Lori Hoover, et al., Respondents,v.New Holland North America, Inc.,, et al., Appellants, et al., Defendants. (And a Third-Party Action.)BriefN.Y.February 12, 20140 0 To be Argued by: JOSEPH A. MATTELIANO, ESQ. Time Requested for Argument: (15 Minutes) STATE OF NEW YORK Court of Appeals APL-2013-00098. LORI HOOVER and JESSICA BOWERS, Plaintiffs-Respondents, vs. NEW HOLLAND NORTH AMERICA, INC. f/k/a FORD NEW HOLLAND, INC., CASE NEW HOLLAND, INC., NIAGARA FRONTIER EQUIPMENT SALES, INC., f/k/a NIAGARA FORD NEW HOLLAND, INC., Defendants-Appellants, NEAPCO, INC., UNITED COMPONENTS, INC., as Successor in Interest to New England Auto Products Corporation a/k/a NEAPCO, PETER A. SMITH, ALAMO GROUP (SMC) INC., Individually and as Successor in Interest to SMC CORPORATION, SMC CORPORATION and GKN WALTERSCHEID, INC., Defendants. Niagara County Index No.: 121810. CNH AMERICA LLC, Third-Party Plaintiff-Appellant, vs. KYLE P. ANDREWS, TREASURER OF NIAGARA COUNTY, as the Temporary Administrator for the ESTATE OF GARY HOOVER, Deceased, Third-Party Defendant-Respondent. Appellate Division Docket Number: CA 12-00002. First Third-Party Niagara County Index No.: 121810/3. (Additional Action Continued on Inside Front Cover.) BRIEF FOR THIRD-PARTY DEFENDANT-RESPONDENT KYLE P. ANDREWS, TREASURER OF NIAGARA COUNTY, as the Temporary Administrator for the ESTATE OF GARY HOOVER, Deceased AUGELLO & MATTELIANO LLP Attorneys for Third-Party Defendant- Respondent 17 Court Street, Suite 200 Buffalo, New York 14202 Telephone: (716) 852-2500 JOSEPH A. MATTELIANO, ESQ. DANIELLE K. CROWLEY, ESQ. Of Counsel Date of Completion: August 14, 2013. BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 GKN WALTERSCHEID, INC., Third-Party Plaintiff, vs. KYLE P. ANDREWS, TREASURER OF NIAGARA COUNTY, as the Temporary Administrator for the ESTATE OF GARY HOOVER, Deceased, Third-Party Defendant. Second Third-Party Niagara County Index No.: 121810/3. TABLE OF CONTENTS Page TABLE OF AUTHORITIES.....................................................................................ii INTRODUCTION………………………………………………………………….1 STATEMENT OF THE NATURE OF THE MATTER AND THE FACTS……...2 A. The Accident………………………………………………………….2 B. Hoover’s Background………………………………………………...5 C. Hoover’s Prior Use of the Post Hole Digger………………………....6 QUESTIONS PRESENTED……………………………………………………….9 ARGUMENT……………………………………………………………………...10 CONCLUSION………………………………………………………………...…16 i TABLE OF AUTHORITIES Cases Page Barlow v. Dubois, 82 AD3d 1685 (4th Dept 2011)......................................................................10 Delay v. Rhinehart, 176 AD2d 1211 (4th Dept 1991)....................................................................14 Doomes v. Best Transit Corp., 17 NY3d 594 (2011)……………………………………………………12,13 Doomes v. Best Transit Corp., 92 AD3d 490 (1st Dept. 2012)……………………………………………...13 Lolik v. Big V Supermarkets, Inc., Doing Business as Shop-Rite, 86 NY2d 744 (1955)………………………………………………...10 Pinto v. Pyramid Tire, Inc., 193 AD2d 723 (2nd Dept 1993).....................................................................10 ii This brief is submitted on behalf of Third-Party Defendant-Respondent, Kyle P. Andrews, Treasurer of Niagara County, as the Temporary Administrator for the Estate of Gary Hoover, deceased (“Hoover”), in opposition to the appeals of CNH America LLC (“CNH”) (incorrectly named as New Holland North America, Inc. f/k/a Niagara Ford New Holland, Inc. and Case New Holland, Inc.) and Niagara Frontier Equipment Sales, Inc. (“Niagara Frontier”) (collectively “Appellants”). Appellants appeal from the November 16, 2012 decisions of the Appellate Division, Fourth Department which affirmed a Judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr., J.) dated and entered in the Office of the Clerk of the County of Niagara on September 30, 2011, and an Order (Richard C. Kloch, Sr., J.) entered in the Niagara County Clerk’s Office on September 30, 2011. Plaintiffs-Respondents, Lori Hoover (“Lori”) and Jessica Bowers (“Jessica”) (collectively “Plaintiffs”), filed this matter after an accident with a post hole digger in which Jessica had her arm traumatically amputated after becoming entangled in the post hole digger while assisting her stepfather, Hoover, on October 2, 2004. 