Opinion
No. 32324/2009.
2012-10-24
James Richard FAHERTY, an infant by his Father and Natural Guardian, James Faherty v. BIRCHWOOD LODGE, INC. d/b/a Yogi Bear's Jellystone Park at Birchwood Acres and Miracle Recreation Equipment Company and Pettinelli & Associates x Miracle Recreation Equipment Co. s/h/a Miracle Recreation Equipment Company Peerless Chain Company, Peerless Industrial Group, and Peerless Industrial Group, Inc. Miracle Recreation Equipment Co. s/h/a Miracle Recreation Equipment Company v. Peerless Chain Company, Peerless Industrial Group, and Peerless Industrial Group, Inc.
Zemsky & Salomon, P.C., by Mitchell B. Koval, Esq., Hempstead, for Plaintiff. Montfort, Healy, McGuire & Salley, by Michael A. Baranowicz, Esq., Garden City, for Defendant Pettinelli & Associates and Defendant/Third–Party Plaintiff Miracle Recreation Equipment Co. s/h/a Miracle Recreation Equipment Company.
Zemsky & Salomon, P.C., by Mitchell B. Koval, Esq., Hempstead, for Plaintiff. Montfort, Healy, McGuire & Salley, by Michael A. Baranowicz, Esq., Garden City, for Defendant Pettinelli & Associates and Defendant/Third–Party Plaintiff Miracle Recreation Equipment Co. s/h/a Miracle Recreation Equipment Company.
Knych & Whritenour, LLC, by Brendan J. Reagan, Esq., Syracuse, for Defendant Birchwood Lodge, Inc. d/b/a Yogi Bear's Jellystone Park at Birchwood Acres.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, by Rosario M. Vignali, Esq., White Plains, for Third–Party Defendants Peerless Chain Company and Peerless Industrial Group, Inc.
CHARLES J. MARKEY, J.
The following papers numbered 1 to 30 read on this motion by Miracle Recreation Equipment Co., s/h/a Miracle Recreation Equipment Company, and Pettinelli & Associates, Inc., for summary judgment dismissing the complaint insofar as asserted against him; and cross motion by Birchwood Lodge, Inc. d/b/a Yogi Bear's Jellystone Park at Birchwood Acres, for summary judgment dismissing the complaint insofar as asserted against it.
+-----------------------------------------------------+ ¦Papers ¦Numbered ¦ +------------------------------------------+----------¦ ¦Notice of Motion—Affidavits—Exhibits ¦1–5 ¦ +------------------------------------------+----------¦ ¦Notice of Cross Motion—Affidavits—Exhibits¦6–13 ¦ +------------------------------------------+----------¦ ¦Answering Affidavits—Exhibits ¦14–26 ¦ +------------------------------------------+----------¦ ¦Reply Affidavits ¦27–30 ¦ +-----------------------------------------------------+
This action arises from an accident on June 28, 2009, when infant James Richard Faherty sustained the amputation of two fingertips when he jumped from a swing at Birchwood Lodge, “Yogi Bear's Jellystone Park,” located in Greenfield Park, in Ulster County, New York. The infant plaintiff's fingers became caught in the chain of the swing as he was holding on to it. Plaintiff alleges that the swing set was dangerous, in part, because the chain supporting the swing was improperly-sized and harbored a “trap” to small children's fingers and because a covering over the chain was not provided.
The plaintiff commenced this action against Birchwood Lodge, Inc., in its capacity as the owner of the site where the accident occurred and of the playground equipment. Plaintiff also named as defendants Miracle Recreation Equipment Co. (“Miracle”), and Pettinelli & Associates (“Pettinelli”), the manufacturer and installer, respectively, of the playground equipment involved in the accident. Miracle then initiated a third-party claim against Peerless in its capacity as the supplier of the bulk chain utilized by Miracle in manufacturing the playground equipment.
