Opinion
02-10658.
Decided April 28, 2004.
KEEGAN KEEGAN, Attorneys for Plaintiffs, Patchogue, NY 11722.
O'CONNOR, O'CONNOR et al., Attorneys for Defendant, Melville, NY 11747.
Upon the following papers numbered 1 to 31 read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers 1-21; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 22-28; Replying Affidavits and supporting papers 29-31; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that defendant's motion for summary judgment dismissing all claims against it is granted.
Plaintiff Annette Linborg commenced this action to recover damages for injuries she allegedly sustained on October 7, 2000, after she fell while exiting a camper manufactured by defendant Lance Camper Manufacturing Corporation (hereinafter Lance). Her husband, plaintiff Donald Linborg, sued derivatively for loss of services. The camper, known as the Legend 945, was owned by plaintiffs' neighbor and friend, Larry Gerreri, and was mounted to the bed of a pickup truck. Access to the interior was gained through a door located in the center of the camper's rear wall, and an exterior grab bar was mounted on the right side of the door frame. An 8½ inch rear bumper running the width of the camper was installed under the door frame, and a single folding step was affixed to the bumper underneath the door. The Court notes that it is undisputed that Lance did not manufacture either the bumper or the fold-down step, and that there were no labels affixed to the camper warning about accessing or exiting the vehicle.
Annette Linborg testified at an examination before trial that on the date of the accident she and her husband were camping in their trailer at Smith Point Park, and that Mr. Gerreri was camping at an adjoining site. She testified that when she went to visit with Mr. Gerreri she had difficulty climbing the steps leading into the camper, because the widths of the step and bumper were shorter than the length of her foot. Plaintiff, who stated she is 5'10", 300 lbs, and wears a size 11 shoe, testified that she had to turn her body and feet sideways when she stepped from the folding step to the bumper, and that Mr. Gerreri then helped her up as she came through the doorway. She testified that after visiting with Mr. Gerreri for approximately one hour, she prepared to exit the camper by turning her body sideways and bracing her hands against the doorway. She testified that she fell out of the camper and onto the ground when she went to put her left foot on the bumper "and it didn't make contact." When questioned further about the accident, plaintiff testified that she did not know how she actually fell, and that no part of her body made contact with either the bumper or the step when she fell. Finally, plaintiff testified that she had been inside the camper prior to the accident, when she and her husband went camping with Mr. Gerreri in 1998, and that she had difficulty entering and exiting the vehicle at that time.
The complaint asserts causes of action sounding in negligence, strict products liability and breach of warranty. More particularly, the bill of particulars alleges, among other things, that the camper was defective in that it "failed to provide proper adequate steps for egress," and that Lance was negligent in failing to warn users "to take precaution on the steps." In addition, a supplemental bill of particulars alleges that the design and manufacture of the camper violated certain standards for product safety signs and labels set by the American National Standards Institute.
Defendant now moves for summary judgment dismissing the claims against it on the grounds, inter alia, that there is no evidence that the camper was defective designed and that a failure to warn of the alleged dangerous condition on the steps was not a proximate cause of Annette Linborg's injuries. Plaintiffs oppose the part of the motion seeking to dismiss the products liability claim, arguing that issues of fact exist as to whether the camper was defectively designed and whether defendant failed "to warn of known dangers associated with entering and exiting" it. However, they do not oppose those parts of the motion seeking dismissal of the claims for negligence and breach of warranty. Summary judgment dismissing the causes of action for negligence and breach of warranty, therefore, is granted, as plaintiffs concede no issue of fact exists regarding these claims ( see, Kuehne Nagel v. Baiden, 36 NY2d 539, 369 NYS2d 667).