1 STATEMENT OF THE NATURE OF THE MATTER AND THE FACTS A. The Accident This case arises from an accident that occurred on October 2, 2004. Hoover was digging postholes in his backyard. R. 2742. He had borrowed a post hole digger and tractor from Defendant, Peter A. Smith (“Smith”). R. 2743. The post hole digger was sold by CNH through its dealer, Niagara Frontier. R. 4254, 4449, 4462, 4463. Prior to digging the holes, Hoover had marked the spots for the holes with a hand auger. R. 2755. Hoover’s wife, Lori, had been assisting him with the project. R. 2743. She assisted him with approximately five (5) holes. R. 2751. Hoover had approximately seven (7) or eight (8) more holes to dig when Lori was called into work by Smith and left. R. 2751, 3839. Hoover asked Jessica, his stepdaughter, to assist him. R. 2752. Hoover needed assistance because he felt it was not a one man job. R. 3837. His belief that digging the post holes was a two (2) person job was based on his prior experiences with the post hole digger set forth in sub point C. When Jessica began helping Hoover, he told Jessica to “line up the post holes with the north and south and then to do the alignment of the east and west and to stand back when he started [the post hole digger]”. R. 2753. During the digging of the first two (2) holes, Jessica did exactly as Hoover told her “... lining up the east, west, north and south and then had walked away.” R. 2754. Each time 2 that Hoover engaged the auger and started the post hole digger he turned to his left to look to see if Jessica had stepped away as she had been instructed. R. 2755, 3841. At some point, after Jessica assisted Hoover with one (1) or two (2) holes, she went in the house to get a jacket. R. 2753-2754. At the time of the accident, Hoover was digging what he believe was the third hole with Jessica’s assistance. R. 2754. Hoover had checked to make sure that Jessica had stepped away to a safe distance from the post hole digger, approximately one (1) to two (2) feet. R. 2260, 3842, 3843, 3849. She was standing off to the side prior to Hoover starting the unit, at a safe distance. R. 2260, 3842, 3843, 3849. Hoover would not want to start the post hole digger if Jessica was too close to it or standing right next to it. R. 3847. Hoover saw Jessica stand back from the post hole digger before he started it. R. 2757. Jessica testified at trial that she did not know if she was touching the post hold digger at the time of the accident. R. 1490. Prior to the accident, Hoover did not see Jessica move from her position away from the post hole digger. R. 3842. He then: “[saw] [Jessica] get drawn in, pulled through the PTO shaft, wrapped up in it and hanging and her arm laying three feet away. While [he] was operating the equipment, [he] was able to shut it off immediately when it started happening. That’s why [he] always [turned] to the left, because the controls and the clutch and everything are on the left-hand side. ... It drew [Jessica] right through and she was hanging by her hair. And the coat was all wrapped up around that. And [he] had to 3 go and get a razorblade, cut the coat, cut her hair to get her out of it because she was hanging by it.” R. 2755-2756. Jessica’s coat was caught up on the PTO and the universal joint connection. R. 2756. The auger never came into play. R. 2757. There was no shield between the junction of the drive shaft and the gearbox. R. 2742. Hoover planned that if he saw Lori or Jessica move closer to the post hole digger he would shut it down. R. 3850. Hoover would not let the post hole digger run without looking at it. R. 3592. Prior to the accident, Hoover did not see any guarding on the post hole digger. R. 2766. Hoover had never seen any guarding on the post hole digger and was therefore not concerned that there was no guarding on it at the time of the accident. R. 2766, 3843. It is interesting to note that while Hoover was in the process of cutting through the layers of coat, he believed he saw a protrusion. R. 2760. Smith told Hoover that Jessica’s coat caught on a bolt. R. 2761. After the accident, Hoover told Smith that the bolt should be changed to the proper size. R. 3586. On the day of the accident, prior to its occurrence, Hoover did not observe the bolt. R. 2766. Contrary to Appellants’ assertion, Hoover was not trying to get the project done by a particular time. R. 2771, 3844-3845. He anticipated it would not take more than half a day. R. 3847. Smith did not specify a particular time that he needed the tractor returned. R. 2746. 