Miracle moves herein for summary judgment to dismiss the complaint, the cross complaint of Birchwood Lodge, Inc. d/b/a Yogi Bear's Jellystone Part at Birchwood Acres (collectively referred to herein as “Birchwood”), and the counterclaim of Peerless Chain Company, Inc. and Peerless Industrial Group, Inc. (“Peerless”), insofar as asserted against it. Birchwood cross moves to dismiss the complaint insofar as asserted against it. The motion and cross motion are opposed.
The Facts
This Court's prior and recent decision regarding the various claims asserted in this action is reported at In re Faherty ex rel. Faherty, 35 Misc.3d 1240(A), 2012 WL 2148983, Prod. Liab. Rep. (CCH) P 18,866, 2012 N.Y. Slip Op. 51046(U) [Sup Ct Queens County 2012] [denying branch of defense motion to dismiss claims based upon a design defect and granting branch of defense motion to dismiss claims based upon a failure to warn or inadequate warnings].
Briefly, the plaintiff testified that on June 28, 2009, he was involved in an accident at Birchwood. The uncontroverted facts are that the plaintiff, then ten-years old, was playing on a swing set on the Birchwood property when he jumped off the swing and his fingers got caught between the links of the swing. Plaintiff testified that as he was swinging, his right hand was wrapped around the swing chain and was not going through the links. As plaintiff slowed down the swing and decided to jump from it, he felt the chain move and as he was coming off the swing, felt a yank or tug on his fingers. Plaintiff's fingers were trapped inside of the link causing the tips of two of them to be amputated as plaintiff jumped from the swing.
Birchwood owned the property where the accident occurred.
Plaintiff alleges that the Miracle-supplied playground equipment was defectively-designed because the swing set's chain was “too small” and contained a “trap which a child's finger could get caught inside” and because the chain “failed to provide sheathing over the swing chain”. Thus, plaintiff is alleging that covered (sheathed) chain or PVC-covered chain could have eliminated, or at least reduced the possibility of snaring small fingers.
The swing and swing chain in question were purchased by Birchwood from Miracle through Miracle's authorized sales agent, Pettinelli, in late 2006 and early 2007. Pettinelli also installed the swings in the spring of 2007. Steven Adkins, a design engineer with over 30 years of experience with Miracle, testified on behalf of Miracle as follows: Miracle manufactures commercial-type playground equipment—“the stuff you see at parks and schools.” In fact, Miracle is an “expert” in the field of playground equipment. In the 2005–2007 period, Peerless was the exclusive supplier of chain utilized by Miracle in manufacturing the playground equipment, including the straight link coil chain used for the swings. Miracle produced sales catalogs that were used by its sales force, including Pettinelli & Associates, to assist in the sale of Miracle's products.
Defendant Pettinelli, through its sales associate, Robert Pettinelli, testified as follows: Pettinelli sells and installs commercial playground and recreational equipment. Pettinelli acts as a sales representative for Miracle. Part of Robert Pettinelli's duties as a sales associate was helping a customer such as Birchwood design a playground. Pettinelli was contacted by Michael Zalkin of Birchwood in 2006 regarding the installation of a playground. Pettinelli provided Zalkin with a Miracle catalogue for the year 2006. Pettinelli went over said catalogue with Zalkin. Pettinelli never discussed with Zalkin at any time what type of swing chain would be used on the swing. Pettinelli never discussed with Zalkin options in relation to the swing, swing seat and swing chains available for purchase as seen in the catalogue.
Pages 128 and 129 of the 2005 catalog show that Miracle was selling “Tensile Tough Coated chain” for use with its swings. “Tensile Tough Coated chain” refers to chain that is encased in a plastic sheath or “coat.” Adkins gave substantially the same testimony with regard to the 2006 and 2007 catalog. The plastic sheathing on the chain covers approximately 24 to 30 inches of the swing chain. Miracle first offered plastic-sheathed chain to its customers throughout the 2005–2007 time period. Once Miracle began offering plastic-sheathed chain in or about 2004, “Champion” was the exclusive supplier of plastic-sheathed chain to Miracle through 2007, including the “4/0 straight link chain” that forms the basis of this lawsuit. Chain with no plastic sheathing was supplied during this period exclusively by Peerless.
