [2d Dept. 2010], quoting Lopez v. Beltre , 59 AD3d 683, 685 [2d Dept. 2009] ).
Apple's Motion
Apple contends that it is entitled to summary judgment dismissal of the claims made against it because plaintiff's injuries were caused solely by a substantial modification that occurred after the phone left Apple's possession and control, and the phone did not leave Apple's possession and control with a loose screw inside it. It is the loose screw that Apple maintains caused the thermal event, when it punctured the phone's battery. Apple further contends that there is no design defect in the phone, but that the two third-party repairs made by CPR occasioned the loose screw. Furthermore, the warranty claims against Apple should be dismissed because Apple's written warranty excludes damage caused by unauthorized repairs, and it explicitly disclaims all implied warranties.
Apple also claims that plaintiff does not allege a failure to warn against it; however, if plaintiff did make such an allegation, Apple contends that it is entitled to summary judgment because Apple's advisement to consumers that failure to contact Apple or an Apple-authorized service center for repairs could result in fire, electric shock, injury or damage was adequate as a matter of law. Apple further maintains that it had no duty to warn CPR against misplacing a screw inside the phone.
In support of its motion, Apple submits, inter alia , plaintiff's deposition transcript, the affidavit of its expert, Donald J. Hoffmann, Ph.D, P.E., C.F.I., the deposition transcript of its director of safety engineering, a printed manufacturing record of the phone's condition when it left Apple's possession and control (Exhibit 10), CPR's deposition transcript, Apple's warranty, user guide, and x-rays of the phone taken after the subject incident . Oral argument of Apple's and CPR's motions was held on May 6, 2019.
There was a "non-destructive" inspection of the phone performed on June 5, 2015 attended by Apple's expert, Dr. Hoffmann. It appears that the inspection consisted of visual observation of the phone and x-raying of the phone's internal workings.
Product Liability Claims
Apple rests its contentions on plaintiff's testimony establishing that plaintiff had no problems with the phone until after the second repair performed by CPR, its manufacturing record/Exhibit 10 evidencing that the phone passed numerous quality control tests including an automated x-ray procedure referred to as "AXI," the testimony of its director of safety engineering, and the affidavit of its expert, Dr. Hoffmann, who posits that a loose screw visible in a post-incident x-ray of the phone impinged upon the battery, punctured it, and caused the thermal event.
"A product may be defective by reason of a manufacturing flaw, an improper design, or a failure to provide adequate warnings for the product's use" ( Gebo v. Black Clawson Co. , 92 NY2d 387, 392 [1998] ); see also Liriano v. Hobart Corporation , 92 NY2d 232 [1998] ).
"In strict products liability, a manufacturer, wholesaler, distributor, or retailer who sells a product in a defective condition is liable for injury which results from the use of the product ‘regardless of privity, foreseeability or the exercise of due care’ " ( Godoy v. Abamaster of Miami, Inc. , 302 AD2d 57, 60 [2d Dept. 2003], quoting Gebo , supra at 392).
"Manufacturing defects, by definition, are ‘imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process. A [defectively manufactured] product does not conform in some significant aspect to the intended design, nor does it conform to the great majority of products manufactured in accordance with that design’ [citation omitted]. Stated differently, a defectively manufactured product is flawed because it is mis-constructed without regard to whether the intended design of the manufacturer was safe or not. Such defects result from some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction. Common examples of manufacturing defects are the proverbial hairline fracture in the exploding bottle or the flawed piece of metal in the automobile steering column" ( Caprara v. Chrysler Corp. , 52 NY2d 114, 128-129 [1981] ; see also Pierre-Louis v. DeLonghi America, Inc. , 66 AD3d 859 [2d Dept. 2009] ).
Regarding design defects, "the proper standard to be applied should be whether the product as designed was ‘not reasonably safe’ — that is, whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner [internal citation omitted]" ( Voss v. Black & Decker Manufacturing Company , 59 NY2d 102, 108 [1983] ).
