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: PAUL F. JONES Estimated Time for Argument: (30 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.) REPLY BRIEF FOR DEFENDANTS-APPELLANTS CNH AMERICA LLC and NIAGARA FRONTIER EQUIPMENT SALES, INC. and THIRD-PARTY PLAINTIFF-APPELLANT CNH AMERICA LLC PHILLIPS LYTLE LLP NIXON PEABODY LLP PAUL F. JONES, Of Counsel VIVIAN M. QUINN, Of Counsel JOANNA J. CHEN, Of Counsel LAURIE STYKA BLOOM, Of Counsel One HSBC Center, Suite 3400 Key Towers at Fountain Plaza Buffalo, New York 14203 40 Fountain Plaza, Suite 500 Telephone: (716) 847-8400 Buffalo, New York 14202-3716 Telephone: (716) 853-8100 Attorneys for Defendants-Appellants CNH America LLC (Incorrectly named herein New Holland North America, Inc. f/k/a Ford New Holland, Inc., Case New Holland, Inc.) and Niagara Frontier Equipment Sales, Inc. f/k/a Niagara Ford New Holland, Inc. and Third-Party Plaintiff-Appellant CNH America LLC Date of Completion: September 3, 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. DISCLOSURE STATEMENT Pursuant to 22 NYCRR § 500.1(f), upon information and belief, there have been no changes to the disclosure statements of Defendants-Appellants CNH America LLC and Niagara Frontier Equipment Sales, Inc. since the filing of their Principal Brief on July 2, 2013. - i - TABLE OF CONTENTS Page TABLE OF CONTENTS ............................................................................................ i TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 3 POINT I CNH AND NIAGARA FRONTIER ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW BASED UPON THE SUBSTANTIAL MODIFICATION DOCTRINE ............. 3 A. Smith Substantially Modified the Post Hole Digger by Consciously Removing and Failing to Replace the Gearbox Input Shield ................................................................................. 3 B. The Gearbox Input Shield Was a Sound Product Designed to Withstand Normal Use and Foreseeable Misuse .................... 7 C. There is No Legal Requirement that Manufacturers Must Design a Product Incapable of Wearing Out ............................ 11 POINT II CNH AND NIAGARA FRONTIER ARE FURTHER ENTITLED TO JUDGMENT AS A MATTER OF LAW BECAUSE PLAINTIFFS FAILED TO PROVE THAT ANY CLAIMED DEFECT WAS A SUBSTANTIAL FACTOR IN CAUSING THE ACCIDENT ............................. 13 A. Smith’s Recklessness Constitutes An Intervening, Superseding Cause of the Accident .......................................... 13 B. Plaintiffs Fail to Establish That Any Alleged Defect Was a Substantial Cause of the Accident ............................................ 15 POINT III PLAINTIFFS FAILED TO ESTABLISH THAT THE ALTERNATIVE DESIGNS THEY PROPOSED WOULD HAVE BEEN SAFER OR WOULD HAVE PREVENTED THE ACCIDENT ...................................................................... 18 - ii - POINT IV THE VERDICT WAS BASED ON IMPROPERLY ADMITTED EVIDENCE ......................................................... 23 A. The Post-Accident Testing Was Conducted for the Sole Purpose of Obtaining Information and Testimony for Trial ..... 23 B. The Court Erred in Permitting Thomas Berry to Opine on Causation ................................................................................... 26 POINT V THE TRIAL COURT’S JURY INSTRUCTIONS AND VERDICT SHEET WERE ERRONEOUS .............................. 27 A. Substantial Modification ........................................................... 27 B. Burden of Proof Instruction ...................................................... 29 C. Strict Products Liability ............................................................ 29 POINT VI THE VERDICT WAS BASED UPON INSUFFICIENT EVIDENCE AS A MATTER OF LAW ................................... 30 CONCLUSION ........................................................................................................ 35 - iii - TABLE OF AUTHORITIES CASES Adams v. Genie Indus. Inc., 14 N.Y.3d 535 (2010) ........................................................................................... 6 Aparicio v. Acme American Repair, Inc., 33 A.D.3d 480 (1st Dep’t 2006) ......................................................................... 11 Auld v. Sears, Roebuck & Co., 261 A.D.2d 918 (2d Dep’t 1941) ........................................................................ 11 Brandon v. Caterpillar Tractor Corp., 125 A.D.2d 625 (2d Dep’t 1986) ........................................................................ 11 D’Amico v. Christie, 71 N.Y.2d 76 (1987) ........................................................................................... 