Opinion
2012-62333
05-11-2018
Diana BEECHLER and Nicholas Beechler, Plaintiffs, v. KILL BROTHERS COMPANY a/k/a Killbros, Unverferth Manufacturing Company, Inc., and Bentley Bros., Inc., Defendants. Bentley Bros, Inc., Defendant/Third Party Plaintiff, Rumble Farms, Inc., Third-Party Defendant.
LIPSITZ GREEN SCIME CAMBRIA LLP, Richard P. Weisbeck, Jr., Esq. Buffalo, Attorneys for Plaintiff CHELUS HERDZIK SPEYER & MONTE, P.C, Thomas J. Speyer, Esq., Buffalo, Attorney for Defendant, Kill Brothers Company a/k/a Killbros., Unverferth Manufacturing Company, Inc. GOLDBERG SEGALLA LLP, Raul E. Martinez, Esq., Rochester, Attorney for Bentley Bros, Inc.
LIPSITZ GREEN SCIME CAMBRIA LLP, Richard P. Weisbeck, Jr., Esq. Buffalo, Attorneys for Plaintiff
CHELUS HERDZIK SPEYER & MONTE, P.C, Thomas J. Speyer, Esq., Buffalo, Attorney for Defendant, Kill Brothers Company a/k/a Killbros., Unverferth Manufacturing Company, Inc.
GOLDBERG SEGALLA LLP, Raul E. Martinez, Esq., Rochester, Attorney for Bentley Bros, Inc.
Emilio Colaiacovo, J.
Before the Court are two (2) motions filed by Defendants seeking summary judgment. Defendants Kill Brothers Company a/k/a Killbros (hereinafter "Killbros") and Unverferth Manufacturing Company, Inc. (hereinafter "Unverferth") (also collectively referred to as "Killbros") maintain that they are entitled to summary judgment on the basis that the product in question, here a grain cart, was not defectively designed and thus they cannot be held liable for the Plaintiff's alleged injuries. Defendant Bentley Bros., Inc., (hereinafter "Bentley Bros") joins the relief requested by Killbros and asserts the same argument. Plaintiffs insist that the Defendants are liable for Diana Beechler's injuries notwithstanding their disclaimer of liability. The Plaintiffs assert that both defendants are liable for not only the grain cart's design defect, but the subsequent modification of the grain cart and the failure to properly warn against the dangers the cart posed. This decision follows.
Statement of Facts & Procedural History
This action arises from an accident that occurred on December 7, 2011. The Plaintiff, Diana Beechler, was an employee of Rumble Farms Inc., (hereinafter "Rumble Farms"), and was working as a farm hand. On December 7, 2011, Plaintiff was assisting the owner of Rumble Farms harvesting corn using a 475 grain cart that had been manufactured and designed by Killbros. While Plaintiff had never used the cart before and had no general experience with it, she assisted the owner of the farm in off-loading corn that had been left in the grain cart for two (2) to three (3) days and had begun to ferment. Plaintiff climbed into the grain cart and used a shovel to move the corn into the auger, which was used to move and loosen materials. Using the inside steps that were made part of the grain cart, the Plaintiff climbed into the cart in an attempt to dislodge the corn. Plaintiff testified she had difficulty using the steps due their narrow size and, because of the absence of any handrail, slipped into the grain cart. Plaintiff came into contact with the auger and "suffered traumatic amputation injuries." Affidavit of Richard P. Weisbeck, Jr. Esq. , dated January 18, 2018, page 10, ¶ 30.
Plaintiff, Diana Beechler, subsequently commenced a lawsuit on October 4, 2012, naming Killbros, who designed and manufactured the grain cart, and Bentley Bros., who sold the grain cart to Rumble Farms, as Defendants. Plaintiff, Nicholas Beechler, asserted a loss consortium cause of action against the aforementioned defendants.
Regarding the defendants, Bentley Bros. previously purchased the grain cart from Killbros and subsequently sold it to Zelazny Farms (hereinafter "Zelazny") in 1990. According to Bentley Bros., when the grain cart was sold to Zelazny, it was equipped with a safety guard over the auger. Affidavit of Raul E. Martinez, Esq. , dated November 11, 2017, page 5, ¶ 18. In 1999, Zelazny traded in the grain cart to Bentley Bros., who then sold the grain cart to Rumble. Bentley Bros. points out that when the grain cart was sold to Rumble Farms, it was equipped with the augur safety guard. Id. at ¶ 20. In its answer, Killbros maintained it should not be held liable for any modifications that were made to the grain cart after it left the original owners possession.