"But no manufacturer may be automatically held liable for all accidents caused or occasioned by the use of its product. While the manufacturer is under a nondelegable duty to design and produce a product that is not defective, that responsibility is gauged as of the time the product leaves the manufacturer's hands" ( Robinson v. Reed-Prentice Division of Package Machinery Company , 49 NY2d 471, 479 [1980] [internal citations omitted] ). "Substantial modifications of a product from its original condition by a third party which render a safe product defective are not the responsibility of the manufacturer" ( Id. ).
"A defendant moving for summary judgment based on substantial modification must establish entitlement to that defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in its favor. Primarily, the defendant must make the same showing required to prevail on any design defect claim: that the product was ‘not defective’ at the time it was manufactured and sold. Once this threshold showing has been made, the defendant must demonstrate that a post-sale modification rendered the otherwise ‘safe product defective’ and that the modification was the proximate cause of the plaintiff's injuries" ( Hoover v. New Holland North America, Inc. , 23 NY3d 41, 56 [2014] [internal citations omitted] ).
Apple has made this threshold showing by the submission of Exhibit 10 (the manufacturing record pertaining to the subject phone), its director of safety engineering's deposition transcript (Robert Pearson), the affidavit of its expert, Donald J. Hoffmann, and plaintiff's deposition transcript.
Upon oral argument of Apple's motion, neither plaintiff nor co-defendant CPR disputed the authenticity of Exhibit 10, and that issue was not raised in the opposition papers. Furthermore, to the extent that plaintiff and CPR maintained at oral argument that Apple cannot demonstrate that the phone "was in order" when it left the factory because the quality control x-rays taken of the subject phone before it left the factory are no longer available, citing Wagner v. Bradshaw (292 AD2d 84 [2d Dept. 2002] ), the Court does not find this argument persuasive.
In its papers and at oral argument, CPR raised the issue as to whether Exhibit 10 relates to the phone that is now in plaintiff's counsel's possession. CPR has since stipulated that the documents Apple provided in discovery show that plaintiff registered an iPhone 5c to an Apple ID associated with him, but CPR will not stipulate that the phone in counsel's possession is the one identified by Apple in its documents, or that the phone in counsel's possession is the one that CPR repaired. Plaintiff has acknowledged that there was a typographical error in the Bill of Particulars that led to the foregoing issue raised by CPR. There has not yet been any "destructive" inspection of the phone to take it apart and determine if it matches Apple's records; however, the Court does not find that such an inspection is material to the determination of Apple's motion or CPR's cross-motion. If the phone in plaintiff's counsel's possession is not a genuine iPhone 5c, then Apple is clearly entitled to summary judgment, and CPR does not deny having twice repaired a phone for plaintiff. CPR's refusal to stipulate that the phone in plaintiff's counsel's possession is the one that CPR twice repaired rings hollow because CPR never documented the phone's identifying numerals (serial number or "IMEI") on its own repair invoices that it has submitted to this Court; therefore, CPR can never prove or disprove any claim in this regard.
As explained by Mr. Pearson, the x-rays of the iPhones taken before they enter the stream of commerce are to ensure that there are no loose materials or pieces of construction material inside the phone that may cause a problem. The automated test system ensures that all the required components are present, and that there is nothing extra inside the device. A computer, known as an automated vision system (AXI) evaluates the x-rays; no human interprets the images. The system is programmed to detect items smaller than the size of a screw and testing of the system with deliberately injected missing screws, misaligned parts and extra parts were able to be accurately distinguished by AXI. Further according to Mr. Pearson, the AXI system can detect "even a slightly loose screw" inside a phone.
The AXI x-ray images are not preserved according to Mr. Pearson because "Apple makes hundreds of millions of phones. We maintain test records in terms of pass/fail, not the raw data." The original images for the phone in this case are no longer available according to Mr. Pearson.
