18‐3658
Michael v. General Motors LLC


                                        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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
      City of New York, on the 29th day of October, two thousand nineteen.

      PRESENT:
                           JON O. NEWMAN,
                           DENNY CHIN,
                           JOSEPH F. BIANCO,
                                     Circuit Judges.
      - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

      MARCOS MICHAEL,
                   Plaintiff‐Appellant,

                                          v.                                                  18‐3658‐cv

      GENERAL MOTORS LLC,
                   Defendant‐Appellee.

      - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

      FOR PLAINTIFF‐APPELLANT:                                                           MARCOS MICHAEL, pro
                                                                                         se, Bronx, New York.
FOR DEFENDANT‐APPELLEE:                                        STEVEN R. KRAMER,
                                                               Eckert, Seamans, Cherin &
                                                               Mellott, LLC, White
                                                               Plains, New York.



              Appeal from a judgment of the United States District Court for the

Southern District of New York (McMahon, C.J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff‐appellant Marcos Michael, proceeding pro se, appeals the district

courtʹs judgment, entered November 14, 2018, dismissing his claims against defendant‐

appellee General Motors LLC (ʺGMʺ). By decision and order entered November 13,

2018, the district court granted GMʹs motion for summary judgment. Michael sued

GM after he was injured in a car crash, alleging that the carʹs airbag failed to deploy and

the seatbelt failed to restrain him. We assume the partiesʹ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

              We review a grant of summary judgment de novo, ʺresolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.ʺ Garcia v. Hartford

Police Depʹt, 706 F.3d 120, 127 (2d Cir. 2013) (per curiam). ʺSummary judgment is

proper only when, construing the evidence in the light most favorable to the non‐

movant, ʹthere is no genuine dispute as to any material fact and the movant is entitled
                                             2
to judgment as a matter of law.ʹʺ Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011)

(quoting Fed. R. Civ. P. 56(a)).

   I.     Timeliness of Summary Judgment Motion

              We first address Michaelʹs argument that GMʹs summary judgment

motion was untimely, and therefore should not have been considered by the district

court. Contrary to Michaelʹs characterization, the original motion was timely filed.

Further, as the district court explained, the ʺamended motion,ʺ which was filed one day

late, did not make any substantive changes and only highlighted the importance of the

Notice to Pro Se Litigants, which was timely filed the previous day. In deciding the

summary judgment motion, the district court relied on GMʹs timely‐filed Statement of

Material Facts and evidence (which were not changed by the amended motion).

Thus, even if the district court considered only the first, timely‐filed motion, the

outcome would have been the same.

   II.    Constitutionality of the Summary Judgment Motion

              Michaelʹs argument that summary judgment violated his Seventh

Amendment right to a jury trial is unavailing. Summary judgment does not violate the

Seventh Amendment where, as here, there are no genuine issues of material fact and the

movant is entitled to judgment as a matter of law. See Parklane Hosiery Co. v. Shore, 439

U.S. 322, 336 (1979).

                                             3
    III.   Airbag Claims

               Although the district court held that Michaelʹs airbag claims failed

because, inter alia, Michael did not proffer any expert testimony showing that the

collision should have triggered airbag deployment, we affirm on a different ground:

Michael failed to present evidence from which a reasonable jury could find that any

alleged defect caused his injuries. See Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993)

(ʺ[This Court] may affirm . . . on any basis for which there is a record sufficient to

permit conclusions of law, including grounds upon which the district court did not

rely.ʺ).1 In New York, a plaintiff must show that his injuries resulted from the alleged

defect. See Doomes v. Best Transit Corp., 17 N.Y.3d 594, 608 (2011); Voss v. Black & Decker

Mfg. Co., 59 N.Y.2d 102, 109 (1983). Specifically, where a plaintiff claims that the