Adkins further testified that the engineering department was responsible for choosing the straight link coil chain (naked chain) used in the swing chain involved in the accident. Miracle did some of their own testing in relation to the swing sets during the period of 2005–2007. Miracle tested for strength, layout of the swings and spacing of the swings. Adkins did not recall the engineering department doing any type of finger probe testing on the swing sets during the period of 2005–2007.
Before beginning to offer the plastic-sheathed chain in or about 2004, Miracle offered for sale chain that was encased in a relatively thick coating of PVC. One result of coating the chain with PVC was a “fatter” look to the individual links and a smaller inside diameter of the individual links. Miracle switched over to plastic-sheathed chain when the practice of coating its chain with PVC stopped. Plastic-sheathed chain was, and remained, an option available to Miracle's customers during the 2005–2007 time period. A Miracle customer could get chain with, or without, the plastic sheathing but it was not Miracle's general practice to make a recommendation to the customer either way. If a customer chose the option of buying plastic-sheathed chain, Miracle would simply obtain a supply of it from Champion, Miracle's exclusive supplier. If a customer simply wanted and ordered “naked” chain, then Miracle would obtain a supply of naked chain from Peerless. Peerless never supplied plastic-sheathed chain to Miracle.
Birchwood submits that during the sales process, neither Miracle nor Pettinelli offered Birchwood any options regarding swing chains; the possibility of purchasing a swing chain with sheathing or any other type of coating was not communicated to Birchwood.
The Motion
The motion by Miracle for summary judgment dismissing the complaint insofar as asserted against Miracle is denied. It is well established that “a defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use' “ (Voss v. Black & Decker Mfg. Co ., 59 N.Y.2d 102, 107 [1983],quoting Robinson v. Reed—Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479 [1980] ). In order to recover on the basis that a product was designed defectively, “it must be established that the marketed product in question was designed in such a way that it is not reasonably safe and that the alleged design defect was a substantial factor in causing the [plaintiff's] injuries' “ (Gonzalez v. Delta Intl. Mach., 307 A.D.2d 1020, 1021 [2nd Dept.2003], citing Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102,supra ).
The determination of a design defect requires a risk/utility analysis that involves consideration of whether, if the alleged defect was 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' “ (Denny v. Ford Motor Co., 87 N.Y.2d 248, 257 [1995],quoting Voss v. Black & Decker Mfg. Co., 59 N.Y.2d at 108,supra ). Although such analysis generally presents a question of fact for trial, “[s]ummary judgment in a strict products liability case may be granted [to a defendant] on the basis of [a] plaintiff's conduct when the plaintiff's actions constituted the sole proximate cause' of his or her injuries” (Yun Tung Chow v. Reckitt & Colman, Inc., 17 NY3d 29, 34 [2011],quoting Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 534 [1991] ). However, where “a fact finder could conclude on the basis of the record before [it] that the product was so inherently dangerous that [the product] should never have found its way into the stream of commerce as packaged and marketed” (Yun Tung Chow v. Reckitt & Colman, Inc., 17 NY3d at 34,supra ), a plaintiff's conduct will not be considered the sole proximate cause of his injuries and a defendant's motion for summary judgment should be denied.
In the present case, upon the foregoing papers, the defendant's experts opined that the chain met appropriate industry standards and was reasonably safe as designed and manufactured and that there were no malfunctions, failures, or defects in the swing that were the cause of the subject accident. This was sufficient to shift the burden to plaintiff to present “competent proof that the [swing s design] was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner' “ (Stalker v. Goodyear Tire & Rubber Co., 60 AD3d 1173, 1175 [3rd Dept.2009], quoting Voss v. Black & Decker Mfg. Co., 59 N.Y.2d at 108,supra ).
