Opinion
Index No. 152085/2014
04-02-2024
Crocifissa Ardi, Plaintiff, v. Matthew Miller, JENNIFER IZZO, MICHELLE SEMDER, PAUL SEMDER, CHRISTOPHER CAHALIN, CASEY O'CONNER, ANNMARIE BARNES, WILLIAM BARNES, BMW OF NORTH AMERICA, LLC, BMW MANUFACTURING CO., LLC, BMW GROUP, INC., BAYERISCHE MOTOREN WERKE AG A/K/A BMW AG and BMW GROUP, PRESTIGE MOTORS INC., PRESTIGE BMW and ABC COMPANY (A FICTITIOUS ENTITY), Defendants.
Movant Defendant: Joseph Kim, Esq. Biederman Hoenig Semprevivo, A Professional Corporation Attorneys for Defendants BMW of North America, LLC, Baterische Motoren Werke AG, BMW Manufacturing Co., LLC, Prestige Motors, Inc. and Prestige Motorwerks, Inc. d/b/a Prestige BMW Joseph.Kim@lawbhs.com Attorneys for Plaintiff Crocifissa Ardi Joseph D. Monaco, Esq. The Law Office of Joseph Monaco, PC jmonaco@monaco-law.com Attorneys for Defendant Jennifer Izzo Noel Munier, Esq. Law Office of Noel Munier
Unpublished Opinion
Movant Defendant: Joseph Kim, Esq. Biederman Hoenig Semprevivo, A Professional Corporation Attorneys for Defendants BMW of North America, LLC, Baterische Motoren Werke AG, BMW Manufacturing Co., LLC, Prestige Motors, Inc. and Prestige Motorwerks, Inc. d/b/a Prestige BMW
Joseph.Kim@lawbhs.com Attorneys for Plaintiff Crocifissa Ardi Joseph D. Monaco, Esq. The Law Office of Joseph Monaco, PC jmonaco@monaco-law.com Attorneys for Defendant Jennifer Izzo Noel Munier, Esq. Law Office of Noel Munier
JAMES G. CLYNES, J.
The following e-filed documents, listed by NYSCEF document number (Motion 014) 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 382, 383, 384, 385, 386 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER).
Plaintiff Crocifissa Ardi brings this action to recover damages for personal injuries sustained in a multi-vehicle accident that occurred in September 2013 in Suffolk County. Defendants Bayerische Motoren Werke AG a/k/a BMW AG (BMW AG), BMW of North America, LLC (BMW NA), BMW Manufacturing Co., LLC (BMC MC), Prestige Motors, Inc. and Prestige Motorwerks, Inc. d/b/a Prestige BMW (together, Prestige) (collectively, the BMW Defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint.
Background
A. The Accident
The subject accident occurred at approximately 10 p.m. on September 11, 2013 on Nicolls Road just south of the overpass for the Long Island Expressway (LIE) near the "cloverleaf" interchange (NY St Cts Elec Filing [NYSCEF] Doc No. 349, plaintiff's response to BMW Defendants' statement of material facts, ¶ 11). The area on Nicolls Road where the accident occurred consists of two lanes for traffic moving northbound with additional traffic merging onto Nicolls Road from an exit ramp off the eastbound LIE. This same merging lane also serves as an exit lane for traffic exiting Nicolls Road for the westbound LIE.
At the time of the accident, plaintiff was the operator of a 2004 BMW X5/E53 motor vehicle (the Vehicle) in which her son, Christopher Scalone (Scalone), was a front seat passenger (NYSCEF Doc No. 349, ¶¶ 1 and 10). The Vehicle was designed by BMW AG, assembled by BMW MC, and distributed by BMW NA (id., ¶¶ 2-4). Plaintiff's brother purchased the Vehicle as a new vehicle from Prestige, and later gave it to their father, Eugene Santorufo (id., ¶¶ 5-6). The Vehicle was registered to their mother, Caterona Santorufo (NYSCEF Doc No. 310, Joseph Kim [Kim] affirmation, exhibit 1, ¶ 52). The subject Vehicle did not have any mechanical issues prior to the date of the accident (NYSCEF Doc No. 349, ¶ 8).
The accident occurred when the Vehicle was struck in the rear by a Toyota Prius driven by defendant Annmarie Barnes and owned by defendant William Barnes (together, the Barneses) while both vehicles were traveling northbound on Nicolls Road (NYSCEF Doc No. 349, ¶ 29; NYSCEF Doc No. 322, Kim affirmation, exhibit 13, Barnes tr at 12). The rear end impact caused the Vehicle to spin and strike the rear of a Toyota Solara operated by defendant Michelle Semder and owned by defendant Paul Semder (together, the Semders) before the Vehicle came to a stop against defendant Casey O'Conner's (O'Conner) vehicle, which had been parked partially within the right lane and the merging lane (NYSCEF Doc No. 349, ¶¶ 14, 16-17, 25, 32, and 39; NYSCEF Doc No. 318, Kim affirmation, exhibit 9, Scalone tr at 114). After the initial front-end impact with the Vehicle, the Prius struck the rear bumper of a Chevy Cavalier owned and operated by defendant Christopher Cahalin (Cahalin) (NYSCEF Doc No. 325, Kim affirmation, exhibit 16, Cahalin tr at 30 and 44-45). Prior to the collisions, above, O'Conner had stopped her vehicle to assist a motorcyclist, later identified as defendant Matthew Miller (Miller), who had earlier collided with the rear of a coach bus in the merging lane (NYSCEF Doc No. 349, ¶¶ 21 and 23; NYSCEF Doc No. 320 at 36 and 39-40). Miller had purchased the motorcycle from defendant Jennifer Izzo (Izzo) (NYSCEF Doc No. 349, ¶¶ 49-50).