A manufacturer who places a defective product into the stream of commerce may be liable for injuries or damages caused by such product ( Gebo v. Black Clawson, 92 NY2d 387, 392, 681 NYS2d 221; Liriano v. Hobart Co., 92 NY2d 232, 235, 677 NYS2d 764; Amatulli v. Delhi Constr. Corp., 77 NY2d 525, 532, 569 NYS2d 337). Depending upon the factual circumstances, the injured party and those asserting derivative claims may bring a cause of action under the theories of strict products liability, negligence or breach of warranty ( see, Voss v. Black Decker Mfg. Co., 59 NY2d 102, 463 NYS2d 398). Whether an action is pleaded in strict products liability, negligence or breach of warranty, the plaintiff has the burden of establishing that a defect in the product was a substantial factor in causing the injury, and that the defect existed at the time the product left the manufacturer or other entity in the chain of distribution being sued ( see, Clarke v. Helene Curtis, Inc., 293 AD2d 701, 742 NYS2d 325 [2d Dept 2002]; Tardella v. RJR Nabisco, 178 AD2d 737, 576 NYS2d 965 [3d Dept 1991]; see also, Robinson v. Reed-Prentice Div., 49 NY2d 471, 426 NYS2d 717; Dickinson v. Dowbrands, Inc., 261 AD2d 703, 689 NYS2d 548 [3d Dept], lv denied 93 NY2d 815, 697 NYS2d 563; James v. Harry Weinstein, Inc., 258 AD2d 562, 685 NYS2d 471 [2d Dept 1999]).
Under the doctrine of strict products liability, a manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in causing the injury or damages, provided (1) that at the time of the occurrence the product is being used * * * for the purpose and in the manner normally intended, (2) that if the person injured or damaged is himself [or herself] the user of the product he [or she] would not by the exercise of reasonable care have both discovered the defect and perceived its danger, and (3) that by the exercise of reasonable care the person injured or damaged would not otherwise have averted [or her] injury or damages ( Codling v. Paglia, 32 NY2d 330, 342, 345 NYS2d 461; see, Amatulli v. Delhi Constr. Corp., supra). A product may be defective due to a mistake in the manufacturing process, an improper design, or a failure to provide adequate warnings regarding the use of the product ( Sprung v. MTR Ravensburg, 99 NY2d 468, 472, 758 NYS2d 271; Gebo v. Black Clawson Co., supra, at 392, 681 NYS2d 221; Liriano v. Hobart Co., supra, at 237, 677 NYS2d 764; Voss v. Black Decker Mfg. Co., supra, at 106-107, 463 NYS2d 398). A plaintiff in a strict products liability action is not required to prove the exact nature of the defect ( Caprara v. Chrysler Corp., 52 NY2d 114, 123, 436 NYS2d 251; Halloran v. Virginia Chems., 41 NY2d 386, 388, 393 NYS2d 341), and proof of liability may be established by direct or circumstantial evidence ( see, Speller v. Sears, Roebuck Co., 100 NY2d 38, 760 NYS2d 79; Pollack v. Toyota Motor Sales USA, 222 AD2d 766, 634 NYS2d 812 [3d Dept 1995]; Narciso v. Ford Motor Co., 137 AD2d 508, 524 NYS2d 251 [2d Dept 1988]).
A defectively designed product is one in 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 ( Robinson v. Reed-Prentice Div., supra, at 479, 426 NYS2d 717; see, Voss v. Black Decker Mfg. Co., supra; Bombara v. Rogers Bros. Corp., 289 AD2d 356, 734 NYS2d 617 [2d Dept 2001]). Stated differently, a defective product is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce ( Robinson v. Reed-Prentice Div., supra, at 479, 426 NYS2d 717; see, Denny v. Ford Motor Co., 87 NY2d 248, 639 NYS2d 250; Voss v. Black Decker Mfg. Co., supra). To establish a strict liability claim based on a defective design, a plaintiff must show the product as designed posed a substantial likelihood of harm, that it was feasible for the manufacturer to design the product in a safe manner, and that the defective design was a substantial factor in causing plaintiff's injury ( see, Voss v. Black Decker Mfg. Co., supra; Gonzalez v. Delta Intl. Mach. Corp., 307 AD2d 1020, 763 NYS2d 844 [2d Dept 2003]; Ramirez v. Sears, Roebuck Co., 286 AD2d 428, 729 NYS2d 503 [2d Dept 2001]).
