Opinion
150656/12
03-28-2016
Eucebio Dionisio Hernandez, Plaintiff, v. Vittorio Asoli, TRATTORIA ROMANA, INC., SKYFOOD EQUIPMENT LLC and E & A SUPPLY, INC., Defendants,
This is an action for personal injuries allegedly sustained by plaintiff Eucebio Dionisio Hernandez (hereinafter "plaintiff"), on April 26, 2012, while working as a "busboy" at defendant Trattoria Romana Inc (hereinafter "Trattoria"), a restaurant owned by individual defendant Vittorio Asoli (hereinafter "Asoli"). To the extent relevant, plaintiff alleges that on the above date he was instructed by defendant Asoli "to grate a large slab of cheese with the Meat Grinder, in a modified manner... [which allowed] the machine [to spin] continuously... and... not automatically turn off" (see Amended Complaint, paras 32-33). The Amended Complaint further alleges that while plaintiff was doing so, "the Meat Grinder grabbed [his] right-hand fingers and part of his hand", causing extensive injuries (id. at 34). Plaintiff was subsequently taken to the hospital with a crush injury to his right hand. There, "his right middle and ring finger[s had to be] amputated... [,he] underwent a partial amputation of his right index finger... [and had to undergo] local tissue rearrangement to achieve wound closure" (id. at 46-48).
As a consequence of his injuries, plaintiff commenced this action against, inter alia, defendants Asoli and Trattoria, asserting multiple causes of action for negligence based on their failure to (1) adequately train and supervise plaintiff, (2) warn plaintiff of the inherent danger involved in, e.g., using the machine to grate cheese and (3) properly maintain the subject meat grinder. Plaintiff also asserted a cause of action for the intentional infliction of emotional distress against the individual defendant, Asoli, alleging that "[t]he Meat Grinder was known to have had ongoing problems, and was lacking in safety precautions sufficient to prevent the foreseeable dangers associated with its use and foreseeable uses and modifications" as e.g., a cheese grater (id. at 24). It is further alleged that defendants Asoli and Trattoria "had modified the Meat Grinder from its original configuration and instructed [Trattoria's] employees, including plaintiff, to operate the Meat Grinder in the modified configuration" to grate cheese, while "fail[ing] to warn [said employees, including plaintiff] that using the Meat Grinder... in [this] modified... [configuration] posed [a substantial] danger and [a] risk [of injury] to the... [operator] of the machine" (id. at 25,31).
In addition, plaintiff has asserted causes of action sounding in strict products liability, negligent design and failure to warn, against defendants Skyfood Equipment LLC (hereinafter "Skyfood") and E & A Supply, Inc (hereinafter "E & A"). To the extent relevant, Skyfood is alleged to be the distributor of the meat grinder in question, identified as a "PSE-12", which it sold to co-defendant E & A. The machine was subsequently sold by E & A, a restaurant equipment retailer, to plaintiff's employer (see Amended Complaint, paras 8-13).
As regards the aforementioned defendants, plaintiff maintains that Skyfood and E & A "knew or should have known that due to its dangerous nature and problems with its operation, the [subject] Meat Grinder as sold was not reasonably safe for the use intended[, which included grating cheese;] and that there were available alternative designs and components with sufficient and proper safety features that they failed to utilize in the design, manufacturing, distribution and sale of [said] Meat Grinder" (id. at 82). In addition, plaintiff has asserted a cause of action sounding in strict products liability as against these defendants based on the claim that the subject meat grinder was "not designed in such a way that it would maintain its integrity and... [lacks] sufficient shut off protection... [as well as] sufficient protection for [its] use as intended and [for] foreseeable uses" (id. at 83). Lastly, plaintiff alleges that each of the defendants was negligent in failing "to put Spanish language warning labels on the Meat Grinder" (id. at 105).