Miller is alleged to have been one of several motorcyclists seen weaving in and out of northbound traffic at a high rate of speed on Nicolls Road just prior to the accident (NYSCEF Doc No. 349, ¶¶ 22, 30, 33). It is unclear whether Miller has been served or ever appeared in this action.
At her deposition, plaintiff testified that she could not recall if she had ever driven the Vehicle before the accident (NYSCEF Doc No. 316, Kim affirmation, exhibit 7, plaintiff tr at 49 and 54). She could not recall how to adjust the driver's seat in the Vehicle or if she had adjusted it before the accident (id. at 62-63). She recalled that she was wearing her seat belt (id. at 64). Scalone testified that both his seat and his mother's seat "were both fully reclined" after the accident (NYSCEF Doc No. 318 at 109). According to her hospital records, plaintiff weighed 124 kilograms, or 273.4 pounds, on September 12, 2013 (NYSCEF Doc No. 349, ¶ 19; NYSCEF Doc No. 317, Kim affirmation, exhibit 8). Plaintiff, then 53 years of age, was rendered a quadriplegic (NYSCEF Doc No. 356, Monaco affirmation, exhibit F at 1).
Nonparty David R. Schreiber (Schreiber) of the Holtsville Fire Department responded to the accident. Schreiber testified that nonparty Donald Chung (Chung), an EMT, made the decision to remove plaintiff from the Vehicle from the driver's side (NYSCEF Doc No. 352, Joseph D. Monaco, III [Monaco] affirmation, exhibit B, Schreiber tr at 35 and 59). Because of plaintiff's large size, Schreiber made the decision to use the "jaws of life" and hydraulic cutters to expand the opening to extricate plaintiff from the Vehicle by removing the front and rear doors and the B post column (id. at 57). Schreiber did not observe whether plaintiff was wearing her seatbelt at the time nor did he note her position inside the Vehicle (id. at 65-66, 75 and 105). A notarized statement sworn to March 9, 2014 from nonparty Adam J. Scalafani (Scalafani) of the Holtsville Fire Department reads that Scalafani personally observed the Vehicle's driver wearing a seatbelt and that Scalafani determined the seatbelt had to be cut to extricate the driver (NYSCEF Doc No. 353, Monaco affirmation, exhibit C). Chung's notarized statement sworn to March 9, 2014 states that when he arrived at the accident location, he observed the driver's seatback was reclined with the driver in the seat (NYSCEF Doc No. 354, Monaco affirmation, exhibit D).
B. The Driver's Seat in the Subject Vehicle
An inspection of the Vehicle's driver's and front passenger seats without their upholstery and cushioning was conducted after the accident, and information was retrieved from the Vehicle's onboard computer.
Ingmar Hailer (Hailer), a witness for BMW AG, was involved in the design and testing of the seat platform while working for Leer, the company that provided seats for the E53/X5 model; the same seats were used across the E53 platform from 2000 through 2006 (NYSCEF Doc No. 331, Kim affirmation, exhibit 22, Hailer tr at 48 and 69). Hailer described the subject seat as a pushrod recliner (id. at 51). The metal pushrod served two purposes. First, the "pushrod is the connection between the engine or the gearbox of the recliner to the recliner" (id. at 55). Second, the pushrod is "designed to absorb energy in the rear crash" by deformation, or by bending outward (id. at 55 and 57). A metal bracket affixed to the side of the seat controlled the outward bend of the pushrod and was designed to prevent further bending from the side in an accident (id. at 56 and 121). There was no specification from BMW AG on how far the pushrod was allowed to bend "[b]ecause it's the 60 degrees of deflection of the seatback, it's defining the deflection of the pushrod" (id. at 76-77).