As to the claim of strict liability based on Lance's failure to provide adequate warnings regarding the camper's steps, a manufacturer may be held liable for the failure to warn of the latent dangers resulting from the foreseeable uses of its product which it knew or should have known ( see, Liriano v. Hobart Co., supra; Rastelli v. Goodyear Tire Rubber Co., 79 NY2d 289, 582 NYS2d 373). Liability may be imposed based on either the complete failure to warn of a particular hazard or the inclusion of warnings that are inadequate ( see, DiMura v. City of Albany, 239 AD2d 828, 657 NYS2d 844 [3d Dept 1997]; Johnson v. Johnson Chem. Co., 183 AD2d 64, 588 NYS2d 607 [2d Dept 1992]). However, a manufacturer has no duty to warn product users of dangers that are obvious, readily discernable or apparent ( see, Martino v. Sullivan's of Liberty, 282 AD2d 505, 722 NYS2d 884 [2d Dept 2001]; Pigliavento v. Tyler Equip. Corp., 248 AD2d 840, 669 NYS2d 747 [3d Dept], lv dismissed in part, denied in part 92 NY2d 868, 677 NYS2d 773; Lonigro v. TDC Elec., 215 AD2d 534, 627 NYS2d 695 [2d Dept 1995]). The duty to warn of a specific hazard also does not arise if the injured person, through common knowledge or experience, already is aware of such hazard ( see, Warlikowski v. Burger King, ___ AD3d ___, 773 NYS2d 93 [2d Dept 2004]; Banks v. Makita, U.S.A., 226 AD2d 659, 641 NYS2d 875 [2d Dept 1996]; Payne v. Quality Nozzle Co., 227 AD2d 603, 643 NYS2d 623 [2d Dept], lv denied 89 NY2d 802, 653 NYS2d 279; Schiller v. National Presto Indus., 225 AD2d 1053, 639 NYS2d 217 [4th Dept 1996]; Van Buskirk v. Migliorelli, 185 AD2d 587, 586 NYS2d 378 [3d Dept], lv denied 80 NY2d 761, 592 NYS2d 670).
"Failure to warn liability is intensely fact-specific," involving issues such as the obviousness of the risk, the knowledge of the product user, and proximate cause ( Liriano v. Hobart Corp., supra, at 243, 677 NYS2d 764; see, Brady v. Dunlop Tire Corp., 275 AD2d 503, 711 NYS2d 633 [3d Dept 2000]; Rogers v. Sears, Roebuck Co., 268 AD2d 245, 701 NYS2d 359 [1st Dept 2000]). Nevertheless, a court can decide as a matter of law that there was no duty to warn or that the duty was discharged ( see, Passante v. Agway Consumer Prods., 294 AD2d 831, 741 NYS2d 624 [4th Dept], appeal dismissed 98 NY2d 728, 749 NYS2d 478; Silveira Dias v. Marriott Intl., 251 AD2d 367, 674 NYS2d 78; Schiller v. National Presto Indus., supra; Jackson v. Bomag GmbH, 225 AD2d 879, 638 NYS2d 819 [3d Dept], lv denied 88 NY2d 805, 646 NYS2d 985; Oza v. Sinatra, 176 AD2d 926, 575 NYS2d 540 [2d Dept 1991]). As with a claim of design defect, a plaintiff alleging liability based on a failure to warn must establish that the manufacturer had a duty to warn and that the failure to warn was a substantial cause of the event which produced the injuries ( see, Banks v. Makita, U.S.A., supra; Billsborrow v. Dow Chem., 177 AD2d 7, 579 NYS2d 728 [2d Dept 1992]).