To that end, plaintiff provided the affidavit of his expert setting forth his opinion that the design of the swing—which undisputedly allowed for the trapping/pinching of small fingers—was not reasonably safe and was the cause of plaintiff's accident. Specifically,
Arthur H. Mittelstaedt, Jr., submitted an affidavit relating the following: there was a design defect in the improper size of the swing chain links; defendant Miracle negligently did not conduct certain finger probe tests to check the safety of the swing chain; the exemption of the swing chain from ASTM standards was improper; the naked swing chain should have been sheathed or covered where a child could grasp the links; defendant Birchwood was not properly advised concerning the availability of sheathed chain by defendant Pettinelli; Birchwood should have had sheathed or covered swing chain on the swing upon which plaintiff's accident happened; defendants were aware that children jump off swings while playing; and Birchwood failed to warn plaintiff of the risk of jumping off the swing and improperly maintained the wood fill surfacing under the swing contributing to the accident.
Plaintiff submits that these factors, inter alia, are the proximate causes of the happening of his accident. The plaintiff's expert avers, in addition, that Miracle manufactures “tensile tough coated chain” as an alternative to the “naked swing chain” which was involved in this accident, and that the “tensile touch coated chain” is covered and sheathed in a spongy type material eliminating the finger trap hazard and was economically and technologically feasible.
The conflicting opinions of the parties' experts regarding the reasonableness of the swing's design present classic credibility issues that are ordinarily a matter for the trier of fact to resolve ( see, Sillman v. Twentieth Century—Fox Film Corp., 3 N.Y.2d 395, 404 [1957];Powell v. HIS Contrs., Inc., 75 AD3d 463, 465 [1st Dept.2010] ).
Defendants also contend that, as a matter of law, plaintiff assumed the risk of his injury, thus barring his recovery. Care must be taken to distinguish between two distinct doctrines of assumption of risk. The first is embraced within the CPLR article 14—A concept of culpable conduct attributable to the plaintiff (CPLR 1411). It is akin to comparative negligence; it does not bar recovery, but diminishes recovery in the proportion to which it contributed to the injuries (CPLR 1411).
Here, the concern is with another category of assumption of risk, sometimes called “primary” assumption of risk ( see, Turcotte v. Fell, 68 N.Y.2d 432, 438 [1986] ). If applicable, the doctrine of primary assumption of risk is not a measure of plaintiff's comparative fault, but a measure of the defendant's duty of care. Primary assumption of risk eliminates or reduces the tort-feasor's duty of care to the plaintiff and constitutes a complete bar to recovery, notwithstanding CPLR article 14—A ( see, Turcotte v. Fell, 68 N.Y.2d at 438–439,supra; Maddox v. City of New York, 66 N.Y.2d 270, 276 [1985];Arbegast v. Board of Educ., 65 N.Y.2d 161, 165–171 [1985] ).
Primary assumption of risk may be express or implied ( compare Arbegast v. Board of Educ., 65 N.Y.2d at 162,supra, with Maddox v.. City of New York, 66 N.Y.2d at 276,supra,). The doctrine is frequently applied, or sought to be applied, to claims of injury arising out of a plaintiff's participation in a sporting or entertainment event or activity, whether amateur or professional. As Chief Judge Cardozo eloquently stated:
.... The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquillity. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.
A different case would be here if the dangers inherent in the sport were obscure or unobserved....
(Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483 [1929].See, e.g., Owen v. R.J.S. Safety Equip. Inc., 79 N.Y.2d 967 [1992],aff'g, 169 A.D.2d 150 [3rd Dept.1991] [professional auto race]; Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650 [1989] [high school football game]; Turcotte v. Fell, 68 N.Y.2d 432,supra [professional horse race]; Maddox v. City of New York, 66 N.Y.2d 270,supra [major league baseball game]; Arbegast v. Board of Educ., 65 N.Y.2d 161,supra [“donkey basketball” game]; Adamczak v. Leisure Rinks Southtown, 170 A.D.2d 951 [4th Dept.1991] [broomball game]; Marlowe v. Rush—Henrietta Cent. School Dist., 167 A.D.2d 820 [4th Dept.1990], aff'd78 N.Y.2d 1096 [1991] [gym class baseball game]; Verro v. New York Racing Assn., 142 A.D.2d 396 [3rd Dept.1989], lv. to appeal denied,74 N.Y.2d 611 [1990] [professional horse race]; Cole v. New York Racing Assn., 24 A.D.2d 993 [2nd Dept.1965], aff'd, 17 N.Y.2d 761 [1966] [same]; see also, Sutfin v. Scheuer, 74 N.Y.2d 697 [1989],aff'g145 A.D.2d 946 [4th Dept.1988] [game of catch]; Blecher v. Holiday Health & Fitness Ctr. of NY, 245 A.D.2d 687, 687 [3rd Dept.1997] )..
Primary assumption of risk, however, cannot constitute a defense to a strict products liability claim (Lamey v. Foley, 188 A.D.2d 157 [4th Dept.1993]; accord, Garnett v. Strike Holdings LLC, 64 AD3d 419 [1st Dept.2009] [release at go-kart recreational facility was unenforceable as against public policy in a strict products liability claim]; Guerra v. Howard Beach Fitness Center, Inc., 32 Misc.3d 1214(A), 2011 WL 2685702, 2011 N.Y. Slip Op. 51282(U) [Sup Ct Queens County 2011] [McDonald, J.] [allegedly defective treadmill at a gym] ).
Accordingly, Miracle's motion for summary judgment to dismiss is denied.
Cross Motion
A landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property ( see, Rovegno v. Church of the Assumption, 268 A.D.2d 576 [2nd Dept.2000]; Kurshals v. Connetquot Cent. School Dist., 227 A.D.2d 593 [2nd Dept.1996]; see also, Basso v. Miller, 40 N.Y.2d 233, 241 [1976] ). “There is, however, no duty to warn against a condition which is readily observable or an extraordinary occurrence, which would not suggest itself to a reasonably careful and prudent person as one which should be guarded against” (Rovegno v. Church of Assumption, 268 A.D.2d at 576,supra [internal quotation marks omitted]; see, Kurshals v. Connetquot Cent. School Dist., 227 A.D.2d at 594,supra ).
The question of whether a condition is hidden or open and obvious is generally for the finder of fact to determine ( see, Liriano v. Hobart Corp., 92 N.Y.2d 232, 242 [1998];Bolm v. Triumph Corp., 33 N.Y.2d 151, 159–160 [1973] ). A court may determine that a risk is open and obvious as a matter of law where clear and undisputed evidence compels such a conclusion ( see, Tagle v. Jakob, 97 N.Y.2d 165, 169 [2001];cf. Cupo v. Karfunkel, 1 AD3d 48 [2nd Dept.2003]; Gibbons v. Lido & Point Lookout Fire Dist., 293 A.D.2d 646 [2nd Dept.2002] ).
Here, defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law by submitting evidence that the chain link swing which pinched plaintiff's fingers was not inherently dangerous and was readily observable by the reasonable use of one's senses ( see, Russ v. Fried, 73 AD3d 1153 [2nd Dept.2010]; DiGeorgio v. Morotta, 47 AD3d 752 [2nd Dept.2008]; Errett v. Great Neck Park Dist., 40 AD3d 1029 [2nd Dept.2007]; Fernandez v. Edlund, 31 AD3d 601 [2nd Dept.2006]; Capozzi v. Huhne, 14 AD3d 474 [2nd Dept.2005] ). Furthermore, as noted above, the assumption of risk concept is inapplicable under the circumstances.
Accordingly, Birchwood's cross motion for summary judgment to dismiss is also denied.
Conclusion
The motion by Miracle and the cross motion by Birchwood for summary judgment to dismiss are both denied.
Counsel for all parties shall appear in the Trial Assignment Part in Jamaica on January 8, 2013, where this action is marked “Final” for jury selection.
The foregoing constitutes the decision, opinion, and order of the Court.