Seymour v Sears Roebuck & Co.

[*1] Seymour v Sears Roebuck & Co. 2006 NY Slip Op 52094(U) [13 Misc 3d 1232(A)] Decided on October 26, 2006 Supreme Court, Onondaga County Carni, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 26, 2006
Supreme Court, Onondaga County

Scott & Christine Seymour, Plaintiffs,

against

Sears Roebuck and Co., Foremost International Ltd., and Foremost Groups, Inc. d/b/a Foremost International, Defendants.



05-3325



For the Plaintiffs:

Rothschild Law Firm, P.C.

By: Martin J. Rothschild, Esq.

For Defendants:

Hiscock & Barclay, LLP

By: Alan R. Peterman, Esq. Of Counsel

for Sears Roebuck and Co.

Levene Gouldin & Thompson, LLP

By: John Rittinger, Esq. Of Counsel

for Foremost Defendants

Edward D. Carni, J.

Plaintiffs Scott and Christine Seymour move for summary judgment pursuant to CPLR § 3212 seeking an Order against defendant Sears Roebuck ("Sears") on the issue of liability or, in the alternative, for an Order of Preclusion or appropriate sanctions for defendant Sears' alleged intentional spoliation of each and every piece of physical evidence related to plaintiff's accident.

Defendants Foremost International Ltd. and Foremost Groups, Inc. d/b/a Foremost International cross-move pursuant to CPLR § 3212 seeking an order granting summary judgment dismissing the complaint as against the Foremost defendants, or in the alternative, granting [*2]summary judgment on Foremost's cross-claim against defendant Sears, based upon the lack of evidence of negligence on the part of Foremost and as a penalty of spoliation pursuant to CPLR § 3216.

Defendant Sears cross-moves pursuant to CPLR § 3025(b) seeking an order granting Sears leave to amend its answer to add cross-claims against Foremost sounding in "contractual indemnification" and "strict products liability."

Procedural History

This action was commenced on July 27, 2005. Sears served its answer on or about August 5, 2005. The Foremost defendants served their answer on or about August 22, 2005. A Trial Note of Issue and Certificate of Readiness were filed on March 7, 2006. Discovery is complete. This matter is scheduled for a date certain for trial on December 11, 2006. Plaintiffs' motion was filed on April 6, 2006. Sears' cross-motion was filed on May 3, 2006. Foremost's cross-motion was filed on May 19, 2006. As a result of a number of adjournments, all motions were heard on August 10, 2006.

Factual Background

There is no factual dispute that on July 11, 2004 a cast iron rocker patio chair (Avalon Swivel Rocker Model No. FIAV5PC), manufactured by defendant Foremost, and assembled and placed on display by employees of the Sears store at the Great Northern Mall, collapsed when plaintiff Scott Seymour was sitting in it on the showroom floor. The Sears employees who assembled the set of patio chairs admitted that after the assembly of this particular chair, and prior to its collapse, there were parts left over from the assembly (Roser Tr at 66-68). There is also no dispute that three of the other chairs in the four (4) chair set were properly assembled without additional parts left over after the assembly process was complete. There is no dispute that the parts that were not attached to the subject chair included particular plates, bolts, nuts, washers, and a piece known as a T-rocker, the absence of which, made the chair unsafe.

There is also no dispute that after the collapse of the chair, a Sears security officer (Douglas J. Roser) came to the scene, took photographs of the chair, completed an accident report form, inspected the chair and determined that some parts were missing from the improperly assembled chair (Roser Tr at 61, 66, 67).

Contemporaneously therewith, a bag of extra parts was brought over by a Sears lawn and garden department employee and it was revealed that this bag of parts had been left in a drawer (Roser Tr at 66). The security officer for Sears recognized the importance of preserving these parts, put them in a ziplock bag, sealed it, put an evidence sticker across it and placed the bag in a locked cabinet (Roser Tr at 68-69).

The security officer also retained the improperly assembled chair for evidence and took it to the back lock-up room (Roser Tr at 73). The security officer reported plaintiff's incident to the [*3]loss prevention department at Sears (Roser Tr at 74) and also testified that there were at least two (2) store security cameras which had recorded the incident from separate angles (Roser Tr at 76). These security video tapes were also secured as evidence (Roser Tr at 80-81).