Here, Lance met its burden on the motion by coming forward with admissible evidence, namely plaintiff's deposition testimony, showing that its product was not a proximate cause of the accident ( see, Castro v. Delta Intl. Mach. Corp., 309 AD2d 827, 766 NYS2d 65 [2d Dept 2003]; Clarke v. Helene Curtis, Inc., supra; Villariny v. Aveda Corp., 264 AD2d 415, 693 NYS2d 446 [2d Dept 1999]; see also, Brown-Phifer v. Cross County Mall Multiplex, 282 AD2d 564, 723 NYS2d 393 [2d Dept], lv denied 96 NY2d 721, 733 NYS2d 373; Robinson v. Lupo, 261 AD2d 525, 690 NYS2d 640 [2d Dept 1999]). In addition, Lance established prima facie that, at the time the camper was manufactured, the bumper and fold-down step were in the condition reasonably contemplated by consumers, that they were reasonably safe for their intended uses, and that there are no laws or regulations regarding bumpers or steps on campers ( see, Martinez v. Roberts Consol. Indus., 299 AD2d 399, 749 NYS2d 279 [2d Dept 2002]; Aghabi v. Sebro, 256 AD2d 287, 681 NYS2d 333 [2d Dept 1998]; Pigliavento v. Tyler Equip. Corp., supra; Fallon v. Clifford B. Hannay Son, 153 AD2d 95, 550 NYS2d 135 [3d Dept 1989]). It also established that the hazard allegedly posed by the two steps was known to plaintiff at the time of her accident( see, Scarangella v. Thomas Built Buses, 93 NY2d 655, 695 NYS2d 520; Smith v. Stark, 67 NY2d 693, 499 NYS2d 922; Warlikowski v. Burger King, supra).
The burden, therefore, shifted to plaintiffs to produce evidentiary proof in admissible form sufficient to establish a material issue of fact as to whether the alleged defect in the camper was a substantial factor in causing Annette Linborg's injuries ( see, Speller v. Sears, Roebuck Co., supra; Voss v. Black Decker Mfg. Co., supra; Sideris v. Simon A. Rented Servs., 254 AD2d 408, 678 NYS2d 771 [2d Dept 1998]; see generally, Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923). Plaintiffs rely on affidavits by Annette Linborg and Peter Sarich, who purports to give expert opinion regarding Lance's duty to warn, to defeat summary judgment. Mr. Sarich, a former building inspector for the Village of Patchogue, presently is employed as a Safety Inspector with the New York State Department of Labor. The affidavit by Mr. Sarich states that his conclusions are based on his review of photographs of the camper, his examination of "the Lance campers owners manual," and the deposition testimony of Annette Linborg and James Fowler, the Product Development Manager for Lance. After alleging various violations of the standards adopted by the American National Standards Institute for labeling potential or actual hazards, Mr. Sarich's affidavit concludes "[h]ad the subject camper been properly labeled it would have allowed the plaintiff to take appropriate action before `exiting' the camper to ensure for a safe return to ground level."