Hailer explained that BMW AG required Leer to perform certain tests on its seats and specified how it wanted the seat to perform (id. at 146). These specifications included a requirement that an occupant's hips remain as close to the seat as possible and a requirement that the seat not break (id. at 148-149). The tests performed included Federal Motor Vehicle Safety Standard (FMVSS) 301 and 301R tests. Although the FMVSS 301 test pertained to testing fuel tanks for leakages in a rear end collision, BMW used the test to "validate" the seat system (id. at 7-8) because that test "is the most severe crash [test] worldwide for [a] rear crash collision" (id. at 185). In this test, a "pulse" replicates a rear end collision at 80 kilometers with test dummies occupying the seat (id. at 13 and 65). The dummies included a female dummy in the fifth percentile weighing 48 kilograms, a male dummy in the 50th percentile weighing 78 kilograms, and a male dummy in the 95th percentile weighing 103 or 104 kilograms (id. at 13 and 157). Hailer explained that the allowable rearward seatback deflection is 60 degrees to vertical (id. at 18), which was a measure set by BMW AG since there were no government standards imposing a standard of allowable seatback deflection (id. at 184-185). Only the results of the seatback deflection for tests with the 50th percentile dummy are used to determine whether the seat passed the FMVSS 301 test (id. at 21). Hailer stated that FMVSS 208 sets forth certain injury criteria, and tests run on the seat with a 50th percentile dummy yielded results far below the injury threshold (id. at 178-179 and 185). Tests run with the 95th percentile dummy analyzed the seat structure to determine if the structural steel would crack and whether the dummy would remain in the seat (id. at 19-20). Hailer stated that BMW's specifications did not require Leer to measure the seatback deflects for tests using the 95th percentile dummy, though he did not know why (id. at 15). In tests with the 95th percentile dummy, the seat did not fail because the seat structure did not crack and the pushrod worked (id. at 158). Hailer testified that in plaintiff's case, the deformation of the pushrod to absorb energy from the impact meant that the seat performed as expected and designed and that the seat did not fail (id. at 116). Scalone's front passenger seatback also deformed backwards, and the pushrod of his seat was bent (NYSCEF Doc No. 349, ¶ 72).
Hailer admitted that designing a seat to incorporate a stiffer pushrod that would not bend or deform was feasible but doing so was not possible "[b]ecause we have to meet our requirements of 60 degrees with 50th percentile dummy. That's the one point. And the other point is to avoid cracks in the structure" (NYSCEF Doc No. 331 at 117-118). Hailer explained that designing a seat to incorporate a stronger or stiffer pushrod would cause other components in the seat system, specifically the side member of the backrest, to crack, thereby causing the entire seat system to fail in a rear end collision (id. at 119-120 and 122). In addition, Hailer stated that it was not feasible to design a seat where the tracks for the seat, rather than the seatback, absorbed the kinetic energy from a rear end impact because doing so could affect the seat's performance in a front-end impact (id. at 126-127). Hailer testified that in a front-end impact, the upper part of the seat track could disengage from the lower part of the seat or the track (id. at 127).
Peter Baur (Baur), a manager of product analysis for BMW NA, testified that BMW does not manufacture the front seats in its vehicles (NYSCEF Doc No. 334, Kim affirmation, exhibit 25, Baur tr at 13). Baur testified that he inspected the driver's seat of the Vehicle after the accident and assisted in downloading information from the Vehicle's air bag control system (id. at 38). At the inspection, Baur observed that "the seatback link with the bottom of the seat was bent in order to dissipate [kinetic] energy" (id. at 39-40). Baur explained that in a rear end impact, the target vehicle accelerates, and the seat occupant's torso moves forward while the seat is pushed backwards (id. at 41-42). Different components and mechanisms built into the seat offer "support to bend to make... [for a] less violent acceleration" (id. at 43). Baur identified the pushrod of the driver's seat as the component that bent and stated that the pushrod was designed to bend in rear end impacts (id. at 43-44). Baur did not observe any components of the seat that were broken after the seat had been degloved (id. at 46).
Baur explained that generally, a seat belt pretensioner, a system that "pulls the slack out of the seat belt," is activated once a certain value is reached in the algorithm programmed into the Vehicle's airbag control unit (id. at 52-53). By pulling the slack out of the seatbelt, the occupant in a rear end impact "connects... more to the seat cushion" to reduce "ramping" (id. at 53-54). Ramping occurs when a seat occupant slides backwards or up the seatback towards the rear of a vehicle (id. at 54). A seat occupant must wear and latch the seatbelt for the pretensioner to deploy (id. at 55-56). A vehicle's onboard computer will also record whether a seatbelt is worn (id. at 56). Baut testified that in this instance, the Vehicle's computer recorded that the driver's and front passenger's seatbelts were "not inserted" (id. at 60). This meant the seatbelt pretensioners did not fire because the seatbelts were not in use even though the computer had calculated the threshold had been reached (id. at 66 and 69-71). Baur also testified that the computer recorded the Vehicle's speed at 10 kilometers per hour before the collision, although "it is not precisely defined at what time during the crash that 10 kilometers per hour happened" (id. at 62). Baur stated that the speed may have been recorded seconds or milliseconds before the impact, which "is a relatively wide time span when it comes to accident analysis" (id.).
An FMVSS 301 test conducted on January 23, 2001 involved moving a 4,000 pound barrier into the rear of a BMW X5 vehicle at 31 miles per hour (NYSCEF Doc No. 349, ¶ 56). The vehicle experienced a delta-V of 14 to 15 miles per hour (id.). An FMVSS 301R test conducted on November 2, 2002 involved moving a 3,000 pound barrier at 50 miles per hour to the rear right side of a BMW X5 vehicle (id., ¶ 57). The impact yielded a delta-V of 20 miles per hour (id.).
Procedural History
Plaintiff commenced the present action in March 2014. She has since discontinued her claims against the Barneses and O'Conner (NYSCEF Doc No. 286). Cahalin, the Semders, and Izzo have been granted summary judgment (NYSCEF Doc Nos. 261, 281 and 388). The sole remaining defendants are Miller and the BMW Defendants.
Scalone has brought a separate action captioned Scalone v Miller et al., Sup Ct, NY County, index No. 157578/2016, in which BMW NA and Prestige have also moved for summary judgment.