1       We note that the district court did not consider whether Michaelʹs airbag claim could
survive summary judgment under a strict liability design defect theory. Liberally construed,
his complaint asserted both manufacturing and design defect theories. In New York, to
establish a design defect, a plaintiff must ʺpresent evidence that the product, as designed, was
not reasonably safe because there was a substantial likelihood of harm and it was feasible to
design the product in a safer manner.ʺ Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108
(1983). Here, the severity of Michaelʹs injuries arguably shows that the non‐deployment of the
airbag created an unsafe condition. And an alternative design ‐‐ airbags that deploy in a
scenario like the crash at issue ‐‐ is, at least arguably, obvious to a layperson. But see Fitzpatrick
v. Currie, 861 N.Y.S.2d 431, 434 (3d Depʹt 2008) (holding that, although ʺthe opinion of an expert
may not always be necessary in establishing a products liability case,ʺ a claim that an airbag
deployed with excessive force and/or improperly split open required expert evidence). Even if
Michael presented sufficient evidence showing a design defect in the airbag, however, he failed
to show that the defect (the airbagʹs non‐deployment) caused his injuries.

                                                  4
alleged defects did not cause the car crash itself, he must show how the alleged defect

aggravated his injuries (i.e., he must show the difference between the injuries that

would have occurred without the defect and the injuries that did occur). Garcia v.

Rivera, 553 N.Y.S.2d 378, 379‐80 (1st Depʹt 1990); see also Caiazzo v. Volkswagenwerk A.G.,

647 F.2d 241, 249‐51 (2d Cir. 1981). This causation requirement applies whether the

claims rely on a theory of negligence or strict liability. See Garcia, 553 N.Y.S.2d at 379‐

80 (holding that summary judgment should have been granted as to negligence and

strict liability claims where plaintiff failed to show that his injuries were enhanced by an

allegedly defective truck bumper).

              GMʹs evidence showed that even if the airbag had deployed, it would not

have prevented Michaelʹs head from moving laterally through the driverʹs side window

and hitting the concrete barrier. Michael did not proffer any evidence countering this

testimony, nor did he otherwise present evidence that his injuries were aggravated by

the non‐deployment of the airbag; in other words, he failed to present evidence that

even if the airbag had deployed, his head would not have hit the concrete barrier and

he would not have suffered the same injuries. Although Michael may be correct that

he was not necessarily required to have expert evidence to support his claim, see

Fitzpatrick v. Currie, 861 N.Y.S.2d 431, 434 (3d Depʹt 2008); Jackson v. Melvey, 392

N.Y.S.2d 312, 314 (2d Depʹt 1977), he did not offer any evidence to show the requisite

                                              5
causation.2 Thus, even if the airbag suffered from a defect (manufacturing or design),

Michaelʹs claim fails as a matter of law.

    IV.    Seatbelt Claims

               Summary judgment was proper as to Michaelʹs seatbelt claims for the

same reason: Michael failed to show that his injuries were aggravated by any alleged

seatbelt defect. See Leon, 988 F.2d at 308 (affirming on any basis in the record). As to

the alleged manufacturing defect, GM proffered evidence that a properly worn,

properly functioning seatbelt would not have prevented Michaelʹs head from moving

laterally outside the driverʹs side window and hitting the barrier. Michael, on the other

hand, failed to proffer any evidence countering GMʹs evidence or otherwise showing

that, if the seatbelt was properly functioning, his head would not have moved laterally

outside the window and hit the concrete barrier. Instead, he argues only that he was

wearing his seatbelt properly ‐‐ a fact that GMʹs experts and the district court assumed

in their conclusions. Thus, even if the seatbelt malfunctioned, Michaelʹs manufacturing

defect claim fails as a matter of law.

               As to the alleged design defect, Michael failed to show that such a defect

enhanced his injuries because he failed to propose any reasonable design that would



2      But see Caiazzo, 647 F.2d at 250 (ʺ[Evidence of enhanced injuries] will generally, perhaps
even necessarily, be in the form of expert testimony.ʺ).

                                                6
have prevented or mitigated those injuries. A plaintiff must proffer some admissible

evidence showing that an alternative reasonable design is technologically and

commercially feasible. See Voss, 59 N.Y.2d at 109 (discussing factors courts consider

when determining whether an alternative design is feasible). Here, Michael did not

propose any alternative seatbelt design that would have prevented him from moving

laterally out the window, and none is obvious.

             We have considered all of Michaelʹs remaining arguments and find them

to be without merit. Accordingly, we AFFIRM the judgment of the district court.




                                        FOR THE COURT:
                                        Catherine O=Hagan Wolfe, Clerk of Court




                                           7
