Summary
In Vannucci, the plaintiff was injured in a forklift accident allegedly because the forklift he was operating was not equipped with permanent rear safety posts.
Summary of this case from Wiacek v. 3M Co.Opinion
August 5, 1999
Appeal from an order of the Supreme Court (Hughes, J.).
Wayne P. Smith, Schenectady, for appellants.
Pearl Smith (Donald A. W. Smith of counsel), Rochester, for respondents.
Before: MIKOLL, J.P., MERCURE, PETERS, CARPINELLO and GRAFFEO, JJ.
OPINION AND ORDER
On August 30, 1990, plaintiff Joseph Vannucci (hereinafter plaintiff), employed as a forklift operator by General Electric Company (hereinafter GE), was operating a forklift designed, manufactured and distributed by defendant Raymond Corporation. The Raymond forklift is a stand-up vehicle with an operator's compartment located in the rear. It is undisputed that the design of such forklift was governed by standard B56.1, which was the governing standard at the time of manufacture and which was approved by the American National Standards Institute (hereinafter ANSI) as recommended by the American Society of Mechanical Engineers (hereinafter ASME), a national organization of engineers. Rear posts, which were offered as optional equipment, were not required by the governing standard or mandated by any Federal or State regulations; ANSI and its industry experts had determined that, although rear posts could prevent certain types of accidents, they could also create hazards. ANSI therefore preferred that each user perform its own risk-benefit analysis prior to purchase to determine whether rear posts should be utilized in the specific operating environment. When leasing Raymond forklifts, GE had requested that each vehicle be equipped with the optional rear posts. However, as a result of certain incidents which occurred in the area of their use, GE safety specialist Thomas Duffy ordered all rear posts on forklifts operating in the area where plaintiff was working to be removed.
On the date of the incident, plaintiff was using the Raymond forklift to move pallets from elevated shelving. He lowered the forks and maneuvered the vehicle backward until it started to underrun a shelf behind him. This caused the vehicle to swing sharply to the left, pinning plaintiff's head between the steering wheel and a shelf. Due to the severe personal injuries caused thereby, plaintiff, and his wife derivatively, commenced this action alleging strict products liability, negligence, breach of express warranty and breach of implied warranty.
Defendants subsequently commenced and settled a third-party action against GE.
As relevant here, plaintiffs contend that had the Raymond forklift been equipped with permanent rear posts, the injuries would not have occurred. Defendants sought summary judgment dismissing the complaint by contending that such posts were available and had, in fact, been ordered and used by GE, who subsequently made its own determination to remove them. Defendants further contended that the absence of rear posts on their standard forklift could not be deemed a defective design since they were not required by any prevailing safety standard. Supreme Court granted defendants' motion, prompting this appeal.
Our review reveals that defendants satisfied their prima facie burden of demonstrating entitlement to judgment as a matter of law (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324) by demonstrating that the Raymond forklift was reasonably safe for its intended use (see, Voss v. Black Decker Mfg. Co., 59 N.Y.2d 102, 107). In support of their motion, defendants proffered the deposition testimony and affidavit of Robert Rogers, a Raymond mechanical engineer who had been a member of ASME for over 15 years. He was involved in drafting, and was ultimately chairperson of the subcommittee which wrote, the B56.1 standard. Rogers opined that there was an advantage to using rear vertical posts to prevent accidental underride situations where horizontal track beams could intrude into the operator's area yet found that, since the very existence of such devices could constitute an additional risk of injury, a risk-benefit analysis based upon the environment in which the forklift would be used was the premise underlying the standard ultimately adopted. He further opined that the subject forklift, as originally designed, fully complied with all industry standards and was reasonably safe for its intended use when sold. GE, aware that the rear posts could be ordered as optional equipment, made a considered safety decision, based upon its own risk analysis, that the rear posts should be removed on the forklifts operated in this particular building where plaintiff was injured.
Having found that defendants established that the forklift, with or without the safety posts, was reasonably safe as designed, leaving the ultimate determination to the user of the equipment (see, Pigliavento v. Tyler Equip. Corp., 248 A.D.2d 840, lv dismissed, lv denied 92 N.Y.2d 868; Patane v. Thompson Johnson Equip. Co., 233 A.D.2d 905; Jackson v. Bomag GmbH, 225 A.D.2d 879, lv denied 88 N.Y.2d 805; Fallon v. Hannay Son, 153 A.D.2d 95), the burden shifted to plaintiffs (see, Alvarez v. Prospect Hosp.,supra, at 324) to demonstrate that defendants marketed a product which was not reasonably safe and that its defective design was a substantial factor in causing plaintiff's injury (see, Voss v. Black Decker Mfg. Co., supra; De Matteo v. Big V Supermarkets, 204 A.D.2d 932). The affidavit offered from John Sevart, a licensed professional engineer, failed to satisfy such burden. First contending that the relevant ANSI standard "addresses the widely recognized risk of serious injury or death to forklift operators from the intrusion of horizontal members (e.g., rack beams) into the operator's area from the rear [thereby] * * * provid[ing] requirements for guards which may be useful in limiting intrusions", the affidavits of defendants' counsel and their expert and the documentary evidence all establish that the relevant ANSI standard did not so provide for rear posts or guards until 1993 — three years after the accident at issue. At the time that the standard first discussed the placement of rear guards, it did so in the context that such guards may be provided and that such determination should be made "through cooperation between the user and manufacturer". Moreover, contrary to the contention of plaintiffs' expert, the initial design contemplated the incorporation of rear posts should the customer opt for their inclusion.
Finding that Sevart's affidavit fails to raise a triable issue which would indicate that defendants breached a duty of reasonable care when they designed this product with a safety option, thereafter making it available to the consumer who was in the better position to assess its need in light of the purpose for which it was intended (see, Jackson v. Bomag GmbH, supra; Fallon v. Hannay Son, supra), we find that Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.
MIKOLL, J.P., MERCURE, CARPINELLO and GRAFFEO, JJ., concur.
ORDERED that the order is affirmed, with costs.