As against the BMW Defendants, plaintiff pleads two causes of action for strict products liability and negligence based on defects in the design and manufacture of the BMW, a failure-to- warn, and a breach of express and implied warranty. Plaintiff alleges that the driver's seatback failed to maintain an upright position after the collision and, as a result, plaintiff was not held in place by the seatbelt in the Vehicle, thereby causing her injury (NYSCEF Doc No. 310, ¶¶ 62-63).
The Parties' Contentions
The BMW Defendants now move for summary judgment dismissing the complaint on four grounds. First, they contend that the Vehicle's front seats were not defective as designed, manufactured and sold. Second, they assert that the alleged failure-to-warn was not a proximate cause of the accident. Third, the BMW Defendants submit that the breach of warranty claims fail because the subject Vehicle was fit for its intended, ordinary purpose and because plaintiff failed to identify a specific warranty provision that was allegedly breached. Submitted in support are deposition transcripts, certified records from the Suffolk County Police Department, and an affidavit from its expert, research engineer Gregory A. Stephens (Stephens) who specializes in transportation accident analysis and reconstruction (NYSCEF Doc No. 340, Kim affirmation, exhibit 31 at 6).
Plaintiff argues the affidavit is inadmissible because it lacks a certificate of conformity (CPLR 2309 [c]). This is a mere irregularity (see Sebrow v Sebrow, 205 A.D.3d 563, 564 [1st Dept 2022]) that the BMW Defendants have corrected in reply (see Khurdayan v Kassir, 223 A.D.3d 590, 591 [1st Dept 2024]).
Stephens describes the subject driver's seat as a dual-sided linear recliner that was engineered with stamped steel seatbacks and cushion frames (NYSCEF Doc No. 308, Stephens aff, ¶ 6). The seat is designed to absorb kinetic energy from rear end impacts by yielding rearward under substantial occupant loading (id., ¶ 7), with deformation of the two steel recliners on either side of the seat just one of the mechanisms by which kinetic energy is absorbed (id., ¶ 8). He states that rearward yielding of the seatback is an accepted form of energy collision management (id., ¶ 9). Stephens opines that the seat, as designed, demonstrates good and reasonable engineering considerations based on his review of the results from the FMVSS 301 and FMVSS 301R rear impact crash tests of the E53 model vehicle (id., ¶ 10). Stephens noted that the significance of BMW using a 50th percentile male anthropometric test device (ATD), as required by the NHTSA and the FMVSS, was to accommodate "the widest range of the driving population" (id., ¶ 17). BMW applied the biomechanical injury thresholds specified in FMVSS 208 because FMVSS 301 did not set its own injury thresholds (id., ¶ 16). The results demonstrated that the ATDs "show[ed] excellent responses, with a ride margin from the FMVSS [208 injury] thresholds" (id., ¶ 20), and video of the FMVSS 301R test "show[ed] good ride down of the seatback and seat performance with no observable ramping by the [ATDs]" (id., ¶ 22).
On July 28, 2020, Stephens conducted a modified FMVSS 207-type test in which he applied increasing levels of force topping out at 1,094 pounds to an exemplar driver's seat (id., ¶ 24 and 26). Stephens observed that "[t]he resultant seatback moment strength, utilizing the standard 14-inch elevation, of approximately 15,316 inch-pounds, is in the upper half of seat strengths as compared to all CRA tested seats... in the 1978-to-2004-year range" (id., ¶ 26). The outboard and inboard sides of the seats revealed a maximum dynamic deformation of 35 and 38 degrees, respectively, and a permanent static deformation of 22.5 and 25 degrees, respectively (id., ¶ 27). Deformation of the lower seatback frame and inboard and outboard recline arms was similar to the driver's seat in the Vehicle (id., ¶ 28). A rear impact sled test performed by the Insurance Institute of Highway Safety of the 2005 X5 driver's seat with a Bio-RID II ATD occupant showed 8 degrees of plastic deformation and no ramping of the ATD (id., ¶ 29). Stephens concludes that the benefits of the subject seat's design far outweighed the risks that may be associated with the design and that the front seats were safe, not defective, and were not unreasonably dangerous (id., ¶¶ 30-32).
Stephens does not explain what "CRA" means or the parameters of an "FMVSS-207" test.
As regards the accident, Stephens calculated the delta-V, which is a measure of crash severity, in the upper 20-mph range, indicating that the accident involved a very severe impact that impacted 2 ½ times as much energy to the front seat than in the most severe FMVSS 301R rear impact test (id., ¶¶ 34 and 36). Stephens also inspected the front seats of the Vehicle, detrimmed of its upholstery, and noted that the front seatback deformed rearward and the dual-recliners deformed from absorbing the kinetic energy in the collision (id., ¶ 39). None of the seatback components were broken, which was in accordance with BMW's requirements (id.). Stephens concludes that he knows of no seatback design that could have kept plaintiff free from all risk of injury (id., ¶ 40). Stephen opines that designing a seatback to accommodate plaintiff, who weighs more than the 95th percentile ATD, for this rear end collision, which is more severe than 95% of all rear end collisions, is not reasonable because it would increase the likelihood of injury to occupants smaller than plaintiff involved in less severe collisions, both of which are more statistically probable (id., ¶¶ 43-44). Stephens further opines that "[m]ultiple impacts [as is the case here] have been shown to substantially increase the risk of severe injury and complicate the energy management features of this and many other safety systems" (id., ¶ 46).