Approximately four or five days after the accident, an insurance investigator for Sears' liability carrier (Liberty Mutual) came to the store, took a picture of the chair and advised the security officer at Sears to continue to keep the chair, the parts, etc. (Roser Tr at 82-83). Ultimately, the security officer tagged and kept secured in the lock-up at the Sears store twelve (12) Polaroid pictures, three (3) video tapes and the unassembled parts and assembly instructions for the chair.

Sometime in February of 2005 the Sears store manager (Craig Coleman) threw out the chair, the video tapes, the photographs and the bag of left over parts (Coleman Tr at 48). [FN1]

Plaintiff's Summary Judgment Motion Against Sears on the Issue of Negligence

There is no factual dispute that Sears employees placed the chair on the display floor in an incomplete state of assembly and that the chair was in an unsafe condition as a result thereof. There is no factual dispute that plaintiff was caused to fall when he attempted to sit in the chair and it collapsed. Accordingly, plaintiffs' motion for summary judgment against Sears on the issue of negligence is granted.

Foremost's Motion for Summary Judgment

Defendant Foremost, as the manufacturer of the subject chair, cross-moves for summary judgment pursuant to CPLR § 3212 seeking an order dismissing plaintiffs' complaint against Foremost on the grounds that the plaintiffs cannot establish that any alleged negligence of Foremost was a proximate cause of the plaintiffs' injuries. Foremost also argues that it is entitled to summary judgment on its cross claim against co-defendant Sears for indemnity based upon the lack of evidence of negligence and as a statutory penalty under CPLR § 3126 and the common law doctrine of spoliation.

Foremost correctly points out, and there is no factual dispute, that after the incident alleged in the complaint, and despite being aware of the potential for a claim by the plaintiff, Sears employees destroyed the subject chair and its component parts and instructions which Foremost argues were key items of evidence necessary in the preparation of Foremost's defense.

Sears argues that the chair was improperly assembled by its employees due to insufficient [*4]or defective assembly instructions from Foremost that lacked appropriate warnings about the importance of properly assembling the T-rocker components of the chair. [FN2]

There is no dispute that over the course of time three (3) different sets of Foremost assembly instructions were produced by Foremost for this model of the chair. These are as follows:

(A) Instruction sheet with the date of October 10, 2003

(B) Instruction sheet dated January 14, 2004 - this instruction sheet

contains an express warning about the danger of misassembly

without the T-rocker (C) Instruction sheet dated February 25, 2004 - this instruction sheetcontains an express warning about the danger of misassembly

without the T-rocker

In analyzing the potential liability of Foremost to plaintiff for negligence or to Sears for contribution or indemnity, the threshold question becomes which set of instructions were utilized, if any, by the Sears employees in assembling the chair. The viability of plaintiffs' or Sears' claim against Foremost is dependent upon whether the October 10, 2003 instructions were used to assemble the chair or if the January 14, 2004 or February 25, 2004 instructions, with the express warning, were used in the assembly.

There is some testimony that the subject chair was received at the Sears store in December of 2003 (Coleman Tr at 14). Accordingly, Sears argues that if the chair was received in 2003 then the instruction sheet which accompanied it must have been the one dated October 10, 2003 which was without the warning contained in the later instruction sheets. However, Coleman also testified that the chair could have been received at the "end of January" (Coleman Tr at 15). If this were the case, then the instructions sheet dated January 14, 2004 could have been available to the Sears employees that assembled the chair.

However, at the same examination before trial, Coleman (the Sears' store manager), testified that he could not be certain that the chair which collapsed was from the display set which arrived in December of 2003 or from another set which arrived in February of 2004 or thereafter (Coleman Tr at 69). [FN3] The Sears lawn and garden department manager (Mary Jo [*5]Belknap) testified that she believed the display set involved in plaintiff's incident was assembled in May of 2004 (Belknap Tr at 31). The Sears security officer (Roser) who investigated plaintiff's accident the day that it occurred, testified that he was told by employees of Sears who assembled the chair that the chair was assembled on the date of the accident, July 11, 2004.

If the chair was assembled in May or July of 2004 it could have been part of a subsequent set received after February 2004. If that were the case, then the instructions which accompanied the chair could have been those dated January 14, 2004 or February 25, 2004, each of which contained explicit warnings against misassembly.