At his EBT, plaintiff testified that he began working as a dishwasher at Trattoria in 2012 under the direction of defendant Asoli (see EBT of Eucebio Dionisio Hernandez, p 56, 79). On the day of his accident, plaintiff maintained that he was instructed by his manager, Antonio Gamba, to "prepare [i.e., grate] the cheese" (id. at 126), at which point plaintiff just "grabbed another block of cheese, put it in the [grinding] machine, [and] put pressure on it". However, when the cheese appeared to get "stuck", and with "the machine... [still] on..., [plaintiff] put [his] hand inside... [to unstick] it" (id. at 141, 160). After the spinning blade caught his fingers (id. at 164), plaintiff disconnected the machine by kicking the plug out of the socket with his foot (id. at 165).
According to plaintiff, he had used a heavy piece of metal that was normally used for the pasta machine on top of the grinder to keep the machine running continuously (id. at 145-146), a practice which he allegedly had "seen [his] coworkers" use (id. at 154). However, after the accident, Gamba and the other workers told him that he had used the wrong piece of metal (id. at 154-155). When asked if he saw the disk spinning at the time he placed his right hand into the hopper, plaintiff testified "yes" (id. at 161). In this regard, plaintiff had previously testified that he had used the grinding machine "about three times" to grate cheese (id. at 74); that he learned how to use it by watching "other people" (id. at 100); that he had not been taught how to use the machine; that he was not given an operators manual; and that he was merely told to "be careful" (id. at 101, 108). Plaintiff further testified that while there were warning labels or stickers located on the right side of the machine, he could not read them (id. at 106-107).
At his deposition, defendant Vittorio Asoli testified that he had hired plaintiff as a dishwasher, and that he was later assigned to food preparation (see EBT of Vittorio Asoli, p 26). According to the witness, the meat grinding machine (a Fleetwood PSE-12) was purchased from E & A in May of 2011 (id. at 41-51, 158), after his brother had tested the machine using hard cheese and beef (id. at 57-59). However, upon being advised by an employee of E & A that the cheese grater attachment which Asoli had purchased separately over twenty years ago, was the same as the new one sold by "Fleetwood". Based on this advice, Asoli declined to buy the newer unit (id. at 61-63, 66, 83-84, 154-155).
When asked if he required every employee to read the manual for the grinding machine, Asoli answered in the negative (id. at 67-68). However, he stated that one of his two managers, either his brother or Antonio Gamba, would instruct employees on the proper use of the machine (id. at 69-70, 160). It was his understanding that plaintiff had been trained by one of these managers (id. at 140). When asked if he, his brother or Gamba had ever instructed the employees to use a piece of metal from the pasta machine or something of equal weight to keep the machine operating continuously when grating cheese, Asoli answered in the negative ( id. at 106-109). He also answered in the negative when asked if the machine had exhibited any operational problems or required repairs between the time of his purchase and the date of plaintiff's accident ( id. at 135). Additionally, the witness denied having knowledge of any prior accidents or complaints pertaining to said machine ( id.).
Asoli further testified that he learned about plaintiff's injury when he received a telephone call from Gamba (id. at 113-116). Upon arriving at the restaurant, he noted that plaintiff appeared non-responsive, so even though an ambulance had been called (id. at 116-117), Asoli escorted plaintiff to his own car and drove him to the hospital (id. at 120-123).
According to the witness, when he was using the grinder to grate cheese, he would shut off the machine if the cheese got stuck, and would "take... [his] hand from the machine, open up the lid and take... or [remove] whatever... [was causing the problem],...[,]put [the cheese] back [in the machine]... and turn [it] on again" (id. at 147, 169-170).
For his part, Antonio Gamba testified at his EBT that whenever the grating machine got stuck, he "turned off the switch...[and cleaned] it out" before restarting the machine (see EBT of Antonio Gamba, p 23). He further testified that there was a picture "on the side of the machine... explain[ing]... about working safety," and cautioning users to keep their hands clear of the machine while operating (id. at 32). According to the witness, he had taught plaintiff how to use the machine; explained to him that he was never to put his hands inside the machine while it was on; and to "always use two hands... [for] safe[ty]" (id. at 38, 42-43). Moreover, he claimed to have specifically instructed plaintiff "to cut the cheese, [into] small piece[s], always [with] the machine off. Open the cover for the cheese, put the pieces [in], close the cover [and w]ith the other hand, turn on the machine [using only o]ne finger" (id. at 52-53).