On December 23, 2013, Bentley Bros. commenced a third-party action against Rumble Farms. Defendants filed the pending motions on November 14, 2017. After two adjournment requests, the motions were argued on February 15, 2018.
Argument
Kill Brothers
In their action against Killbros, Plaintiffs allege negligence on a strict products liability theory and assert several design defect and warranty causes of action. In particular, Plaintiffs assert that the interior steps and the lack of adequate hand-holds were a design defects that contributed to the Plaintiff's injuries. Specifically, Plaintiff's maintain that because the interior steps were too narrow, it rendered them unsafe. Notwithstanding the purpose of those steps when designed, Plaintiffs insist that they could be used for entry and exit into the grain cart and thus were required to be designed and manufactured in a safe condition. Further, the failure to include hand holds was a design defect that rendered the grain cart unsafe. Thomas A. Berry, P.E., an engineer retained by Plaintiff, opined that because the steps failed to contain anti-slip material and because there were no hand holds, there existed an inherent safety hazard that rendered the grain cart unsafe. Affidavit of Thomas A. Berry, P.E. , dated January 18, 2018, page 5-6, ¶¶ 25, 26. Further, Mr. Berry concluded that the protective screen originally installed on the grain cart did not fully protect the auger from contact and thus was defective. Even if it were in place when used by Rumble Farms and the Plaintiff, it "did not completely eliminate the entanglement hazard posed by the auger if someone slipped and fell from the steps to the bottom of the grain cart." Id. at p. 14-15, ¶ 48. In sum, Plaintiffs maintain that the design defect and a lack of a safety mechanism created an unsafe product.
Killbros counter that when it originally designed and manufactured the model 475 grain cart, it was equipped with a safety guard covering and protecting the metal auger. According to the Defendant, "[t]he grain cart was designed with the safety guard welded directly to the wall of the tank affixing it and completely covering the auger. The steel guard was designed and intended to last for the life or the grain cart." Affidavit of Thomas J. Speyer, Esq. , dated November 9, 2017, p. 8, ¶ 29. The steps in question were designed to assist painters who painted the inside of the cart. These steps were later shortened by the Defendant. Defendant maintains that at the time it sold the grain cart to Bentley Bros. it was equipped with the safety guard. During the period of time that passed subsequent to the sale to Bentley Bros. and the acquisition of the cart by Rumble Farms, the auger was removed. Killbros argues that it owed no duty to Plaintiff for the product once it left its manufacturing site and was introduced into the "stream of commerce" and subsequently modified. Id. at p. 28, ¶ 116. They insist that the product was not designed defectively and, further, the cart contained safety stickers that adequately advised of potential dangers posed by the metal auger.
In addition, Killbros supplied an affidavit of Gary W. Kurtz, Ph.D., P.E. who concluded that the grain cart was "designed and manufactured safely and in accordance with ASAE (American Society of Agricultural Engineers) standards," which govern the safety standards for agricultural equipment. Affidavit of Gary W. Kurtz, Ph.D., P.E. , dated November 2, 2017, p. 8, ¶ 22.
In sum, Killbros insists that the grain cart was neither manufactured nor designed unsafely and that it owed no duty to third-parties once the cart, which contained a safety shield, was sold to a third-party and subsequently modified. Lastly, they assert that the four (4) year statute of limitations on a breach of warranty claim has expired and thus should be dismissed.
In reply, Plaintiff submits that her injuries would have occurred even if the auger was in place. Plaintiff insists that the lack of safe steps and hand holds were a susbstantial factor resulting in her injuries. Affidavit of Richard P. Weisbeck, Jr. Esq. , dated January 18, 2018, page 25, ¶ 65-66. In addition, Plaintiff suggests that the product defect, as well as functional safety guard, were the causes of her injuries.
Bentley Bros.