However, Foremost points to and relies upon the testimony of Sears security officer (Roser) who investigated the accident on the date thereof and identified a set of instructions as the set of instructions which were given to him by a Sears lawn and garden department employee who found the bag of parts in a drawer on the day of plaintiff's accident (Roser Tr at 68). This Sears security officer testified that these instructions that he saw on the date of the accident contained the warning information about the danger of misassembly (Roser Tr at 92). Roser testified that he took the instructions given to him on the day of plaintiff's accident by the Sears lawn and garden department employee and placed them in an "evidence" bag for preservation along with the other documents and materials pertaining to the accident (Roser Tr at 112). [FN4] A set of instructions was provided to Roser in the bag of parts (Roser Tr at 72).

Foremost argues that the assembly instruction sheet which was placed in the evidence bag for preservation by Sears on the date of the accident would have conclusively resolved the issue as to whether or not those instructions contained the appropriate warning. Foremost argues that the destruction and loss of all of this evidence, and particularly the instruction sheet, has materially prejudiced Foremost's ability to defend itself on the claim that the assembly instructions involved in this case were inadequate.

Sears argues that Foremost is not prejudiced because there is testimony that a set of instructions was printed off the internet that day and "of course, those instructions are going to be the most up to date version of the instructions" (See, Attorney Peterman Reply Affidavit at ¶ 11). First of all, no one has identified a set of instructions in this record as the set obtained from [*6]the internet. Secondly, Sears has not submitted any evidence to establish that the internet contained the most up to date version of the instructions. Lastly, there is no evidence that the set of instructions allegedly obtained from the internet did or did not contain the T-rocker assembly warning. In other words, Sears has offered nothing but speculation that the internet instructions were the "most up to date."

In deposition testimony that is not rebutted, the Sears security officer identified a copy of a set of Foremost assembly instructions which contained a warning against incorrect assembly of the T-rocker components and the possibility of serious personal injury from incorrect assembly (Roser Tr at 90). According to the security officer, and based upon his personal knowledge acquired from his actual participation in and management of the chair investigation that day, this set of instructions was the set he was provided with on the day of the incident (Roser Tr at 72) and was provided to him "in the bag of parts" (Id. At 72).

Sears argues that there is a question of fact as to which version of assembly instructions were utilized in the assembly of the chair and that a jury could find that the instructions dated October 10, 2003, without the T-rocker warning language, were a proximate cause of the chair's collapse and plaintiff's injuries.

Although Craig Coleman testified to a custom or practice that led him to assume or conclude that the patio furniture set at issue was assembled in December 2003 or January 2004 (Coleman Tr at 25-26, 34) and he saw it on the floor in January (Id. At 34), he also testified as follows:

"Q. Is it your testimony that you're sure that this particular

chair was assembled at that time?

A. No. I'm not saying that that's definitely when it was

assembled. That's generally when we receive all our

display model floor samples. And at that point in time

we put them together as soon as they come in.

Q. It's possible that this chair could have been assembled

at a later time when the actual stock arrived for whatever

reason?

A. It's - - really, they send in one display model of each set

that we sell. So they arrive long before we get any

replenishment pieces. So I would say that one was brought

in at that time. I can't say for sure, but generally that's

what happens is they all come in at the same time"

(Coleman Tr at 69-70).

A careful consideration of this testimony in a light most favorable to defendant Sears as [*7]the non-movant (See, Rifenburgh v Wilczek, 294 AD2d 653, 654-655 [3rd Dept 2002] establishes at most that Coleman was present on the day of the accident and that defendant's business practices, if followed, would have resulted in the patio set being assembled in December 2003 or January 2004.

However, something more than speculation is needed to defeat a motion for summary judgment (Webb v Tire and Brake Distributor, Inc., 13 AD3d 835, 837 [3rd Dept 2004][An affidavit of a retail district manager was insufficient to raise an issue of fact and defeat summary judgment where it was based only upon what the witness assumed what should have happened in accordance to defendant's business practices. Such averments, lacking personal knowledge, are without probative value], citing Steinborn v Himmel, 9 AD3d 531, 535 [3rd Dept 2004], quoting Oliveira v County of Broome, 5 AD3d 898, 899 [3rd Dept 2004]).