4 Importantly, Smith did not provide Hoover with any written instructions or speak with him about how to operate the tractor or give him safety advice. R. 2738, 2747. No one, other than Smith, gave Hoover any instruction or guidance on how to operate the post hole digger. R. 2763. B. Hoover’s Background Hoover was not a farmer and he did not have extensive experience with farm equipment. In high school, Hoover took diesel mechanics through BOCES. R. 2727-28. In 1970, when Hoover was approximately 12 or 13, he plowed a field. R. 2728, 3834. He also used a tractor with his father’s bailed hay when he was 14 or 15 years old. R. 2730. From 1977 until 1998 he worked at Chemical Waste Management (“Chemical Waste”). R. 2727. His final position with Chemical Waste was transportation manager. R. 2727. From 1998 until May 2005, Hoover worked at Hazmat Environmental Group, Incorporated (“Hazmat”), as a maintenance manager. R. 2224. In that position he was in “charge of equipment purchasing, overseeing all the expenditures, checking on truck maintenance schedules and overseeing fuel economies.” R. 2726. He was also in charge of making sure any type of breakdown was handled correctly. R. 2726. He did not do any repairs himself. R. 2726. 5 While working at Hazmat, from May of 2003 until April of 2004, Hoover also worked at Niagara Landing Wine Cellars (“Niagara Landing”). R. 2725, 2726. Smith was one of the owners of Niagara Landing along with Lori and Jacqueline Smith-Conley. R. 3563. Hoover did the wine making, worked the tasting bar and would arrange for outside sales to liquor stores. R. 2725. He did not do any mechanical work. R. 2728. C. Hoover’s Prior Use of the Post Hole Digger The first time Hoover ever worked with the post hole digger was in approximately 2000-2001, when he assisted Smith with changing the winery signs at Niagara Landing. R. 2737. According to Smith, digging the post holes was a two (2) person operation; one person would be on the tractor and the other in the back. R. 1293. Hoover was lining up the auger and Smith was digging the hole. R. 2738. Smith did not give Hoover any warnings or any advice to be careful. R. 2738. Smith observed Hoover during the project and would have corrected him if he was doing something wrong. R. 1304-1305. Prior to Hoover’s assistance on this project, Smith had dug over 2,000 post holes. R. 6541. Also, in 2000-2001, Hoover assisted Smith putting up a fence at Hoover’s house. R. 2731-2732. Hoover assisted in lining up the auger before the holes were dug. R. 2731, 3845. Then Hoover would step back and then Smith would dig the hole. R. 3845. This project took four (4) to five (5) hours. R. 2732. The only 6 instruction Smith gave Hoover with regard to his assistance in digging the holes for the fence was to keep the auger lined up. R. 2733. Smith did not say to Hoover to be careful not to touch the spinning auger or any of the moving parts. R. 2735. Hoover did not observe any warning decals on the post hole digger or the tractor at this time. R. 5167. Hoover never saw a shield over a spinning shaft going into the gearbox from the shaft that goes down to the tractor PTO during the times he assisted Smith in 2000-2001. R. 2741-2742, 3835. Smith never told Hoover that he had removed the shield on the post hole digger. R. 1349. When Hoover would assist Smith in digging the post holes and after Hoover positioned the auger, he would step back from the PTO and the auger before it was engaged, approximately one (1) to two (2) feet. R. 3849. The last time Hoover used the post hole digger prior to the accident, was in the summer of 2003. R. 2729-2730. Hoover was replacing some broken posts in Smith’s vineyard. R. 2730. Hoover was digging new holes with the post hole digger and putting new posts in the hole he just dug. R. 2730. This project took two (2) half days. R. 2730. An employee of Smith’s farm, by the name of “Mike”, assisted Hoover. R. 2736. Mike “would remove where the broken pole was. He would guide [Hoover] in as [he] was backing the post hole digger in. [Mike] 7 would hold the post hole digger straight when [Hoover] started to dig the hole down in.” R. 2736. The only other farm equipment Hoover used was driving Smith’s tractor, hauling a trailer for Smith while he was harvesting grapes and moving Smith’s grape picker from one farm to another for Smith. R. 2729. Since Hoover’s first interactions with a post hole digger were with Smith and Smith would have corrected Hoover if he was doing it wrong and Smith felt it was a two (2) person job, Hoover was not aware that the operation of the tractor and the post hole digger could be done by one person. R. 1293, 3843. 