Menear v. Kwik Fill, 2019 N.Y. App. Div. LEXIS 5953 (4th Dept. 2019)

Insufficient evidence submitted to raise an issue of fact over an allegedly defective fuel nozzle.

The plaintiff, a limousine driver, was driving a J4500 model Motor Coach bus. In order to refill the fuel tank, she pulled up to a diesel fuel dispenser at a Kwik Fill gas station. She put the nozzle of the pump into the fuel tank, engaged the hold-open clip located on the nozzle, and waited while the bus refueled. However, fuel spilled out of the filler neck, i.e., the part that connects the gas cap to the fuel tank. Once the plaintiff removed the nozzle, diesel fuel ejected from the fuel tank, spraying her body, face and eyes. The plaintiff brought various claims against many entities, including a strict product liability claim against the manufacturer of the nozzle, Husky Corporation. Husky filed a motion for summary judgment, arguing there was no genuine issue of material fact as to the nozzle being defectively designed or manufactured based on the evidence submitted: an expert affidavit and deposition testimony of its president. Notably, the expert had examined the nozzle, determined that its automatic shut-off was functional, and opined that the nozzle was not unreasonably dangerous for its intended purpose and was not defective. Further, Husky’s president testified that its manufacturing processes complied with industry standards and that every Husky nozzle was tested prior to leaving the factory. The Appellate Division found that the non-movants (plaintiff and co-defendants) failed to establish a genuine issue of fact as to the nozzle being defective because the expert affidavit submitted by Motor Coach in opposition to Husky’s motion was insufficient. Although Motor Coach’s expert opined that the accident was caused by a nozzle malfunction, his opinion was deemed “mere speculation” since he failed to identify any particular defect with the nozzle and he did not even inspect the nozzle personally. Also, Motor Coach’s vice president of engineering testified that it was aware of this problem with diesel fuel ejecting from the filler necks due to issues with venting and pressurization for this model bus as it had happened several times prior to this incident. Because Motor Coach’s expert failed to exclude the improper venting and pressurization of the fuel tank as a potential cause of the plaintiff’s accident, he failed to raise an issue of fact in that regard.


Case Law Alerts, 4th Quarter, October 2019

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