Wagner involved medical and diagnostic tests performed upon an alleged injured person, not a quality control x-ray of an inanimate object. The Wagner court also referred to CPLR 4532-a in its decision, which provides for the admissibility of "graphic, numerical, symbolic or pictorial representation of the results of a medical or diagnostic procedure or test." The issue in that case was whether plaintiff was properly permitted to testify as to the contents of an inadmissible written report interpreting magnetic resonance imaging (MRI) films that were not in evidence. Here, there is no such medical or diagnostic test implication, and this Court declines to extend the Wagner holding to this type of x-ray. Furthermore, there is no evidence that Apple, which "makes hundreds of millions of phones" according to Mr. Pearson, "procured" the loss or destruction of the quality control x-ray in bad faith. His testimony establishes that it was simply part of the overall manufacturing process that the report of the numerous tests performed on each individual phone, not the raw data, would be saved. Accordingly, the secondary evidence consisting of Exhibit 10/manufacturing report is not absolutely barred from this Court's consideration upon the instant motion (see Schozer v. William Penn Life Insurance Company of New York , 84 NY2d 639 [1994] ). Thus, this Court can consider Exhibit 10 as the manufacturing record for the iPhone registered to plaintiff, and the Court can consider any opinion evidence that relies, in part, on it.
Mr. Pearson viewed the x-rays taken of the phone post-incident. He testified that he saw the loose screw inside the phone, and that its clearly visible external threads "looked undamaged." He also identified an empty socket about an inch away from where the loose screw was visible on the x-ray. He could not determine the integrity of the threads inside the empty socket hole by viewing the post-incident x-rays; a CT scan would be required.
In any event, Mr. Pearson based his statement that the subject phone did not leave Apple's factory with the screw in the location depicted in the post-incident x-ray on the submitted manufacturing record and his knowledge of the AXI system.
Mr. Pearson also testified that if the screw in question pierced the exterior of the phone's batter, a thermal event could occur. When asked how long it would take for such an event to occur, Mr. Pearson testified that the screw would have "to work its way through the outer protective layers of the pouch and cell and then impinge upon the anode and the cathode. So it would likely take some amount of time; however, it could potentially happen almost immediately. It depends on exactly where the screw is, how much pressure is applied to it."
Plaintiff's own testimony establishes that he apparently experienced no problems with the phone from the day he purchased it on September 5, 2014 through on or about January 17, 2015, the day of the first screen repair. Plaintiff did not experience any problem with the phone from the time of the first repair until the time of the second screen repair on or about January 20, 2015. It was only approximately three weeks after the second screen repair that the subject incident occurred.
Exhibit 10 shows that the subject phone was tested by Apple on August 16, 2014.
Dr. Hoffmann, a Senior Scientist at Safety Engineering Laboratories, Inc., states that a non-destructive inspection of the subject iPhone was conducted on June 5, 2015. The phone "had a cracked screen and was partially raised out of its black Spigen Tough Armor case. Thermal damage was apparent on the left side of the iPhone, with the most significant damage localized to a small area approximately at the midpoint of the device. This consisted of melting to the plastic case in the location where the iPhone's lithium ion battery appeared to have vented. Little to no damage was observed to the right or back sides of the iPhone case." X-ray imaging was used on June 5, 2015 to see the internal construction and condition of the phone. According to Dr. Hoffmann, the internal damage was "localized to a small region along the left edge of the battery pack...consistent with the pack having vented at this location." The x-rays also showed a screw partially embedded in the battery along the left edge of the battery pack. Dr. Hoffmann states in his affidavit that "[t]he location, orientation, and size of the screw indicate that it was significantly out of place." Also, one of the phone's threaded screw holes in the upper right corner of the iPhone was missing its screw. The loose screw embedded in the battery pack is consistent with the 1.7-millimeter Phillips head screw that belonged in that empty hole.
Having examined the phone, the deposition transcripts, Bills of Particulars, Apple's responses to plaintiff's discovery demands, including design schematics and manufacturing documents for the iPhone 5c, plus his education, training and experience, Mr. Hoffman opines that there was neither a manufacturing nor a design defect in the subject phone when it left Apple's factory. The AXI system detects anomalies much smaller than the smallest part or screw in the iPhone 5c and phones with abnormalities are identified and removed from the line before packaging and shipping. Based upon the fact that the subject phone passed its inspection by the AXI system, it met Apple's criteria; therefore, that misplaced screw visible in the post-incident x-rays taken on June 5, 2015 was not in that position when the subject phone left the factory.