8 QUESTIONS PRESENTED 1. Was there sufficient evidence to support the verdict? Answer of the Court below: Yes. 9 ARGUMENT The jury’s verdict was not against the weight of the evidence based on the evidence presented. The jury broke down liability in this matter as follows: Defendant, SMC Corporation (“SMC”), 30%; Smith 30%; CNH 35%; Niagara Frontier 2%; and Hoover 3% liable. R. 48. “The courts may set aside a jury verdict and grant a new trial when the jury’s determination is palpably incorrect and a substantial injustice would be done if the verdict were sustained. ... The operative factor in the determination that a jury’s verdict should be set aside is a finding that the jury could not have reached that verdict by any fair interpretation of the evidence.” Pinto v. Pyramid Tire, Inc., 193 AD2d 723, 724 (2nd Dept 1993), citations omitted. In the present matter, the jury’s verdict was not palpably incorrect and a substantial injustice was not done. It “cannot be said that ‘the evidence so preponderated in favor of the [Appellants] that [the verdict] could not have been reached on any fair interpretation of the evidence’”. Barlow v. Dubois, 82 AD3d 1685, 1685-1686 (4th Dept 2011). See also Lolik v. Big V Supermarkets, Inc., Doing Business as Shop-Rite, 86 NY2d 744, 746 (1995). There was no unfair interpretation of the evidence by the jury in this matter. Hoover operated the post hole digger in the same manner on the day of the incident as he had on previous occasions. Appellants admit that Smith “[i]ncorrectly [demonstrated] to Hoover a two- person procedure for operating the post hole digger”; Smith lent Hoover the post 10 hole digger without informing Hoover that Smith had removed and not replaced the shield; Smith failed to warn Hoover to stay away from any moving parts; Smith lent Hoover the post hole digger without providing the Operator’s Manual; and Smith failed to give Hoover any safety instructions or advice rather than providing a copy of the Operator’s Manual. See p. 58 of Brief for Defendants-Appellants CNH America LLC and Niagara Frontier Equipment Sales, Inc. and Third-Party Plaintiff-Appellant CNH America LLC, dated June 28, 2013 (“Appellants’ Brief”). See also pps. 13-14 of Appellants’ Brief. Hoover had used the post hole digger on three (3) prior occasions over the course of approximately four (4) years with assistance from Smith or an employee of Niagara Landing. There was no guarding on the post hole digger during any of Hoover’s prior uses and he was not told Smith removed the guard. Therefore, he had no way of knowing that there was a guard missing. Smith never gave Hoover any safety instructions or provided Hoover with a copy of the Operator’s Manual. Hoover first used the post hole digger with Smith, who had extensive experience with the post hole digger, and would have instructed Hoover to do something differently if he were doing something wrong. Hoover operated the post hole digger as he was taught by Smith. Hoover was not rushing as Appellants suggest. See p. 60 of Appellants’ Brief and R. 3844. Hoover was not trying to get the holes dug by a particular time. 11 R. 2771, 3844-3845. He felt it would take him half a day to dig the holes. R. 2775. Smith had not given Hoover a time that he needed the tractor returned. R. 2746. Prior to digging with the post hole digger, Hoover was using caution, he looked to ensure that Jessica was standing at a safe distance away from the machine and that Jessica did not move from that safe distance prior to the accident. R. 3842. While attempting to dig the hole when the accident occurred, he saw Jessica standing back from the machine and then he started the machine. R. 