To establish the reliability of an expert's opinion, the party proffering that opinion must demonstrate that the expert possesses the requisite skill, training, education, knowledge or experience to render the opinion ( see, Matott v. Ward, 48 NY2d 455, 423 NYS2d 645; Pignataro v. Galarzia, 303 AD2d 667, 757 NYS2d 76 [2d Dept 2003]; Hofman v. Toys "R" Us, 272 AD2d 296, 707 NYS2d 641 [2d Dept 2000]). Further, opinion evidence must be based on facts in the record or personally known to the witness ( Cassano v. Hagstrom, 5 NY2d 643, 187 NYS2d 1). Here, plaintiffs failed to establish that Mr. Sarich is qualified to give expert opinion relevant to the alleged defects in Mr. Gerreri's recreational vehicles ( see, Martinez v. Roberts Consol. Indus., supra; Phillips v. McClennan St. Assocs., 262 AD2d 748, 691 NYS2d 598 [3d Dept 1999]; Goldman v. County of Nassau, 170 AD2d 648, 567 NYS2d 360 [2d Dept 1991]; Paciocco v. Montgomery Ward, 163 AD2d 655, 557 NYS2d 997 [3d Dept 1990], lv denied 77 NY2d 808, 570 NYS2d 488). Mr. Sarich's affidavit also lacks evidentiary value, as his conclusions are not based on an inspection of the camper, industry-wide standards, or scientific data, but on his review of the parties' deposition testimony, an unidentified owner's manual and photographs which are not in the record ( see, Sawyer v. Dreis Krump Mfg. Co., 67 NY2d 328, 502 NYS2d 696; Banks v. Freeport Union Free School Dist., 302 AD2d 341, 753 NYS2d 890 [2d Dept 2003]; Davidson v. Sachem Cent. School Dist., 300 AD2d 276, 751 NYS2d 300 [2d Dept 2002]; Cassano v. Hagstrom, supra; see also, Trojahn v. O'Neill, ___ AD3d ___, 773 NYS2d 99 [2d Dept 2004]; Martinez v. Roberts Consol. Indus., supra). Further, his vague, speculative and conclusory assertion that a warning label regarding the stairs "would have allowed plaintiff to take appropriate action" before exiting the camper is insufficient to defeat summary judgment ( see, Trojahn v. O'Neill, supra; Hartman v. Mountain Val. Brew Pub, 301 AD2d 570, 754 NYS2d 31 [2d Dept 2003]). Thus, Mr. Sarich's affidavit failed to raise an issue as to the existence of a defect or the proximate cause of plaintiff's injuries ( see, Amatulli v. Delhi Constr. Corp., 77 NY2d 525, 569 NYS2d 337; Houlihan v. Morrison Knudsen Corp., 2 AD3d 493, 768 NYS2d 495 [2d Dept 2003]; Aghabi v. Sebro, supra; Rodriguez v. Davis Equip. Co., 235 AD2d 222, 651 NYS2d 528 [1st Dept 1997]; see also, Pollack v. Fitzgerald's Driving School, 272 AD2d 595, 708 NYS2d 165 [2d Dept 2000]; Phillips v. McClellan St. Assocs., supra; cf., Voss v. Black Decker Mfg. Co., supra; Ganter v. Makita, U.S.A., 291 AD2d 847, 737 NYS2d 184 [4th Dept 2002]).
Finally, as stated earlier, plaintiff's testimony at her examination before trial reveals that she fell after her left foot "failed to make contact" with the bumper and that she did not know how she actually fell. Plaintiff's affidavit in opposition to the motion, however, alleges "had there been warning signs posted on the camper which expressed the dangers associated with entering and exiting the subject camper I would have asked for help getting out or never have entered in the first place," and "[h]ad a warning been present I would have simply asked the owner to exit first and help be descend the steps." The Court finds that these speculative allegations were designed to avoid the consequences of plaintiff's earlier admissions and failed to create a triable factual issue ( see, Sosna v. American Home Prods., 298 AD2d 158, 748 NYS2d 548 [1st Dept 2002]; see also, Curran v. Esposito, 308 AD2d 428, 764 NYS2d 209 [2d Dept 2003]; Garvin v. Rosenberg, 204 AD2d 388, 614 NYS2d 190 [2d Dept 1994]). In any event, it is undisputed that plaintiff, who had entered Mr. Gerreri's camper on a previous occasion, was aware of the alleged hazard ( see, Dickinson v. Dowbrands, Inc., 216 AD2d 703, 689 NYS2d 548 [3d Dept], lv denied 93 NY2d 815, 697 NYS2d 563; Mayorga v. Reed-Prentice Packaging Mach. Co., 238 AD2d 483, 656 NYS2d 652 [2d Dept 1997]; Lonigro v. TDC Elec., 215 AD2d 534, 627 NYS2d 695 [2d Dept 1995]; Van Buskrick v. Migliorelli, 185 AD2d 587, 586 NYS2d 378 [3d Dept], lv denied 80 NY2d 761, 592 NYS2d 670).