As to the design of the phone, Dr. Hoffman states that the misplaced screw, when it is in its proper position, is intended to secure the front panel assembly cable bracket to the phone's logic board, and that screw must be removed and replaced during any screen repair. Dr. Hoffman further states that the design of the iPhone 5c is such that there is insufficient space between the screw head and the front panel assembly for the misplaced screw to have moved on its own. Dr. Hoffman also states that the screw did not move during or because of the thermal event; the force of the event was insufficient to have unseated the screw, and the thermal event did not create enough space for the screw to move.
According to Mr. Pearson, a thermal event occurs when excessive heat is released from the battery; lithium ion batteries, such as the one in the subject phone, do not cause an explosion because the type of energy released from them is very different.
Notably, Dr. Hoffmann's visual inspection of the subject phone on June 5, 2016 demonstrated that the subject phone was mainly intact, thereby corroborating Mr. Pearson's testimony that a thermal event is not an explosion.
As to the iPhone 5c battery, Dr. Hoffman states that the battery was tested and certified to all safety standards, including four different standards that he specifies in his affidavit, that "demonstrate that the iPhone 5c is safe when operated in its anticipated application and under normal conditions of use."
Dr. Hoffman further explains that a total of sixteen (16) screws must be removed and replaced during a screen repair. This number is not disputed by any of the parties to this litigation. Fourteen (14) of the screws are internal to the phone, "including the 1.7 mm Phillips head screw that punctured the battery cell pack in Plaintiff's device." Dr. Hoffman did state that it is possible during screen replacement to drop a screw into a crevice adjacent to the battery pack without affecting the ability to reassemble the phone or its functionality.
Finally, Dr. Hoffman opined that the subject incident occurred as the result of the screw puncturing the phone's battery; that the subject phone passed its AXI testing thereby precluding any possibility that it left Apple's factory with a misaligned, improperly positioned, extraneous, or even slightly loose screw in its cavity; that the design of the iPhone 5c does not permit the subject screw to unseat itself and migrate; that Apple's compliance with all applicable safety standards and certifications demonstrate the safety of the phone when operated under normal conditions of use, and that the two screen replacements performed by CPR prior to the thermal event resulted in the subject screw being dropped into the cavity of the phone, adjacent to the battery.
Based upon the foregoing, Apple has established that the product was ‘not defective’ at the time it left Apple's possession and control in August 2014. Having made this threshold showing as to the absence of design and manufacturing defects, this Court must determine whether Apple has demonstrated, prima facie , that a post-sale modification rendered its otherwise safe product defective, and that the modification was the proximate cause of the plaintiff's injuries.
The substantial modification defense to a products liability action may be established by proof that an after-market part was substituted for a factory-equipped part in a machine/device that rendered the machine/device unsafe and the proximate cause of a plaintiff's injuries ( Bauerlein v. Salvation Army , 74 AD3d 851 [2d Dept. 2010] [elevette's cables replaced by building's elevator maintenance contractor and attached with prohibited bolts resulted in summary judgment in favor of elevette's manufacturer]; Vega v. Stimsonite Corporation , 11 AD3d 451 [2d Dept. 2004] [manufacturer-installed components on machine removed and replaced with store-bought parts]; Fraser v. Stihl Inc. , 286 AD2d 661 [2d Dept. 2001] [plaintiff's employer replaced saw blade supplied by manufacturer with carbide-tipped blade, causing injury] ), or where there is an improper third-party repair ( Bauerlein, supra ; Pichardo v. C.S. Brown Company, Inc. , 35 AD3d 303 [1st Dept. 2006] [snowblower improperly repaired after it left manufacturer's control] ).