With respect to Bentley Bros., Plaintiff alleges that Defendant failed to provide verbal instructions regarding the grain cart and failed to provide a safety manual. Affidavit of Richard P. Weisbeck, Jr. Esq. , dated January 18, 2018, page 33, ¶ 102. Further, Plaintiff maintains that Bentley Bros. delivered the grain cart with an exposed auger that lacked any type of safety guard. Mr. Rumble testified that he did not observe a safety guard nor did he remove it when he acquired it. Therefore, Plaintiff maintains that there exists questions of fact as to whether Bentley Bros. sold the grain cart to Rumble Farms without a safety guard covering the auger. If they did sell it without a guard, Plaintiffs argue that Bentley Bros. can be held for independent acts of negligence. Id. at p. 34, ¶ 110.
Bentley Bros., in reply, contends that it cannot be held liable in strict products liability for injuries caused by defectively designed or manufactured products when, as is the case here, they are in the chain of distribution of the product. In addition, Bentley Bros. maintains that there were adequate warnings on the grain cart. While adopting and incorporating Killbros's arguments concerning manufacturing and design defects, Bentley Bros. insists that since it did not design or manufacture the grain cart they cannot be held liable on a design or manufacture defect theory of liability. In addition, defendant argues that it is well settled that a seller or distributor of a defective product has "an implied right of indemnification as against the manufacturer of the product." Memorandum of Law in Support of Defendant Bentley Bros., Inc.s Motion for Partial Summary Judgment , dated November 13, 2017. Bentley Bros. argues that a product is defective for the purposes of products liability at the time when it is manufactured. Here, since Bentley Bros. neither designed nor manufactured the product, but simply sold it years later after it was originally sold, they maintain they cannot be liable.
Plaintiff cites to Mr. Bentley's testimony where he insists that when he inspected the grain cart there was a "flat steel welded" screen covering the auger. However, this "flat steel" device that Mr. Bentley testified about was not manufactured until years after Killbros sold this particular grain cart. Plaintiffs maintain that there are doubts whether there ever was a guard in place on the grain cart at all. As such, Plaintiff insists that there are significant questions of fact that preclude Bentley Bros. from succeeding on their motion for Summary Judgment.
Standard of Law
In seeking summary judgment on a products liability case, it is important to understand the legal standard and its reach. A cause of action in strict products liability "lies where a manufacturer places on the market a product which has a defect that causes injury." Robinson v. Reed-Prentice Div. of Package Mach. Co. , 49 NY2d 471 (1980) citing Codling v. Paglia , 32 NY2d 330 (1973).
As the law has developed thus far, a defect in a product may consist of one of three elements: mistake in manufacturing ( Victorson v. Bock Laundry Mach. Co., 37 NY2d 395 ; Codling v. Paglia, supra ), improper design ( Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376 ; Bolm v. Triumph Corp. , 33 NY2d 151 ), or by the inadequacy or absence of warnings for the use of the product ( Torrogrossa v. Towmotor Co., 44 NY2d 709 ). Plaintiff maintains that the safety gate of the molding machine was improperly designed for its intended purpose. Id. at 479.
A manufacturer is liable to any person injured if the defect was a substantial factor in bringing about their injury. However, to prevail, they must establish that the product was being used for the purpose and manner in which it was normally intended, that if the person injured in the course of exercising reasonable care discovered both the defect and perceived its danger, and by the exercise of reasonable care the person injured would not otherwise have averted his injury or damages. Codling , 32 NY2d at 342. Yet, when a product leaves the seller's hands and 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", it is, by definition, a defectively designed product. Robinson , 49 NY2d at 479.
While Courts have interchangeably used the terms "defective condition" and "unreasonably dangerous" in products liability cases, the New York Court of Appeals pronounced that the proper standard to be applied
"should be whether the product as designed was ‘not reasonably safe’ — that is, whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of that product did not outweigh the risk inherent in marketing a product designed in that manner." (See 1 NY PJD2nd 138-139 [1982 Supp].)
Voss v. Black & Decker Mgf. Co. , 59 NY2d 102 (1983).
However, "material alterations at the hands of a third party which work a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature, however foreseeable that modification may have been, are not within the ambit of a manufacturer's responsibility." Hoover v. New Holland, Inc. , 23 NY3d 41 (2014), citing Robinson , 49 NY2d at 481.