While circumstantial evidence may in some instances suffice to make out a prima facie case or defeat a summary judgment motion (see, Oliveira v County of Broome, 5 AD3d 898,899; La Hendro v Nadeau, 281 AD2d 717, 719 [3rd Dept 2001]; Salatino v Salatino, 257 AD2d 814, 814-815 [3rd Dept 1999]), and even recognizing that greater flexibility is accorded to those who oppose such motions where they demonstrate an "acceptable excuse for [their] failure to meet the strict requirement of tender [of evidentiary proof] in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979], it is well settled that where a defendant's proof in opposition is not based upon personal knowledge of what occurred, it is insufficient to create a material question of fact in that regard (Webb v Tire and Brake Distributor, Inc., 13 AD3d 835, 837-838 [3rd Dept 2004], citing CPLR

§ 3212[b]; Connor v Tee Bar Corp., 302 AD2d 729 [3rd Dept 2003]; see also Monge v Home Depot, 307 AD2d 501; 502 [3rd Dept 2003]; La Hendro v Nadeau, 281 AD2d 717, 719; Duprey v Drake, 182 AD2d 1015, 1016 [3rd Dept 1992]).

Here, Coleman's testimony is clear that he has no personal knowledge of when the chair was assembled. By his own admission, he can't say for certain when it was assembled and to the extent he offers any averments as to the date of assembly, they are based upon the Sears' store's "general" past experience of receiving display models.

Like the store employee in Webb, this testimony is not based on personal knowledge but rather, defendant Sears' business practices. As such, it lacks probative value and is insufficient to create a material issue of fact sufficient to defeat summary judgment.

However, the threshold issue for the court to determine is whether Foremost, as the proponent of summary judgment, has met its burden, in the first instance, of establishing prima facie entitlement to summary judgment. Moreover, it is well established that a moving party must affirmatively demonstrate the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof (Swimm v Bratt, 15 AD3d 976, 977 [4th Dept 2005]). [*8]

Here, Foremost has not established that it shipped a product to Sears with a set of instructions that contained an appropriate warning about the T-rocker assembly. Instead, the essence of Foremost's summary judgment motion is the assertion that "the plaintiffs cannot establish that any alleged negligence was the proximate cause of the plaintiff's injuries." (See, Fowler Affirmation dated May 18, 2006 at ¶ 2). Foremost has made no attempt in the context of this motion to affirmatively demonstrate when it shipped the chair at issue, what set of instructions were shipped with the chair, or that any particular version of instructions was sufficient to adequately instruct, warn or apprise users or assemblers of the chair as to the dangers associated with improper T-rocker assembly. It simply is not enough to say that plaintiffs cannot establish any negligence by Foremost. To the contrary, Foremost has the burden to establish in the first instance that it is free from negligence in order to shift the burden to plaintiffs or Sears to raise a material question of fact.

Additionally, Foremost concedes that there "is a question of fact as to whether the instructions sheet which accompanied the chair involved in plaintiff's accident did contain an explicit warning about the danger of misassembly" (Rittinger Affirmation dated August 7, 2006 at ¶ 12).

After considering all of the foregoing, the court finds that Foremost has failed to meet its burden, as the movant, of establishing entitlement to judgment as a matter of law in the first instance. Failure to make such a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers (JMD Holding Corp. v Congress Financial Corp., 4 NY3d 373 [2005]).

Accordingly, based upon the record, Foremost's motion for summary judgment is denied in its entirety.

Spoliation

A party asserting that it is aggrieved by the spoliation of evidence may seek sanctions either pursuant to CPLR § 3216 or on an independent, per se, basis (Wetzler v Sisters of Charity Hosp., 17 AD3d 1088 [4th Dept 2005]). The court has broad discretion in determining what, if any, sanctions should be imposed for spoliation of evidence (Iannucci v Rose, 8 AD3d 437 [2nd Dept 2004]; Allstate v Kearns, 309 AD2d 776 [2nd Dept 2003]). It may, under appropriate circumstances, impose a sanction even if destruction occurred through negligence rather than willfulness, and even if the evidence was destroyed before the spoliator became a party, provided the party was on notice that the evidence might be needed for future litigation (Iannucci, 8 AD3d at 438, citing DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 [2nd Dept 1998] cited with approval in Wetzler v Sisters of Charity Hosp., 17 AD3D 1088 [4th Dept 2005]).

Recognizing that striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness (Iannucci, 8 AD3d at 438, citing Favish v Tepler, 294 AD2d 396 [2nd Dept 2002]). [*9]Where a party destroys essential physical evidence such that its opponents are prejudicially bereft of appropriate means to confront a claim with incisive evidence, the spoliation may be sanctioned by the striking of its pleading (Gerber v Rosenfeld, 18 AD3d 812 [2nd Dept 2005]).