CPR's deposition testimony that establishes the two screen repairs made on plaintiff's phone in January 2015 involved far more than simply removing the screen and placing a new screen on the device. CPR's testimony dovetails with Dr. Hoffman's explanation of screen repair on an iPhone 5c, which includes the removal of 16 screws, 14 of which are inside the phone's cavity, and involve connections to various internal components of the phone via those screws, including connection to the phone's logic board. CPR's witness, Nigan Vyas, himself testified that replacement of the screen on the phone is not purely cosmetic: "[w]hen the screen breaks, it could cause loss and function of the screen as well, so it's not just cosmetic."
Furthermore, it is undisputed that CPR is not an Apple-authorized service center. If CPR needs to consult a manual for a particular phone, including an iPhone 5c, CPR uses an online manual called "ifixit.com," which Vyas acknowledged is not an Apple manual. Mr. Vyas also acknowledged that he has not received any specific training from CPR corporate concerning the iPhone 5c. CPR does not use Apple replacement parts. Mr. Vyas testified that the screen used in the subject phone was sourced from a company called Wholesale Gadget Parts. After a repair is made by CPR, the only testing involved is to turn the phone on and test the functionality of the phone's buttons; there is no x-ray or other testing employed by CPR to ensure that loose parts are not left inside the phone's cavity. According to Mr. Vyas, ensuring that the correct screws go back into the correct places is left up to the diligence of the person performing the repairs. Mr. Vyas acknowledged that, if the screen is able to close, he would not know if there was a loose screw or a misplaced screw inside the phone. Mr. Vyas did not know whether he or one of two other technicians in his store performed the repairs on plaintiff's phone, and he did not know if whoever performed the screen replacements left a screw in any of the crevices inside the phone.
Accordingly, this Court determines that Apple has established its prima facie entitlement to summary judgment as a matter of law on the causes of action sounding in products liability by demonstrating that the screen replacement was a substantial modification to the subject phone, and that the repair, not Apple's design or manufacture of the subject phone, was the sole proximate cause of the thermal event that caused plaintiff's alleged injuries.
Warranty Claims
Apple's submitted warranty, user guide and iPhone information documents establish its prima facie entitlement to summary judgment on the warranty claims made in the complaint. Breach of an express warranty requires proof "that there was an ‘affirmation of fact or promise by the seller, the natural tendency of which [was] to induce the buyer to purchase’ and that the warranty was relied upon" ( Schimmenti v. Ply Gem Industries, Inc. , 156 AD2d 658, 659 [1989], quoting Friedman v. Medtronic, Inc. , 42 AD2d 185, 190 [2d Dept. 1973] ).There is no such allegation or evidence presented in this matter.
A claim for breach of an implied warranty of merchantability cannot stand when the product is not defective and is fit for the purpose for which it was intended. A Uniform Commercial Code (UCC) breach of implied warranty claim stemming from an allegedly defective product "requires an inquiry only into whether the product in question was ‘fit for the ordinary purposes for which such goods are used’ ( UCC 2-314 [2] [c] ). [This] inquiry focuses on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners. The cause of action is one involving true ‘strict’ liability, since recovery may be had upon a showing that the product was not minimally safe for its expected purpose..." ( Denny v. Ford Motor Company , 87 NY2d 248, 258-259 [1995] ). Here, Apple has demonstrated that the phone was safe for its expected purpose.
The language of the Apple warranty also expressly excludes damage caused by unauthorized third-party repairs. It states that opening the product may cause damage not covered by the warranty, including fire, electric shock, injury, and damage to the iPhone or other property, and that only Apple or an Apple-authorized provider should perform service on the phone. Furthermore, Apple disclaims the implied warranties of merchantability and of fitness for a particular purpose in conformance with New York's Uniform Commercial Code § 2-316 permitting a seller to exclude the implied warranty of merchantability provided the language is explicit and the writing is conspicuous. Since Apple has made a prima facie showing that the phone was not defective in either manufacturing and design, the warranty claims must also fail.
Failure to Warn
As noted, the complaint does not allege a claim sounding in failure to warn. It is only through the plaintiff's responses to Apple's interrogatories that plaintiff alleges that the phone was defective because it was not labeled with warnings about explosions and overheating, and Apple was negligent in failing to "engineer a safe product; ... design a safe product; .. manufacture a safe product, [and in] fail[ing] to give any warnings of overheating, exploding, or otherwise heating of the apple (sic) device in question."