In weighing motions seeking summary judgment, a defendant seeking as much must demonstrate that that the product was "not defective" at the time that it was manufactured and sold and, further, that it was safe. In a modification case, which exists here, the defendant must also establish that a post-sale modification rendered the otherwise "safe product defective" and that the modification was the proximate cause of the plaintiff's injuries. Robinson , supra , at 479. If a defendant establishes prima facie entitlement based on substantial modification the burden shifts to the plaintiff to come forward with evidentiary proof in admissible form demonstrating "the existence of material issues of fact which require a trial." Hoover , 23 NY3d at 56. A plaintiff may overcome a substantial defect defense "by demonstrating that the post-sale modification did not render a ‘safe product defective’ because the product incorporated a defectively designed safety feature at the time of sale." Id. As the Court noted in Hoover , plaintiff must raise a triable issue of fact whether the safety feature "was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injuries." Id. , citing Voss , 59 NY2d at 106-107.
Analysis & Conclusions of Law
The Court does not believe that the Defendants have met their burden, and, accordingly, their motions for summary judgment must be denied. The Court believes that issues of fact exist that warrant this matter to be decided by a jury. While it is universally understood that a manufacturer cannot be held liable for material alterations made to a product once it is entered the stream of commerce, this does not provide blanket immunity as suggested by the Defendants. Ultimately, it is for a jury to determine whether the product was safe in light of all of the evidence presented by both the Plaintiff and Defendant. Rainbow v. Elia Bldg. Co. , 79 AD2d 287 (4th Dept. 1981) aff'd 56 NY2d 550 (1982).
The Restatement on Torts provides that "one who supplies a chattel for another to use for any purpose is subject to liability for physical harm caused by his failure to exercise reasonable care to give those whom he may expect to use the chattel which he possesses, and which he should recognize as necessary to enable them to realize the danger of using it." Restatement, Torts 2d, § 388 . This grain cart is an inherently dangerous product which is verified by the presence of a safety guard over the auger that here caused the Plaintiff's injuries. The testimony shows that the Plaintiff here had little experience using this machine, leaving her unaware to the dangers it posed. The missing safety guard, which this Court finds represents a design defect inasmuch as it should not be able to be removed, and the lack of effective and safe steps, are issues a jury must decide to determine if they posed any perceived danger. Micallef v. Miehle Co., Div. of Miehld-Gross Dexter , 39 NY2d 376 (1976).
Addressing first the missing safety guard, Defendants insist that when the grain cart was manufactured, it was equipped with a safety guard that, they argue, would have prevented the injuries suffered by the Plaintiff. While open for discussion, and thus in and of itself creating a triable issue of fact, assuming arguendo that Defendants are correct about the functionality of the guard, both sides submitted competing expert opinions about the effectiveness and safety of the guard itself. The Plaintiff's expert engineer said that even if the original guard was in place, which it was not, that itself would not fully protect the auger from coming into contact with an object and could not prevent entanglement. The Defendants expert said that the cart was designed safely according to agricultural industry standards. The expert opinions submitted differ substantially with respect to the safety of this guard and the design of the cart, which are at the heart of the motion before the Court. In light of these differences of opinion, the Court holds that these are issues for the jury to determine as they are contested issues of fact. Richter v. Collier , 5 AD3d 1003, (4th Dept. 2004).
In the progeny of cases that followed after the Court of Appeals decided Robinson , the Court of Appeals has elaborated on the standards lower courts must abide when deciding cases such as these. In particular, in Hoover v. New Holland, Inc. , the Court of Appeals held,
"if a plaintiff establishes the existence of material issues of fact concerning the defective design of a safety feature, the defendant design of a safety feature, the defendant will not automatically prevail on summary judgment simply because that safety feature was modified post sale. The substantial modification defense is intended to insulate manufacturers and others in the distribution chain from liability for injuries that would never have arisen but for the post-sale modification of a safety feature on an otherwise safe product. Robinson does not, however, mandate summary disposal of cases where the plaintiff raises a colorable claim that the product was dangerous because of a defectively designed safety feature and notwithstanding the modification by a third party." 23 NY3d 41, 57 (2014).
This Court finds that Hoover's reasoning applies to this matter. By reference, in Hoover , plaintiff commenced a design defect case after sustaining severe injuries while using a tractor-driven post hole digger in which the safety shield had been removed after it had been damaged beyond repair. In affirming the Fourth Department, which previously affirmed the trial court's decision addressing issues of liability and damages, the Court of Appeals agreed that plaintiff established existence of material issues of fact sufficient to overcome defendants' substantial modification defense. Id. In particular, the Court noted that the Plaintiff's expert affidavit that the shield was "not reasonably safe" because it was not "designed to last the life" of the digger, and that defendants' failure to incorporate a safer yet feasible alternative design, such as an integral guard or metal shield, were issues of fact. Id.