2757. Hoover could turn his neck, while seated on the tractor, and see the person assisting him. R. 2750. He could turn his head to either side and see; however, he always turned to the left because all of the controls and the clutch were on the left side. R. 2750, 2755-2756. It was not Hoover’s actions that caused the accident. Rather, it was the fact that there was no guarding on the post hole digger and the design defect that allowed the machine to operate without the guarding. Appellants reliance on Doomes v. Best Transit Corp., 17 NY3d 594 (2011) is misplaced. The plaintiffs in Doomes were injured when the driver of the bus in which they were riding fell asleep while traveling 60 miles per hour, crossed the center line and went down an embankment. Id. at 599. The driver awoke and tried to regain control of the bus. Id. However, he was unsuccessful and the bus rolled over several times. Id. 12 The plaintiffs claimed that “... the absence of passenger seatbelts and the improper weight distribution of the bus, created by the negligent modification of the bus’ chassis, caused the injuries.” Id. at 600. The Court held that the plaintiffs’ expert’s opinion was based on speculation. Id. at 608. The case was remanded to the Appellate Division. The Appellate Division ordered a new trial because the jury’s answers to the interrogatories “... were inconsistent and contrary to the evidence”. Doomes v. Best Transit Corp., 92 AD3d 490, 491 (1st Dept 2012). The court held “[t]he attribution of 100% responsibility for the injuries sustained to the absence of seatbelts is irrational since the jury attributed 60% of the fault for causing the accident to the driver.” Id. The responsibility for causing the accident was attributable to the bus driver. Id. The new trial was required “... to obtain a proper allocation of fault for the injuries sustained as a consequence of the lack of seat belts (as opposed to negligent operation of the bus) and apportionment of liability under CPLR article 16.” Id. In the present matter, Hoover testified to exactly what he did regarding his use of the post hole digger and his training. There was no speculation. The jury’s verdict is fully consistent with the evidence. Hoover was found to be minimally negligent, 3%. The bulk of the liability was attributed to the seller of the post hold 13 digger (CNH), its owner and person who failed to replace the shield (Smith) and the designer and manufacturer (SMC). It is worth noting that while Appellants appealed from the entire judgment, they did not argue that the allocation of liability to Hoover was against the weight of the evidence in their post-trial motion. R. 7535-7744. This was a five (5) week trial. The jury evaluated the credibility of the witnesses in this matter and based its decision on those determinations. “It is for the trier of the facts to make determinations as to the credibility of the witnesses”. Delay v. Rhinehart, 176 AD2d 1211, 1211 (4h Dept 1991). The lower Court properly charged the jury regarding the weight to give each witness’s testimony. R. 4051-4052. Based on the lower Court’s instructions, the jury properly weighed the evidence and came to their decision. The arguments in this case were made by capable attorneys. R. 4049. The jury took time and careful consideration to come to their decision. The jury was properly charged with negligence and found Hoover 3% liable. R. 48, 4063-4065. Appellants, in their brief, did not argue that the lower Court’s negligence charge was in error. Based on the foregoing, the jury’s verdict is fully supported by the weight of the evidence. It cannot be said that the verdict was palpably improper or could not 14 have been reached on any fair interpretation of the evidence. Accordingly, the decision below should be affirmed. 15 16 CONCLUSION For the reasons set forth above, the Third-Party Defendant-Respondent, Kyle P. Andrews, Treasurer of Niagara County, as the Temporary Administrator for the Estate of Gary Hoover, respectfully requests that this Court affirm the Appellate Division’s Orders. Dated: Buffalo, New York August 14, 2013 Respectfully submitted, s/Joseph A. Matteliano By: Joseph A. Matteliano Danielle K. Crowley AUGELLO & MATTELIANO, LLP 17 Court Street, Suite 200 Buffalo, New York 14202 (716)852-2500