In addition, the witness testified that he had reprimanded plaintiff on at least two occasions for (1) using the grinding machine improperly, i.e., placing a piece of the pasta machine "on top" to keep it running continuously, and (2) putting his hand inside the running machine to remove a piece of cheese that had become stuck (id. at 54-61). When asked if other workers used the machine improperly, Gamba testified in the negative (id. at 60). He also denied knowledge of any prior issues or complaints pertaining to the machine (id. at 63). When told about plaintiff's accident, Gamba claimed to have run upstairs to tell the waiters to call for an ambulance (id. at 71). The next day, the witness contacted plaintiff, who is alleged to have said, "I know I made a big mistake" (id. at 78).
Presently before the Court are motions for summary judgment by each of the defendants seeking dismissal of the causes of action sounding in negligence and strict products liability.
In their combined motion for summary judgment, defendants Asoli and Trattoria assert as a ground for dismissal, the exclusivity provisions of Workers' Compensation Law §§11 and 29(6) apply. While conceding that plaintiff's injuries qualify as "grave" under the terms of section 11, these defendants contend that the statute only authorizes their joinder as third-party defendants.
Workers' Compensation Law §11 provides that "[a]n employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a "grave injury" which shall mean...the... loss of multiple fingers".
Defendants also submit the affidavit of a subrogation analyst for Rochdale Insurance, their workers' compensation carrier, who attests that "as of November 3, 2015, a total of $125,287.92 in workers' compensation benefits has been paid to [plaintiff] as a result of the April 26, 2012 incident" (see Affidavit of Julie Pettit).
The Workers' Compensation Law provides the exclusive remedy for an employee who seeks to recover damages for unintentional injuries sustained in the course of his or her employment (see Kruger v. EMFT, LLC, 87 AD3d 717, 718 [2nd Dept 2011]). Allegations that an employer merely exposed plaintiff to a substantial risk of injury have been held insufficient to circumvent the exclusivity of the remedy provided by the Workers' Compensation Law (id. at 837).
Accordingly, the motion to dismiss plaintiff's cause of action against Trattoria Romano, Inc. and Vittorio Asoli is granted and the complaint dismissed.
In their cross motions for summary judgment, the remaining defendants, Skyfood and E & A, rely upon the expert affidavit of one Dennis B. Brickman, P.E. (see Defendant Skyfood's Exhibit "S"). Based upon his review of the photographs of plaintiff's injuries, videos of the equipment inspection, discovery materials, deposition transcripts, pleadings and his May 26, 2015 inspection of both the subject meat grinder and a Hobart cheese grater, Brickman attests, in pertinent part, that "the PSE-12 meat grinder as sold by Skyfood was not defective; ... [and] was reasonably safe and not unreasonably dangerous for its intended uses" (see Affidavit of Dennis B. Brickman, para 6). However, defendants' expert acknowledged that "the PSE-12 meat grinder was designed and manufactured with a safety interlock on top of the motor housing which [ is intended to mate] with the pan of the meat grinder assembly[, and that] the presence of the pan ...is incompatible with the ... cheese grater attachment... used by the plaintiff,... due to physical constraints" Accordingly, the pan must be removed to attach the cheese grater assembly, a process which this expert opined constituted a "modifi[cation]" of the PSE-12 meat grinder by the user, "thereby eliminating the safety feature" which was designed so that removal of the pan would actuate "the safety interlock located on the top of the meat grinder [and] stop...the motor " (id. at 7 [emphasis added]). Moreover, in response to the contrary opinion offered by plaintiff's expert, Brickman argued that the proposed installation of an emergency stop switch on the front of the motor housing "was not required, was [equally] susceptible to bypass, and would not have prevented... plaintiff's accident... [,since the switch would] have been obscured by the cheese grater attachment" (id. at 14). Finally, Brickman opined that the meat grinder contained adequate on-product warnings which, if followed, would have prevented plaintiff's injury (id. at 13).