Plaintiff counters that issues of fact as to whether the front seats were defectively designed preclude granting summary judgment. On this point, plaintiff proffers an affidavit from licensed engineer Joseph R. Yannaccone, P.E. (Yannaccone), who is experienced in evaluating occupant protection in various types of vehicles (NYSCEF Doc No. 358, Monaco affirmation, exhibit H, aff of Yannacone ¶ 3). Yannaccone reviewed numerous records from the accident and conducted a post-accident inspection of the front seats of the Vehicle and an exemplar seat from a 2004 X5 model.
Yannaccone likens a seatback to a seatbelt, meaning the device is meant to restrain an occupant in a collision (NYSCEF Doc No. 360, Yannaccone aff, exhibit B at 14). In particular, a seatback is meant to restrain and control an occupant's motion and prevent secondary impacts within a vehicle's interior during a rear end collision (NYSCEF Doc No. 358, ¶¶ 11-12). He states that the collapse of a seatback "increases the probability of occupant ejection and impact with interior structure, or rear seat passengers, even with the seatbelt in use" (NYSCEF Doc No. 360 at 14) because the occupant is moving rearward and away from the shoulder portion of the seatbelt (id. at 18). Yannaccone further observes that for larger occupants, such as plaintiff, the lap belt will develop slack, or slip, as their seatback reclines or collapses, thereby affecting the seat belt system's effectiveness in keeping larger occupants restrained in their seats (id.).
At his post-crash inspection, plaintiff's seatback angle measured 55 degrees, though he opines that the seatback reclined more than 60 degrees, possibly up to 67 or 68 degrees, further rearward in the crash (NYSCEF Doc No. 358, ¶¶ 11-12 and 14; NYSCEF Doc No. 360 at 35). Yannaccone avers that the rear end impact from the Toyota Prius propelled the Vehicle forward and out from underneath plaintiff (NYSCEF Doc No. 358, ¶ 10). This action forced plaintiff rearward into the seatback, and it was this rearward force on the seatback that caused it to deform (id.). Yannaccone further avers that this movement caused plaintiff to "ramp" or slide up the deformed seatback (id.). "Ramping" means "the motion of an occupant up the seatback... [that] occurs when the seatback reclines to an angle where the seatback is unable to resist the forward forces trying to move the occupant up the seatback" (NYSCEF Doc No. 360 at 14). Ramping can cause an occupant's head to extend beyond the headrest, thereby exposing the occupant to the risk of hyperextension injuries, contact with rear occupants or other parts of the vehicle, and even ejection (id. at 14-15). In this case, plaintiff suffered a secondary impact with the interior of the Vehicle (NYSCEF Doc No. 358, ¶ 12). He attributes plaintiff's injury to her uncontrolled motion within the Vehicle due to the rearward deformation of the seatback (NYSCEF Doc No. 360 at 35).
Yannacone acknowledges that vehicle manufacturers will design seats that deform rearward to manage the energy of a rear end impact and reduce forces on the seat's occupant but maintains that this should not be done in a manner that exposes the occupant to other risks (NYSCEF Doc No. 360 at 15). First, Yannaccone challenges BMW's decision to conduct tests measuring the rearward recline or deformation of the seatback only on a 50th percentile male dummy. He states that the weight of the 50th percentile dummy is based on outdated anthropomorphic data, since the average weight of a 20-year-old male in the United States between 2011 and 2014 was 189.3 pounds, which is 25 pounds heavier than the 50th percentile dummy BMW used in its tests (id. at 17). Thus, Yannaccone submits that BMW failed to consider the performance of its front seats when occupied by larger, heavier persons which make up a significant percentage of the population in the United States (id. at 30; NYSCEF Doc No. 358, ¶ 15). Second, Yannaccone opines that technology existed at the time to design a seat that was capable of properly protecting an occupant in a rear end crash (NYSCEF Doc No. 360 at 22). Specifically, Yannaccone opines that it was possible to strengthen the pushrod and other components of the seat to resolve the issues Hailer identified at his deposition to fully support the full range of anticipated occupants (id. at 22-23). Implementing such changes "would result in only relatively small increases in material strength or thickness and would have only added minimal increase in the cost of the seat" (id. at 22). He cites the results of FMVSS 301 testing on the front seats of a 2011 X3, which stayed upright in tests using a 50th percentile dummy even though the 2011 X3 is a lighter vehicle (id.), and the fact that BMV has installed more rigid seats in other installed vehicles, such as the Z4 and series 3, 5, and 7 sedans (id. at 30). Yannaccone additionally states that Volvo had designed a seat that incorporated "a specific energy-absorbing device into a non-collapsing design... [such that the] controlled deformation of the seatback... [was] limited to the point where the previously discussed hazards were not introduced" (id. at 30). Yannaccone concludes that had plaintiff "been provided a properly designed... seat capable of supporting entire upper torso and head and capable of withstanding the forces of this moderate rear-end collision, her seatback would not have excessively deformed rearward and [plaintiff] would have remained in her seat throughout this incident" (id. at 4).