While this rationale does not necessarily apply to the facts and argument here, the Plaintiffs' engineer raises enough questions that satisfy their burden to defeat the Defendants' motion for summary judgment. For example, in his affidavit, Mr. Berry states that the small box screen was inadequate to prevent the type of entanglement that occurred here. Affidavit of Thomas A. Berry, P.E. , ¶ 24. In fact, Mr. Berry stated that the screen did not fully protect the auger from contact. In the eyes of a jury, this could be deemed an inherently unsafe product if the shield itself did not completely cover the auger. Further, in footnote 2 on page 5 of his affidavit, Mr. Berry opines that that the box screen was removed because it impaired the functionality of the machine by restricting grain flow. Id. Did this, in and of itself, constitute a design defect? This question is best left for a jury to decide. Mr. Berry also opines that there existed a safer alternative that would have prevented this type of accident. Mr. Berry indicated in his affidavit that ASAE Standard S493 required a different distance from the hazard than that of the shield originally installed on the device. Thus, even if it was present at the time of injury, it purportedly violated the ASAE standard. Id. at ¶ 46. Simply put, with respect to the safety device, questions of fact abound that require this issue to be decided by a jury.
Next, Plaintiff submits that the steps installed inside the grain cart were inadequate and posed a hazard. It again is understood that, after the presentment of all the evidence, a jury is to determine whether a product was reasonably safe. Rainbow v. Elia Bldg. Co. , 79 AD2d 287 (4th Dept. 1981) aff'd 56 NY2d 550 (1982). It is for the jury, after weighing the evidence, to determine whether a product, as designed, is not reasonably safe. Voss v. Black & Decker Mgf. Co. , 59 NY2d at 109. The issue concerning the steps presents numerous questions that raise doubts whether the product is in fact safe.
First, before addressing the issue of the steps, Plaintiff and their engineer point out that there was a lack of handholds that would assist someone in using the steps. Howard Kill, the manager of the company that designed and manufactured the grain cart, conceded in his deposition that farm employees might enter the grain cart and that steps could have been used in that process. Deposition of Howard Kill , July 12, 2017, p. 6. He further conceded that handholds would not have impaired the functionality of the product. Id. at p. 72. Also, Mr. Kill acknowledged that handholds put near or around the steps "would have reduced the possibility of someone slipping and falling to the bottom of the grain tank." Id. at 92. In addition, Mr. Berry maintained that a lack of handholds violates ASAE standard § 318.10, which requires handholds to minimize falling during operation of equipment. Affidavit of Thomas A. Berry, P.E. , page 11, ¶ 35.
When evaluating the questions raised by both Mr. Kill and Mr. Berry, Voss raises the proper balancing test one must weigh when addressing design risks. Among those factors to be considered are whether there could be a safer design and the potential for designing and manufacturing a safer product. Voss , supra at 109. Given the questions that surround the absence of handholds, these are issues that a jury should evaluate and weigh when deciding whether the product was reasonably safe.
Regarding the steps themselves, Mr. Berry points out that there was no anti-slip material on the steps which, he alleges, constitutes a violation of the Society of Automotive Engineers' standards that apply to off-road machines. Affidavit of Thomas A. Berry, P.E. , page 10, ¶¶ 33-34. In addition, Mr. Berry indicates that the shorter or narrower steps were a design defect. In fact, Mr. Kill, in his deposition, acknowledges they intentionally shortened the steps. Mr. Berry concludes that narrowing the steps, making it difficult for employees to negotiate them when inside the grain cart, increased the risk of serious injury or death. Id. , at p. 11, ¶ 38. The shorter steps and the length of spacing between them all raise questions of fact as to whether the product was designed in a reasonably safe way. These too are issues of fact that must be weighed and decided by a jury using the factors the Court contemplated in Voss .
Because of the questions of fact that abound here, the Court finds the Defendants motions have failed to meet their burden. Based on the foregoing, the Court hereby DENIES the Defendants' motions for summary judgment.
With respect to the breach of warranty, the Court, for the reasons outlined herein, also DENIES the Defendants' motion for summary judgment.