"Although the adequacy of a warning is usually a question of fact, ‘in a proper case the court can decide as a matter of law that there is no duty to warn or that the duty has been discharged as a matter of law’ " ( Torres v. City of New York , 127 AD3d 1163, 1167 [2d Dept. 2015], quoting Alessandrini v. Weyerhouser Co. , 20 AD2d 996, 996 [4th Dept. 1994]).
Here, the Apple manual submitted upon the instant motion clearly specifies that Apple or an Apple-authorized user be contacted for service and/or repairs to the phone; therefore, any duty to warn that Apple may have had is satisfied by this language ( Stimsonite , supra ). Moreover, the User Manual contains an entire section entitled "Safety, Handling & Support," wherein warnings about handling the phone with care, repairing the phone by Apple or an Apple Authorized Service provider, and battery replacement explicitly warn of the danger of overheating, fire, electric shock, injury and damage (Exhibit 13, Manual, pp. 168-171). The fact that plaintiff admitted that he did not read the Manual or any of the other Apple documents attendant to the purchase of his phone either in print or online does not cast liability upon Apple.
Furthermore, it is not alleged that Apple had a duty to warn CPR of the dangers of puncturing a battery, for example, especially in light of Vyas' testimony that he had repaired numerous phones, including the iPhone 5c, over the years that he has been in business, and recognized the risks of compromising the battery (see Payne v. Quality Nozzle Co. , 227 AD2d 603 [2d Dept. 1996] ). Moreover, the ifixit.com website upon which Mr. Vyas relied to repair the subject phone warned against accidental puncture of an iPhone battery; the message on the battery states that service should be performed only by an authorized service provider, and the battery also bears the printed message that there is a potential for fire or burning if the battery is disassembled, punctured, crushed, heated or burned.
Based upon the foregoing, Apple has established its prima facie entitlement to summary judgment as a matter of law as to all the causes of action asserted against it.
Plaintiff's opposition fails to raise a triable issue of fact sufficient to defeat Apple's motion. As discussed herein, the subject phone in plaintiff's counsel's possession has not been disassembled in what is referred to as a "destructive inspection." The Court does not agree with plaintiff's counsel's contention that the opinion as to the cause of the incident proffered by Dr. Hoffmann is speculative without a destructive examination of the phone in question. The post-incident x-ray examination performed (Apple Exhibit 15) quite clearly depicts a screw out of place, resting at approximately a forty-five-degree (45ø) angle, even to the untrained eye. Moreover, plaintiff's counsel's excuse that "no agreement could be reached [as to] when, where and how to do this" destructive examination is unavailing in light of plaintiff's counsel's letter dated December 7, 2017 stating that it was plaintiff's intention to certify this matter as ready for trial (Apple Reply, Exhibit 19).
Also, as discussed above, the Court is not of the opinion that the unavailability of the quality control x-ray precludes Apple from meeting its prima facie burden.
Plaintiff's further contention that a cracked screen is not a substantial modification is without merit given CPR's testimony that Mr. Vyas did not consider the replacement of the screen to be merely cosmetic given the number of internal screws involved and their connection to the functionality of the phone itself, including to the phone's logic board.