The seats in the Z4 and the rear seats in the series 3, 5 and 7 vehicles were placed against a bulkhead. Yannoccone has not explained whether a bulkhead exists behind the front seats in the E53/X5 model.
Plaintiff also relies on an affidavit from licensed engineer Nicholas Bellizzi, P.E. (Bellizzi) (NYSCEF Doc No. 357, Monaco affirmation, exhibit G, Bellizzi aff, ¶ 1). Bellizzi calculated the delta-V, or the "change in the vehicle's velocity vector from just before the impact until just after the impact," as well as the Barrier Equivalent Velocity (BEV), which "quantif[ies] the energy required to cause the damage associated with a collision" (id., ¶ 13). Based on the weight and pre-and post-velocity of the Vehicle and the Toyota Prius, Bellizzi calculated the delta-V experienced by the Vehicle was 20.8 miles per hour (id., ¶ 15). He opined that the crash pulse, or acceleration pulse, experienced by occupants inside the vehicle was 305 feet per second, or 9.47 g's, and that the peak acceleration of the Vehicle was 19g (id., ¶¶ 16-18).
Discussion
It is well settled that a party moving for summary judgment under CPLR 3212 "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The "facts must be viewed 'in the light most favorable to the non-moving party'" (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] [citation omitted]). If the moving party meets its prima facie burden, the opposing party must "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Bazdaric v Almah Partners LLC, ____ N.Y.3d ____, ____, 2024 NY Slip Op 00847, *3 [2024] [internal quotation marks and citation omitted]). If the moving party fails to meet is prima facie burden, the motion must be denied, regardless of the sufficiency of the opposing party's papers (Vega, 18 N.Y.3d at 503).
"In New York, a product is considered 'defective,' and the manufacturer liable, if the product: (1) 'contains a manufacturing flaw,' (2) 'is defectively designed,' or (3) 'is not accompanied by adequate warnings for the use of the product'" (Matter of Eighth Jud. Dist. Asbestos Litig., 33 N.Y.3d 488, 493-494 [2019], quoting Liriano v Hobart Corp., 92 N.Y.2d 232, 237 [1998]). Manufacturers and sellers are "under a duty to exercise reasonable care so as to avoid the occurrence of injuries by any product which can reasonably be expected to be dangerous if negligently manufactured or sold" (Gebo v Black Clawson Co., 92 N.Y.2d 387, 394 [1998]). Thus, a plaintiff injured by an allegedly defective product may pursue claims under strict products liability (Finerty v Abex Corp., 27 N.Y.3d 236, 241 [2016]) and ordinary negligence theories (Gebo, 92 N.Y.2d at 394).
At the outset, plaintiff does not oppose those parts of the BMW Defendants' motion seeking dismissal of her claims alleging a manufacturing defect and breach of an express warranty (NYSCEF Doc No. 350, Monaco affirmation at 2 n 4). Accordingly, those parts of the second and third causes of action predicated upon a manufacturing defect and breach of an express warranty as against the BMW Defendants are dismissed. The court now turns to the defective design, failure-to-warn and breach of implied warranty claims.
A. Defective Design
"[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; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce'" (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]). Because strict liability and negligence claims for the defective design of a product are functionally equivalent, they are analyzed under the same standard (Adams v Genie Indus., Inc., 14 N.Y.3d 535, 543 [2010]). "[T]o establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury" (Voss, 59 N.Y.2d at 107). A product as designed is not reasonably safe when, "if the design defect were 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" (id. at 108). The plaintiff bears the burden of "present[ing] 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" (id.). Mere proof of an injury is insufficient to establish that a product was defective for its intended use (Beckford v Pantresse, Inc., 51 A.D.3d 958, 959 [2d Dept 2008]). A manufacturer, meanwhile, may present evidence that the product is safe, meaning it is "one whose utility outweighs its risks when 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" (Voss, 59 N.Y.2d at 108). Thus, whether a product was designed so that it is reasonably safe requires balancing the product's inherent risk against its utility and cost. This assessment requires consideration of the following factors:
"(1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer's ability to spread the cost of any safety-related design changes"
(Denny v Ford Motor Co., 87 N.Y.2d 248, 257 [1995] [citation omitted]). Generally, the question of whether a product's utility does not outweigh its inherent risk is a jury question (Hoover v New Holland N. Am., Inc., 23 N.Y.3d 41, 54 [2014]).
Applying these precepts, the BMW Defendants have demonstrated that the front seats of the subject Vehicle were not defectively designed. The BMW Defendants have demonstrated that the pushrod of the driver's seat was designed to absorb kinetic energy in a rear end collision and that pushrod of the subject seat deformed, causing the seatback to deflect rearward as was expected. The BMW Defendants also highlight the fact that Scalone's front passenger seat deformed rearward, as expected. Scalone, who weighed 100 kilograms, or 220 pounds, when the accident occurred (NYSCEF Doc No. 349, ¶ 75), was the same weight as the 95th percentile ADT. The BMW Defendants further note that Scalone has withdrawn any claims for physical injury he sustained in this accident (NYSCEF Doc No. 342, Kim affirmation, exhibit 33 at 1).
