The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge
This suit arises from the death of Velma Michnovez ("Mrs. Michnovez"). Plaintiffs, her son and daughter-in-law, have sued Blair, LLC ("Blair"), which sold Mrs. Michnovez the bathrobe she was wearing at the time she sustained fatal injuries as a result of a cooking accident. In their Second Amended Complaint, plaintiffs assert claims for Mrs. Michnovez's wrongful death (Count I), enhanced compensatory damages (Count II), Mrs. Michnovez's conscious pain and suffering (Count III), personal injuries to John Michnovez (Count IV), and negligent infliction of emotional distress on John Michnovez (Count V) and Susan Michnovez (Count VI). Before the court is Blair's motion for summary judgment. Plaintiffs object. For the reasons that follow, Blair's motion for summary judgment is granted in part and denied in part.
Summary Judgment Standard
"To prevail on summary judgment, the moving party must show that 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Markel Am. Ins. Co. v. Diaz-Santiago, 674 F.3d 21, 29 (1st Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). "[A]n issue of fact is genuine if 'a reasonable jury could resolve it in favor of either party.'" Markel, 674 F.3d at 29-30 (quoting Basic Controlex Corp. v. Klockner Moeller Corp., 202 F.3d 450, 453 (1st Cir. 2000)). "A fact is material if it 'might affect the outcome of the suit' under governing law." Markel, 674 F.3d at 29 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "In determining whether a genuine issue of material fact exists, [the court] construe[s] the evidence in the light most favorable to the non-moving party and make[s] all reasonable inferences in that party's favor." Markel, 674 F.3d at 30 (citing Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir. 2004)).
"The object of summary judgment is to 'pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Davila v. Corporacion de P.R. para la Diffusion Publica, 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004)). "[T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation marks omitted).
"The non-movant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists." Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012) (quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006)). "However, 'a conglomeration of conclusory allegations, improbable inferences, and unsupported speculation is insufficient to discharge the non-movant's burden.'" SanchezRodriguez, 673 F.3d at 9 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005)). "Rather, the party seeking to avoid summary judgment must be able to point to specific, competent evidence to support his [or her] claim." SanchezRodriguez, 673 F.3d at 9 (quoting Soto-Ocasio v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir. 1998)) (internal quotation marks omitted).
As required by Rule 7.2(b)(1) of the Local Rules of this district, Blair's memorandum of law "incorporate[s] a short and concise statement of material facts, supported by appropriate record citations, as to which [it] contends there is no genuine issue to be tried." While plaintiffs argue at several points that genuine issues of material fact preclude summary judgment, their memorandum of law does not "incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which [they] contend[ ] a genuine dispute exists so as to require a trial." LR 7.2(b)(2). Accordingly, "[a]ll properly supported material facts set forth in [Blair]'s factual statement shall be deemed admitted." Id.
In January of 2006, Mrs. Michnovez purchased a bathrobe from Blair, a clothing retailer. In November of 2007, she sustained fatal burns while wearing that robe, which caught on fire when she was alone in her apartment. Plaintiffs, who lived downstairs from Mrs. Michnovez, first realized that she was in trouble when they heard the smoke alarm in her apartment go off. In response, they ran upstairs and found Mrs. Michnovez in the bathroom shouting "I'm on fire." Over the course of approximately thirty seconds, John Michnovez ("John") put out the fire, burning himself in the process. Later that day, Mrs. Michnovez died.
Mrs. Michnovez was the only witness to the start of the fire. Susan Michnovez ("Susan") recalls hearing her mother-inlaw say that she was reaching over the back burner of her gas stove when the sleeve of her bathrobe ignited. It appears to be undisputed that Mrs. Michnovez was cooking at the time of her accident.
John does not know how long his mother's bathrobe was on fire before he got upstairs or how quickly the fire spread once the robe ignited. Susan does not know whether the sleeves on Mrs. Michnovez's robe were rolled up or how long they were, how long the robe was exposed to the burner flame before it ignited, or how quickly the fire spread. Mrs. Michnovez never told anyone how quickly the fire spread or how long she was on fire.*fn1
Susan was not physically injured by the fire. She has had nightmares about it, but has not sought treatment from a psychiatrist, psychologist, or therapist for any mental or emotional condition resulting from the fire. Her activities have not been limited in any way as a result of her alleged emotional distress.
Blair moves for summary judgment on all of plaintiffs' claims on grounds that plaintiffs have failed to produce evidence that any characteristic of Mrs. Michnovez's bathrobe was the proximate cause of her fatal injury. In addition, Blair makes specific arguments for summary judgment on two of the five negligence theories stated in Count I.*fn2 Blair also makes specific arguments concerning Counts II, V, and VI. Plaintiffs concede that Blair is entitled to summary judgment on: (1) the failure-to-recall claim stated in Count I at paragraph 21(e); and (2) Count V, John's claim for negligent infliction of emotional distress. In this section, the court turns first to Blair's argument on proximate cause, and then addresses its arguments on: (1) the failure-to-warn claim stated in Count I at paragraph 21(b); (2) Count II, plaintiffs' claim for enhanced compensatory damages; and (3) Count VI, Susan's claim for negligent infliction of emotional distress.
Blair concludes its memorandum of law with an argument that all of plaintiffs' claims require proof of causation, and that without an eyewitness to the start of the fire, there is no evidence as to how the fire started, what exactly Mrs. Michnovez was doing at the time the fire started, what part of the bathrobe caught fire and when, how long the robe was exposed to the flame before it burned, how long the bathrobe burned before the smoke alarm sounded, or what evasive action (if any) Mrs. Michnovez took to either put out the fire or attempt to remove the robe.
Def.'s Mem. of Law (doc. no 85-1), at 21. Blair continues: "Absent such evidence, it is purely speculative to attribute the proximate cause of the fire to the characteristics of the bathrobe about which plaintiffs complain." Id. Plaintiffs contend that they have produced sufficient evidence to create a triable issue on the element of causation, including an expert opinion based on, among other things, the expert's testing of a robe similar to the one Mrs. Michnovez was wearing when she suffered her fatal injuries.
In response to plaintiffs' objection to summary judgment, Blair points out that "[w]hen the matter [of causation] remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." Def.'s Reply (doc. no. 88), at 9 (quoting Ricci v. Alt. Energy Inc., 211 F.3d 157, 162 (1st Cir. 2000) (citation omitted)) (emphasis in Ricci). Blair next clarifies its position: "In the instant case, the inferences that can be drawn from the facts simply do not permit the conclusion that this fire more likely occurred as a result of a product defect versus an inadvertent accident." Def.'s Reply, at 9 (emphasis in the original).
As a preliminary matter, Blair is correct that plaintiffs' claims in both negligence and strict liability require proof of causation. See White v. Asplundh Tree Expert Co., 151 N.H. 544, 547 (2004) ("To recover on a claim of negligence, a plaintiff must establish that a defendant breached its duty of care and that the breach proximately caused the claimed injury.") (citing Weldy v. Town of Kingston, 128 N.H. 325, 330 (1986)); Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 824 (2005) ("Under the doctrine of strict liability, '[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer.'") (quoting Price v. BIC Corp., 142 N.H. 386, 388 (1997); citing Restatement (Second) of Torts § 402A(1) (1965)); see also Wilson v. Bradlees of N.E., Inc., 250 F.3d 10, 15 n.6 (1st Cir. 2001) ("Under New Hampshire law, strict liability, as well as negligence, requires proof of causation.") (citing Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 809 (1978)).
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