Defendant E & A adopts and incorporates all of the arguments and exhibits tendered in support of Skyfood's cross motion for summary judgment.
Thus, if the pan was removed and replaced by a metal object intended to insure continuous operation, the safety interlock would remain disengaged, thereby rendering it inoperative as a designed-in emergency stop feature.
In addition to this affidavit, the cross movants have attached copies of the warning labels located on the side of the grinder (see Defendant Skyfood's Exhibit "L"). Not only do these labels warn of the presence of "danger", and urge "caution" and "attention" when operating the machine, they also depict a hand being severed upon touching the rotating blade, and a further written warning cautioning users to "Keep hand and fingers out of the machine and away from rotating parts when the machine is working" ( id.). Notably, the instruction manual for the PSE-12 contains similar warnings, i. e., the need to "keep hands off turning parts" ( see Defendant Skyfood's Exhibit "K"), and further provides that the operator should "[n]ever use tools that do not belong to the machine during operation" ( id).
In the opinion of this Court, the pictogram depicting a severed hand upon touching the rotating blade is sufficient to cure any deficiency predicated on the lack of dual language warnings.
In opposition, plaintiff has submitted the affidavit of Eugene Camerota, P.E. Based on his review of, inter alia, the pleadings, photographs, deposition transcripts, an inspection of the accident location, the cheese grater attachment, the part of the pasta machine misappropriated by plaintiff, and the machine itself, Mr. Camerota opined that using the PSE-12 machine as a cheese grater was a "change [in] use", rather than a mere "modification" of the machine itself (see Affidavit of Eugene Camerota, para 5). In support, he noted that the "VSA9/VS9 cheese grater is a standardized... attachment universally available for the PSE-12 power unit", and that defendants "clearly [anticipated] the prospect of such separate uses" (id. at 5, 9). In addition, Camerota took issue with the reference by defendant's expert to the metal button at the top of the machine as a "safety interlock". According to Camerota, "[w]hen the metal grinder attachment, which is a large metal pan, is placed on the Machine, it keeps the metal button pressed down, so that the motor is continuously running, as long as the on/off toggle switch on the side of the Machine is switched to on". Therefore, it "does not make sense to call this a "safety switch" (id. at 7). Further, when the cheese grater is attached to the front of the machine, it does not engage the metal button so "... the operator must find some [other] method to press the metal button down so that the motor will run" (id. at 8). As a result, Camerota opined that the PSE-12 "was defectively designed [for operation with the instant cheese grater attached,] because it did not have a safety feature common to industrial and electrical machines , [i.e.,] a "kill switch... [or] safety switch" or [any] other override mechanism to stop the machine from running in the event of an accident". In addition, he noted that "this [type of] alternative design was easily available to the manufacturer" (id. at 14). Plaintiff's expert further maintained that if the kill switch had been located on the front of the machine, as opposed to the right-hand side of the back (an apparent reference to the toggle switch on the side of the housing ), plaintiff would have been able to reach and hit the kill switch (id. at 16-17). In conclusion, Camerota maintained that "[t]here was a wholesale failure by all the defendants [ including Sky and E & A ] to warn of the danger of [a forseeable] use of the Machine..., [i.e., the removal of] the ... grinder pan so that the Machine [c]ould operate continuously", as when grating cheese. Finally, he opined that the warning labels "did not meet industry standards" (id. at 27).
Generally, a person injured by an allegedly defective product may assert a claim against the manufacturer based on negligence or strict products liability, the latter cause of action being based on any one of the following: (1) a mistake in the manufacturing process, (2) improper design or (3) that the manufacturer did not provide adequate warnings regarding the use of the product (see Barclay v. Techno-Design, Inc., 129 AD3d 1117, 1118 [3rd Dept 2015] citing Liriano v. Hobart Corp, 92 NY2d 232 [1998]). Alternatively stated, liability for injuries caused by a defectively designed product will attach whenever a product, as designed, presents an unreasonable risk of harm to the user (id. at 1178).