Plaintiff, in response, has raised a triable issue of fact in opposition (see Salinas v World Houseware Producing Co., Ltd., 217 A.D.3d 518, 519 [1st Dept 2023]). "A factual issue regarding design defect is not established by merely pointing to efforts within the industry to make a safer product, without providing some detail as to how the current product is not reasonably safe and how a feasible alternative would be safer" (Stalker v Goodyear Tire & Rubber Co., 60 A.D.3d 1173, 1175 [3d Dept 2009]). "'Where a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is usually for the jury to make the required risk-utility analysis' whether the product was reasonably safe" (Richards v Ford Motor Co., 198 A.D.3d 467, 468 [1st Dept 2021], lv denied 38 N.Y.3d 909 [2022] [citation omitted]). Here, plaintiff's expert, Yannaccone, opined in non-conclusory terms that the subject seat was not reasonably safe and that the seat could have been designed with a stronger, stiffer pushrod and other components to absorb energy in a rear end crash such that the seat would not deflect or deform as much as it did (compare Glockenberg v Costco Wholesale Corp., 110 A.D.3d 952, 955 [2d Dept 2013] [expert's conclusory assertion that it was technologically and economically feasible to design stiffer outer discs on the wheels of a shopping cart insufficient to raise a triable issue] with Messina v New York City Tr. Auth., 84 A.D.3d 439, 440 [1st Dept 2011] [summary judgment on a design defect claim denied where the parties submitted conflicting expert affidavits]). As is pertinent here, the BMW Defendants specifically designed a front seat that would deflect rearward in a rear end collision (see Mancuso v Reebok Intl., Ltd., 207 A.D.3d 1240, 1241 [4th Dept 2022] ["the fact that the shoe was [intentionally] designed to be unstable is evidence, albeit not conclusive, that the shoe is actually unstable"]). Yannaccone acknowledged that doing so was a common practice in energy management for rear end collisions. However, Yannaccone also opined that plaintiff's injury was caused by her uncontrolled "ramping" up the seatback due to its extreme rearward deflection due to her weight. Contrary to the BMW Defendants' contention, his opinion is not entirely conclusory even in the absence of specific testing (see Steuhl v Home Therapy Equip., Inc., 51 A.D.3d 1101, 1104 [3d Dept 2008] [triable issue of fact raised where the plaintiff's expert "stated that several alternative designs were safer, those alternatives were economically and technologically feasible, and the collapse of a bed as alleged by plaintiff would have been prevented by using an alternative to the clevis pin design"]; but see Burgos v Lutz, 128 A.D.2d 496, 497 [2d Dept 1987] [granting summary judgment where the plaintiff's expert failed to show that the proposed alternative design was safer]). Moreover, Yannaccone identified at least one other motor vehicle manufacturer, Volvo, that designed a more robust driver's seat that had incorporated a specific, energy-absorbing device that did not require the seatback itself to collapse (see e.g. Boateng v Bayerische Motoren Werke Aktiengesellschaft, 2022 WL 4357555, *14, 2022 U.S. Dist LEXIS 169816, *39 [ED NY, Sept. 20, 2022, No. 17-cv-00209 (KAM)(SIL)] [denying summary judgment where the plaintiff's expert had identified another maker that had designed similar equipment that would prevent a door from closing if there was an obstruction in its path]).
Additionally, the fact that the BMW Defendants designed the seat to accommodate the widest range of potential occupants is but one factor to consider in the risk-utility analysis. Here, BMW AG tested the seat before production using a male dummy in the 95th percentile but it did not measure the degree the seatback deflected rearwards. Plaintiff, then 124 kilograms at the time of the accident, weighed more than the 95th percentile male dummy, which weighed 103 or 104 kilograms. Instead, BMW AG measured the deflection of the seat occupied by a male dummy in the 50th percentile, or a dummy weighing 78 kilograms, only. Yannaccone has opined that at present, a dummy weighing 78 kilograms more accurately represents the 35th percentile of the male population in the United States. Thus, whether the seat's utility outweighed its risk is a question for the jury to determine.
And while defendants, in reply, challenge Yannaccone's reliance on certain materials related to headrests and military vehicles, defendants do not challenge the other studies cited in Yannaccone's report. To the extent the BMW Defendants contend that designing a front seat with a stiffer pushrod and other components would create an entirely different seat, the argument is unpersuasive as doing so would not render the seat different in function or utility (see Adamo v Brown & Williamson Tobacco Corp., 11 N.Y.3d 545, 550 [2008], rearg denied 12 N.Y.3d 769 [2009], cert denied 558 U.S. 874 [2009] [designing a "light" cigarette was feasible, but the plaintiffs failed to show it was "functional," meaning that "smokers [would] find light cigarettes as satisfying as regular cigarette" especially where consumer satisfaction is the product's sole function]). Accordingly, after drawing every favorable inference in plaintiff's favor, as this court must (see De Lourdes Torres v Jones, 26 N.Y.3d 742, 743 [2016]), the BMW Defendants' motion for summary judgment dismissing claims based on defective design is denied.