In the absence of pending litigation or notice of a specific claim or notice of the item's evidentiary value, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices (Balaskonis v HRH Const. Corp., 1 AD3d 120 [1st Dept 2003]).

Here, the record is replete with undisputed testimony that Sears was actually aware of the evidentiary value of the chair, the bag of parts and the instructions well in advance of their destruction.

Roser was trained and well aware of the need to secure and tag evidence for "insurance" and "legal" reasons (Roser Tr at 15).

Sears had a written policy requiring the preservation of evidence for a period of "between five and seven years just like the police" (Roser Tr at 37).

Store manager Coleman stated contemporaneously with the securing of evidence that "this guy [Seymour] is going to end up suing the store" (Roser Tr at 70).

An insurance adjuster from Liberty Mutual came to the store five (5) days after the incident to investigate, take pictures of the chair and examine the chair and the spare parts (Roser Tr 82-86) . The Liberty Mutual adjuster said there would be a "bunch of people that might want to look at the chair" (Roser Tr at 86-87).

Store manager Coleman stated that if Seymour "decides to sue, that its going to cost us a lot of money" (Roser Tr at 88).

Coleman testified that he asked the Sears asset protection manager to call Liberty Mutual and "find out about this product liability case" (Coleman Tr at 53). Coleman testified that In February 2005 he threw the chair and all other components in the trash compactor without notifying plaintiffs or Foremost (Coleman Tr at 54-56).

Coleman destroyed the chair based upon a conversation one of his employees had with an unknown person at Liberty Mutual who stated that Liberty Mutual "had no record of a case with Mr. Seymour" (Coleman Tr at 53).

Coleman knew at the time he destroyed the chair that neither Foremost or plaintiffs had been afforded an opportunity to inspect the chair and the bag of parts and instructions (Coleman Tr at 54-56).

This case is similar to Cummings v Central Tractor Farm & Country, Inc., 281 AD2d [*10]792 [3rd Dept 2001] where a chair was destroyed by the defendant retailer and the trial court granted summary judgment to both plaintiff and the defendant manufacturer upon a finding that the defendant retailer's negligent handling of the chair deprived plaintiff of the opportunity to prove his case and caused the manufacturer to lose "any possible defense to the action" (Cummings, 281 AD2d at 793). The retailer was repeatedly advised to retain the chair and considering that the chair was the very instrumentality giving rise to plaintiff's injuries, defendant retailer should have been aware of its importance (Id. at 793).

In Cummings, the Third Department upheld the granting of summary judgment to the plaintiff and the co-defendant which found that the defendant retailer's negligent handling of the chair deprived plaintiff of the opportunity to prove his case and caused the co-defendant to lose any possible defense to this action (Cummings, 281 AD2d at 793).

Here, it is no doubt tempting to find that Sears' destruction of the set of instructions in the plastic evidence bag warrants the sanction of granting summary judgment to Foremost.

However, a careful review of the record before the court demonstrates that Foremost has failed to establish at this juncture that the destroyed instructions were the actual instructions that were (1) shipped with the chair, and (2) used by the Sears employee to assemble the subject chair. In other words, the record is devoid of any testimony from the actual assembler of the chair demonstrating that the destroyed instructions were those used in actually assembling the chair. All this record reveals is that persons without personal knowledge of the chair assembly found a set of instructions in a drawer at the Sears store. Although these instructions were described as having a T-rocker warning by Roser, there is no evidentiary link of those instructions to the actual assembly of the chair.

The ultimate test for the present insignificance of the destroyed instructions is that even if they were recovered today, there still would be no link in this record of the destroyed instructions to the actual assembly of this chair. [FN5]

Accordingly, the motion of Foremost and plaintiffs for the imposition of spoliation sanctions against Sears is denied on this record without prejudice.

