Summary
suggesting that there is no duty to warn an experienced forklift operator that a particular forklift is not equipped with overhead guard
Summary of this case from Bavuso v. Caterpillar Industrial, Inc.Opinion
Argued February 15, 1978
Decided March 29, 1978
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, WILLIAM P. McCOOE, J.
Fredric Lewis for appellant.
Walter T. Reardon and Vincent M. Sclafani for Towmotor Co., respondent. Benjamin Vinar, J. Robert Morris and Thomas R. Newman for Pennco Industrial Inc. and H.O. Penn Machinery Co., Inc., respondents.
Abraham Shapiro and A. Allen Stanger for third-party defendant-respondent.
MEMORANDUM.
The order should be affirmed, with costs.
Concededly, the verdict of the jury in favor of Towmotor established that there was neither a breach of implied warranty in the design of the forklift nor negligence in the nature of the warnings contained on the operating plate or manual which accompanied its sale. Of the theories the plaintiff espoused, that left him with only one against the remaining defendant, Pennco, i.e., that the latter was negligent in failing to include the plate and the manual with the lift when it was leased to plaintiff's employer or in otherwise failing to instruct the operator. We conclude there was no duty of instruction in this case and plaintiff has failed to prove that the negligence, if negligence it be, in failing to provide the plate and manual, was the proximate cause of his injuries (Sheehan v City of New York, 40 N.Y.2d 496, 501; Cole v Swagler, 308 N.Y. 325, 329-330). The plate or the manual would not have warned against the particular driving maneuver which plaintiff claims preceded the accident; the language of each did no more than repeat familiar bromides about slow and careful driving such as are self-evident to operators of motor vehicles generally.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.