B. The Failure-to-Warn
"[F]ailure-to-warn claims grounded in strict liability and negligence are functionally equivalent, as both forms of a failure-to-warn claim depend on the principles of reasonableness and public policy at the heart of any traditional negligence action "(Matter of New York City Asbestos Litig., 27 N.Y.3d 765, 787 [2016]). "A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known" as well as "a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable" (Liriano, 92 N.Y.2d at 237). "Failure-to-warn liability is intensely fact-specific, including but not limited to such issues as feasibility and difficulty of issuing warnings in the circumstances; obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause" (id. at 243 [citation omitted]).
The BMW Defendants first argue that the failure-to-warn claim must be dismissed because the seat was not defectively designed. A failure-to-warn claim will be dismissed where the plaintiff has failed to establish a design defect (see Richards, 198 A.D.3d at 468), but here, triable issues of fact exist as to whether there was a design defect. Nevertheless, the BMW Defendants have demonstrated their entitlement to dismissal of this claim. It is well established that the plaintiff bears the burden of demonstrating that the user "'would have read and heeded a warning had one been given,'" otherwise such claim will be dismissed (Reis v Volvo Cars of N. Am., In c., 73 A.D.3d 420, 423 [1st Dept 2010], quoting Sosna v American Home Prods., 298 A.D.2d 158, 158 [1st Dept 2002]). In this instance, there is no evidence that had the BMW Defendants warned about the danger of heavier occupants operating the subject Vehicle, plaintiff would have heeded that warning. Plaintiff has produced no evidence demonstrating that she would have read any warnings about the Vehicle's front seat before choosing to drive the Vehicle. The motion insofar as it seeks dismissal of any claims predicated on a failure-to-warn theory is granted.
C. Breach of Implied Warranty
UCC 2-314 (1) provides that "a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." For a good to be merchantable, it must be "fit for the ordinary purposes for which such goods are used" (UCC 2-314 [2] [c]). A plaintiff may pursue a claim for breach of the implied warranty of merchantability for a defectively designed product where "the product was not minimally safe for its expected purpose" (Denny, 87 N.Y.2d at 259 [discussing UCC 2-314 ]). The inquiry on this claim focuses on "whether the product meets the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners" (Khusenov v Prokraft Inc., 2023 WL 1785527, *13, 2023 U.S. Dist LEXIS 19937, *44-45 [ED NY, Feb. 6, 2023, No. 21-cv-03703 (HG)], affd 2024 WL 959620, 2024 U.S. App LEXIS 5384 [2d Cir, Mar. 6, 2024] [internal quotation marks and citation omitted]). The feasibility of alternative designs is irrelevant (Denny, 87 N.Y.2d at 259). Thus, a cause of action for breach of implied warranty requires the plaintiff to plead "that goods are defective such that they were not reasonably fit for the ordinary purpose for which they were used, that the defect in the goods was a substantial factor in causing the injury, and that the alleged defect existed at the time the goods left the manufacturer or entity in the line of distribution" (Fiuzzi v Paragon Sporting Goods Co. LLC, 212 A.D.3d 431, 433 [1st Dept 2023]).
As relevant here, "with respect to a motor vehicle, the ordinary purpose to which the implied warranty speaks is to enable the purchaser to transport herself upon the streets and highways... in a reasonably safe manner" (Berger v Mazda Motor of Am., Inc., 2019 WL 1428449, *7, 2019 U.S. Dist LEXIS 55201, *21 [ED NY, Mar. 30, 2019, No. 16-CV-1835 (MKB) (CLP)] [internal quotation marks and citations omitted]). The BMW Defendants maintain that the Vehicle was clearly suited for its intended, ordinary purposes as plaintiff and her extended family had used the Vehicle (and its front driver's seat) for years without complaint or mechanical issue before the accident (2019 WL 1428449, *8, 2019 U.S. Dist LEXIS 55201, *22; see also McNally v Chrysler Motors Corp., 55 Misc.2d 128, 129 [Sup Ct, Kings County 1967] [dismissing breach of implied warranty claim where the plaintiff's vehicle that was involved in the collision "was reasonably suitable for the ordinary use for which it was manufactured and sold"]). However, triable issues of fact as to the expected purpose of the front seat preclude granting the BMW Defendants summary judgment. The BMW Defendants contend that the front driver's seat was designed to deflect rearward while keeping the occupant as close to the seat as possible in a rear end collision. Plaintiff's expert opines that the subject seat did not keep plaintiff as close to the seat as possible because she "ramped" up the seatback. Thus, a triable issue exists as to whether the system was fit for its intended use (see e.g. Chevere v Hyundai Motor Co., 4 A.D.3d 226, 227 [1st Dept 2004]; Boateng, 2022 WL 4357555, *22, 2022 U.S. Dist LEXIS 169816, *67-68 [finding that a reasonable jury could conclude that the soft-close automatic door of the BMW X5 vehicle was not fit for the purpose for which it was intended]).
Accordingly, it is
ORDERED that the motion of defendants Bayerische Motoren Werke AG a/k/a BMW AG, BMW of North America, LLC, BMW Manufacturing Co., LLC, Prestige Motors, Inc. and Prestige Motorwerks, Inc. d/b/a Prestige BMW for summary judgment (motion sequence no. 014) is granted to the extent of dismissing only those parts of the second and third causes of action alleging a manufacturing defect, a failure-to-warn, and a breach of express warranty, and the balance of the motion is otherwise denied.
This constitutes the Decision and Order of the Court.