Where a defective product is sold by a third-party in its normal course of business, the burden of strict liability has been imposed upon the seller or dealer, as well (see Gebo v. Black Clawson Co, 92 NY2d 387, 392 [1998]).
To be successful on a cause of action for defective design, a plaintiff must establish that the manufacturer breached its duty to market a safe product by placing into the stream of commerce a product whose design is not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury ( id.). However, the burden of proving that a product was not reasonably safe lies with the injured party, who must demonstrate both that it presented a substantial likelihood of harm and that it was feasible to design the product in a safer manner. On the other hand, the manufacturer may defeat the cause of action by demonstrating that the product's utility outweighs its risks, i. e., that the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product's inherent usefulness at an acceptable cost ( id. at 1179). This risk-utility analysis can become quite complicated, as it requires the consideration of multiple factors, including the product's utility to the public as a whole; its utility to the individual user; the likelihood that the product will cause injury; the availability of a safer design; the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced; the degree of awareness of the product's potential [for] danger that can reasonably be attributed to the injured user; and the manufacturer's ability to spread the cost of any safety-related design changes over the life of the product. Generally, a risk/utility analysis presents a factual question for the jury ( id. at 1179).
To prevail on a cause of action sounding in negligent design, a plaintiff must prove that the manufacturer failed to exercise reasonable care in designing the product in question (see Giunta v. Delta Intl Mach.,, 300 AD2d 350, 352 [2nd Dept 2002]). However, in this State, it has been held that the concepts of defective and negligent design are functionally synonymous with respect to the manufacturer of the product (id.). As a result, very little difference exists between establishing a prima facie case of negligent design and one for strict products liability based on defective design. In this respect, the questions of fact raised in this matter by ,e.g., the differences in opinion between the respective experts regarding the merit of the motions to dismiss plaintiff's causes of action sounding in strict products liability based on the allegations of defective and negligent design as against defendants Skyfood and E & A, preclude summary judgment (see Barclay v. Techno-Design, Inc, 129 AD3d 1117, fn 3 [3rd Dept 2015]).
Here, the experts sharply dispute the function and purpose of the metal button located on top of the meat grinder, and whether it constituted a safety lock or kill switch commensurate with industry standards. In addition, they disagree as to whether, e.g., the use of the grinder with the cheese grater attached constituted a mere modification or a change in use, warranting a re-design of the product. Both these and the other factual questions that may be raised regarding plaintiff's claim of strict products liability based upon allegations of a design defect and/or his causes of action for negligent design are matters for the jury to resolve at trial.
As a reflection of public responsibility, strict products liability should not be imposed upon a party whose role in placing the product in the stream of commerce is so peripheral to the manufacture and marketing of the product that it would not further the policy considerations which are the foundation for the imposition of this species of liability on manufacturers and retailers of a product readily capable of injuring its purchasers (see Nutting v. Ford Motor Co., 180 AD2d 122, 128-129 [3rd Dept 1992]). These policy considerations include "the ability of the seller, because of its continuing relationship with the manufacturer, to exert pressure on the latter to effect improvements in the safety of their products, and [to] recover [the] increased costs [these improvements might require] within [the context] their commercial dealings [inter se], or through [their assertion of causes of action for] contribution or indemnification in litigation". Additionally, by marketing the[se] products as a regular part of their business such sellers may be said to have assumed a special responsibility to the public, which has come to expect them to stand behind their goods" (id. at 129 [internal quotation marks omitted]). In addition, like considerations should be seen to subject like sellers to liability for negligent design (see Giunta v. Delta Intl Mach., 300 AD2d at 352 ). Based upon all of the relevant facts and circumstances, it is the opinion of this Court that defendants Skyfood and E & A have failed to demonstrate, prima facie, that they are not in the regular business of selling commercial food processing and restaurant equipment to entities such as Trattoria Romana. Accordingly, they have failed to carry their burden of proof on their motions for summary judgment dismissing plaintiff's causes of action in strict products liability and negligent design.