In support of his contentions, plaintiff submits the affidavit and curriculum vitae (CV) of Carl J. Abraham, a professional engineer. He lists in his credentials the designations "MS, PhD, DSc, JD;" however, it is unknown in what fields he earned a master's degree, a PhD, or a DSc. The expert's affidavit lists, inter alia , his areas of expertise, professional experience, patents, presentations, and a short biography. It appears from his CV that the vast majority of his expertise lies in the area of sports and recreation issues, designing safe headgear for athletes, and head and brain injuries. Next to the heading "Professional Experience" appears "(Sports & Recreation)." He cites "experience in the areas of fires and explosions" (CV p. 25.), but the items listed lack specificity. For example, Item x reads, "iPhones, cell phones leaking, catching on fire and explosions." It is unknown what this "experience" encompasses. None of his patents involve iPhones, nor would they be expected to include same. None of his registration certificates for "battery warning" relate specifically to the type of battery in the subject iPhone, plus those certificates date back to 1986, 1989, and 1995, long before the phone at issue was invented. Also, the presentations and papers listed as having been written and/or presented during 1961-1965 are unavailing as they are quite dated (CV p. 31). None of the areas of technical expertise listed on his CV relate to cellular phones or their batteries, let alone Apple products. Moreover, his listed experience in "product development, manufacturing, packaging, standards, warnings and instructions" is vague, as is his listing that he has "published and presented papers in the areas of fires, explosions (gas, bottle, battery)..."
Mr. Abraham's annexed biography touts his innovations in sports, recreation and attendant products that reduce serious injuries to athletes. While Mr. Abraham's innovations and inventions of various types of safer athletic headgear are commendable, this Court does not consider his expertise as germane to the issues in this case.
The substance of the affidavit itself refers to news items about lithium ion batteries in general and about Apple products. Anecdotal accounts are not science. The affidavit smacks of Mr. Abraham's thoughts that do not appear to be based upon the facts of this case. In fact, Mr. Abraham discusses other companies like Sony, ACR, Lenovo and HP in his discussion of the news items.
The Court also notes that Mr. Abraham incorrectly states in his affidavit that, "CPR Amityville replaced the glass and checked out the operation of the phone and all of its applications on September 22, 2016" (Affidavit, p. 8), and that, "[o]n September 22, 2016, Erik Johnson had the fractured glass in the subject iPhone 5c repaired at CPR Cell Phone Repair in Amityville..." It is unknown to this Court where Mr. Abraham obtained this date, as it does not appear to have any material relation to this case.
The Court also notes that Mr. Abraham opines that "the Apple's iPhone 5" is or was defectively designed, manufactured, and bore defective warnings." Importantly, the phone involved in this matter is not the iPhone 5, but the iPhone 5c.
Also, in the section of his affidavit entitled "Background to the above captioned incident," Mr. Abraham does not dispute that the x-rays taken post-incident show the 1.7 mm screw that penetrated the battery. In fact, he states in paragraph 12 of his affidavit that "[t]he x-rays showed that there was a 1.7 mm Phillip head screw that penetrated the devices (sic) lithium-battery. As a result, the negative charged current collector or its electrode and positively charged current connector of the battery can come in contact with one another. This would result in a short causing heating and eventually, the release of stored energy..." This explanation comports with Apple's expert's opinion as to how the thermal event occurred in this case.
Mr. Abraham's statement that, "[i]f unwanted materials such as scraps of metal end up inside the battery during production, they can short circuit the battery at any time and set off a thermal runaway," (Affidavit, p. 7) is nothing more than pure speculation, especially in light of his acknowledgement that the 1.7 mm screw is seen impinging on the battery. There is no evidence supporting even a suggestion that foreign materials were inside the battery. Furthermore, that statement ignores his own description of the post-incident x-rays showing the screw, with its threads undamaged, impinging on the phone's battery. In fact, Mr. Abraham fails to address the fact that Apple's expert and safety engineer testified that the threads on the misplaced screw were intact and undamaged, thereby indicating that the screw was not forced out of its hole during the "explosion" also posited by Mr. Abraham. Likewise, Mr. Abraham fails to address Dr. Hoffmann's statements about the lack of sufficient space for a screw to migrate inside the iPhone 5c.
Contrary to Mr. Abraham's claims made about Apple's manufacturing process, there is documentation relating to the placement of the screws and other components inside the subject phone before it left the factory, namely Apple's Exhibit 10, which is the subject phone's manufacturing record. Mr. Abraham does not specifically address Exhibit 10/the manufacturing record annexed to Apple's motion for summary judgment.