Sears' Motion for Leave to Amend Its Answer

Sears seeks leave pursuant to CPLR § 3025(b) to amend its answer to include cross-claims against Foremost sounding in "strict products liability" and "contractual indemnification" (See, Ryder Affirmation dated May 26, 2006 at ¶ 3). [*11]

Initially, it is well settled that a purchaser in a commercial transaction may not recover from the manufacturer of a defective product in tort under a strict products liability or negligence theory where the product (not the purchaser) was damaged and the purchaser have only sustained economic losses (as compared to personal injury or property damage) (7 World Trade Co. v Westinghouse, 256 AD2d 263, 264 [1st Dept 1998]). Additionally, the fact that a third party to the commercial transaction (personal injury plaintiff) may have sustained physical injury does not enure to the commercial purchaser's benefit and give rise to strict products liability or negligence claims (Id. at 264). The economic loss rule provides that where only economic loss with respect to a product itself is alleged and the underlying transaction is a sale of goods, the purchaser is limited to its contractual remedies and may not maintain the traditional tort causes of action of negligence or strict products liability (AKV Auto Transport, Inc. v Syosset Truck Sales, Inc., 24 AD3d 833, 835 [3rd Dept 2005]).

Sears' proposed cross-claim under a "strict products liability" theory against Foremost is patently without merit and leave to amend Sears' answer in this regard is denied.

Sears also seeks leave to add a cross-claim against Foremost under a theory of contribution or contractual indemnification. Sears concedes that it is not seeking to be indemnified for its own negligence (See, Attorney Peterman Reply Affidavit dated August 21, 2006 at ¶ 14). There is no dispute that Foremost and Sears entered into a written agreement for indemnification of Sears. Sears' proposed contractual indemnification and contribution cross-claim is based on the alleged inadequacy of Foremost's instructions concerning assembly of the chair (See, Attorney Peterman Reply Affidavit at ¶ 14).

Accordingly, in light of the foregoing, Sears is granted leave to amend its answer to include a cross-claim against Foremost for contribution and contractual indemnity for the alleged culpable conduct of Foremost in placing the chair in the stream of commerce with allegedly inadequate assembly instructions and warnings.

As a result of the amendment of the pleadings at this late stage and the short time prior to the scheduled trial date, the court finds Foremost will be prejudiced if it is not provided with an opportunity to retain an expert prior to trial. In light of the foregoing, the Note of Issue is stricken (22 NYCRR § 202.21[c]) and the parties are directed to complete all discovery made necessary as a result of this decision and the amended pleadings prior to December 31, 2006. Plaintiffs' expert disclosure is to be served sixty (60) days before trial. Defendants' expert disclosure is to be served thirty (30) days before trial. Sears is to file a new Note of Issue on or before January 31, 2007.

This constitutes the decision of the court. Counsel for defendant Sears to submit proposed order on notice.

ENTER

DATED: October ____, 2006______________________________ [*12]

HON. EDWARD D. CARNI, JSC Footnotes

Footnote 1: Coleman testified that before he disposed of this evidence in the trash, a Sears employee checked with Liberty Mutual and was advised that they had no record of a claim or lawsuit advanced with respect to the chair collapse.

Footnote 2: Sears relies upon plaintiffs' expert, Bruce Gorsak, who opines, inter alia, that the assembly instructions dated October 10, 2003 failed to adequately or sufficiently detail assembly of the kevlar and steel plates and failed to include a warning concerning the danger involved in improper assembly. Foremost has not submitted an expert affidavit.

Footnote 3: Mr. Coleman's testimony was as follows: "No. I'm not saying that that's definitely when it was assembled. That's generally when we receive all of our display model floor samples. And at that point in time, we put them together as soon as they come in" (Coleman Tr at 69).

Footnote 4: Although Sears attempts to create a question of fact on the instruction issue through Mr. Coleman's testimony, a fair and careful reading of Coleman's EBT transcript reveals Coleman: Never saw any instructions at any time (Tr at 35), was not present when a set of instructions was allegedly downloaded from the internet (Tr at 36) and cannot identify any one of the three sets of instructions as being those allegedly downloaded from the internet that day (Tr at 36). Although Coleman stated that the instructions from the internet were not the exact ones received (Tr at 37), he admitted that he never saw any instructions at any time prior to the date of the accident (Tr at 35) and he never personally found a copy of the instructions that had been sent with the product (Tr at 37). Lastly, Coleman admitted he had no personal "knowledge of a set of instuctions that were used to assemble the chair being produced and placed by Roser in the file" (Tr at 73).

Footnote 5: The parties have simply not established which set of instructions were actually used in the assembly. For reasons not clear on this record, no one has taken the deposition of David DeCarr, the assembler of the chair and the person who could provide the missing links crucial to the resolution of dispositive issues in this action.