Thus, as a matter of public policy, the casual or occasional seller of a product has not been held to assume the special responsibility which considerations of public safety impose upon those in the business of regularly supplying or selling potentially dangerous products, nor do their activities implicate the corollary element of forced reliance thrust upon the purchasers of such goods by their makers (see Sukljian v. Ross & Son Co., 69 NY2d at 95). In this regard, it is relevant that Carmine Guerriero testified at his EBT on behalf of defendant E & A that in his capacity as a salesperson, he "sold whatever the house had [available] to sell" and advised defendant Asoli that he need not purchase a newer cheese grater attachment (see EBT of Carmine Guerriero, p 12). In addition, when asked if E & A provided training on the products that it sells to its customers, Guerriero testified that "[i]f training is required, the manufacturer's rep would be involved, and they would give the formal training" (id. at 32). According to Guerriero, "the manufacturer [typically] has an instruction manual sent with the piece... [so that] the instructions and warranty papers are there, with the piece of equipment in the box" (id.). --------
On the matter of warnings, "a manufacturer has a general duty to warn against latent dangers resulting from foreseeable uses of its product... [about] which it knew or should have known... [and] to warn users of the danger of [reasonably foreseeable] unintended uses of its product" (id. at 1180 citing Liriano v. Hobart, 92 NY2d at 237). While a manufacturer thus may be held liable for failing to warn against dangers of the foreseeable misuse of its product, there exists a limited class of hazards which, as a matter of law, need not be warned against because they are patently dangerous or pose open and obvious risks. Further, a manufacturer's duty to warn may be obviated where the injured party has actual knowledge of the specific hazard that caused the injury (id.). Accordingly, there is no duty to warn against an open and obvious danger of which the user is or should be aware as a result of ordinary observation or as a matter of common sense (see Torres v. City of New York, 127 AD3d 1163, 1167 [2nd Dept 2015]).
In this regard, it is worthy of note that in contrast to entities in the regular business of selling products of the type alleged to be defectively or negligently designed, casual sellers are not held subject to these claims. Nevertheless, they are duty-bound to warn the purchaser of any known defects that are not obvious or readily discernible (see Gebo v. Black Clawson Co, 92 NY2d 387, 393 [1998] citing Sukljian v. Ross & Son Co., 69 NY2d 89, 97 [1986]).
Here, the Court finds that defendants Vittorio Asoli, Trattoria Romana, Sky and E & A have established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging the failure to warn. In reaching this decision, the Court is convinced by the submission of a copy of the injured plaintiff's deposition testimony, in which he acknowledges being told to use caution when using the grinder to grate cheese; he failed to abide by the warning labels posted thereon; he had used the machine on at least three prior occasions and watched his co-workers use the machine; he had previously been reprimanded regarding his method of operation; and he admittedly saw the spinning disk at the time that he placed his hand into the hopper. Accordingly, defendants established, prima facie, that the alleged failure to warn was not a proximate cause of the accident (see Torres v. City of New York, 127 AD3d at 1167). In opposition, plaintiff has failed to raise a triable issue of fact.
Accordingly, it is
ORDERED that the motion for summary judgment by defendants Vittorio Asoli and Trattoria Romana, Inc are granted; and it is further
ORDERED that otherwise the complaint as against said defendants is severed and dismissed; and it is further
ORDERED that the cross motions for summary judgment by defendants Skyfood Equipment LLC and E & A Supply, Inc are granted with the exception of plaintiff's Fifth Cause of Action alleging strict products liability to the extent it is based on defective design and the Sixth Cause of Action alleging negligent design; and it is further
ORDERED that the complaint and any cross claims asserted against these defendants are severed and dismissed, with the exception of any cross claims predicated on plaintiff's allegations of strict products liability to the extent it is based on negligent design; and it is further
ORDERED that the remainder of the action shall proceed; and it is further
ORDERED that the Clerk enter judgment and mark his records accordingly.
ENTER, /s/ Philip G.Minardo J.S.C. DATED: March 28, 2016