Mr. Abraham's claim that "warnings in a manual for the iPhone are essentially useless with reference to consumers," and that "Apple knew or should have known that the consumer will not read the 180-page User Guide that may come with the purchase of the iPhone5" is spurious. The manual is intended for consumers, contains specific warnings and advises that repairs can only be made by Apple or an Apple-authorized service provider. The fact that plaintiff in this case did not read it does not raise a question of fact, and Mr. Abraham cannot excuse plaintiff's failure to read the Guide. The fact that Apple, and likely every other manufacturer of cellular phones, is aware that people break or crack their screens with some regularity does not raise any question of fact. Apple's manual and other documentation provided to the consumer clearly states that repairs, which obviously include screen repairs, are to be done by Apple or its authorized service providers, not by an unauthorized party who uses after-market parts and who has not been trained by Apple.
Also fatal to Mr. Abraham's affidavit is the fact that nowhere does he specifically mention what, if anything of an evidentiary nature, such as deposition testimony, he reviewed in arriving at his opinions, aside from what he refers to as "the documents submitted by the plaintiffs and literature regarding the subject product," "the documents involved in the subject litigation," and "the 770+ pages of documents" supplied by Apple during discovery. The section in his affidavit entitled "Apple Inc.'s responses to plaintiff's notice for discovery and inspection" is wholly improper. Mr. Abraham states therein that he has "more than enough experience to know when a question is unanswerable, overbroad, unduly and disproportionately burdensome It is difficult for the undersigned to believe that the individuals involved in defending Apple could, under any circumstances, believe those replies are truthful. If Apple has nothing to hide, they should be forthcoming with a truthful reply..." These gratuitous accusations are completely unrelated to the issue for which he was presumably retained, and they fail to raise an issue of fact.
Additionally, although plaintiff's counsel claims for the first time in opposition claims that the 5c was defectively designed because the phone should not have been able to function unless all the screws were properly re-assembled (Affirmation, 35), Mr. Abraham does not address plaintiff's counsel's claim, and Mr. Abraham offers no alternative to using screws in the iPhone. Accordingly, there is no scientific evidence supporting counsel's claim, rendering it purely speculative.
Nothing in plaintiff's opposition raises a triable issue of fact sufficient to defeat Apple's summary judgment motion.
CPR's Opposition and Cross-Motion
In support of its opposition and cross-motion, CPR adopts the exhibits submitted by Apple in its summary judgment motion, including Exhibit 10, and CPR also submits plaintiff's deposition transcript, Dr. Hoffmann's affidavit, Mr. Pearson's deposition transcript, Mr. Vyas' deposition transcript (CPR), and Mr. Abraham's affidavit.
Mr. Abraham's affidavit, as discussed, does not raise a triable issue of fact because it does not appear that Mr. Abraham has relevant knowledge about the scientific issues in this case, and, even if he did, his affidavit ignores the evidence. His "opinions" are nothing more than speculation.
Furthermore, this Court has determined that Apple has established that the subject phone left its possession and control without defect. Plaintiff's testimony, as noted, establishes that plaintiff had no problem with the subject phone until after the second unauthorized repair performed by CPR, which occurred approximately six months after the subject phone passed the Apple factory inspection in august 2014. Neither CPR, nor plaintiff for that matter, has offered any evidence that the subject phone left Apple's possession or control in a defectively designed or manufactured state.
Most important is Mr. Vyas' own testimony that he could not state one way or another whether he or another technician working at CPR left a loose screw in the crevice of the subject phone. That testimony alone creates a question of fact as to the cause of action for negligent repair alleged against CPR such that CPR is unable to even establish its prima facie entitlement to summary judgment as a matter of law.
Accordingly, based upon the totality of the submissions to this Court, CPR has not only failed to raise a triable issue of fact in its opposition to Apple's summary judgment motion, but CPR has failed to sustain its prima facie burden on its cross-motion for summary judgment for the reasons discussed.
Apple's summary judgment motion is granted (Sequence 002), and the causes of action contained in the complaint as alleged against Apple are dismissed.
CPR's cross-motion for summary judgment is denied (Sequence 005).
The foregoing constitutes the Decision and Order of this Court.