12 De Salvo v. Stanley-Mark-Strand Corp., 281 N.Y. 333 (1939) ........................................................................................... 10 Doomes v. Best Transit Corp., 17 N.Y.3d 594 (2011) ......................................................................................... 30 Grazier v. Snap-On Corp., 279 A.D.2d 448 (2d Dep’t 2001) ........................................................................ 17 Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001) ......................................................................................... 12 Kiersznowski v. Gregory B. Shankman, M.D., P.C., 67 A.D.3d 1366 (4th Dep’t 2009) ....................................................................... 22 Martin v. City of Cohoes, 37 N.Y.2d 162 (1975) ........................................................................................... 7 Mayorga v. Reed-Prentice Packaging Mach. Co., 238 A.D.2d 483 (2d Dep’t 1997) ........................................................................ 11 Misicki v. Caradonna, 12 N.Y.3d 511 (2009) ......................................................................................... 15 - iv - Moore v. Deere & Co., 195 A.D.2d 1044 (4th Dep’t 1993) ................................................................... 4, 5 Neri v. John Deere Co., 211 A.D.2d 915 (3d Dep’t 1995) .......................................................................... 7 Orlick v. Granit Hotel & Country Club, 30 N.Y.2d 246 (1972) ......................................................................................... 10 Palladino v. AP Moller, Inc., 174 A.D.2d 335 (1st Dep’t 1991) ....................................................................... 14 People v. Acevedo, 40 N.Y.2d 701 (1976) ......................................................................................... 24 People v. Cohen, 50 N.Y.2d 908 (1980) ......................................................................................... 24 People v. Davis, 43 N.Y.2d 17 (1977) ........................................................................................... 25 Pulka v. Edelman, 40 N.Y.2d 781 (1976) ......................................................................................... 12 Purdy v. Public Adm’r of County of Westchester, 72 N.Y.2d 1, rearg. denied, 72 N.Y.2d 953 (1988) ........................................... 12 Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471 (1980) ..................................................................... 1, 3, 4, 6, 7, 14 Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599 (2009) ........................................................................................... 6 Ruthosky v. John Deere Co., 235 A.D.2d 620 (3d Dep’t 1997) .......................................................................... 5 Schneider v. Kings Highway Hosp. Ctr. Inc., 67 N.Y.2d 743 (1986) ......................................................................................... 17 Seelinger v. Town of Middletown, 79 A.D.3d 1227 (3d Dep’t 2010) ........................................................................ 17 - v - Silveira Dias v. Marriott Int’l, 251 A.D.2d 367 (2d Dep’t 1998) ........................................................................ 11 Trzaska v. Allied Frozen Storage, Inc., 77 A.D.3d 1291 (4th Dep’t 2010) ....................................................................... 17 Van Buskirk v. Migliorelli, 185 A.D.2d 587 (3d Dep’t 1992) ........................................................................ 22 Vega v. Stimsonite Corp., 11 A.D.3d 451 (2d Dep’t 2004) ............................................................................ 3 Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 (1983) ............................................................................. 13, 15, 18 Wood v. Peabody Int’l Corp., 187 A.D.2d 824 (3d Dep’t 1992) ...................................................................... 4, 5 Wyda v. Makita Elec. Works, Ltd., 232 A.D.2d 407 (2d Dep’t 1996) .......................................................................... 3 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) ......................................................................................... 28 STATUTES CPLR 3212(b) .......................................................................................................... 28 OTHER AUTHORITIES Arthur Karger, Powers of the New York Court of Appeals, § 14:5 (Rev. 3d ed. 2005) ............................................................................................... 30 Restatement [Third] of Torts: Products Liability § 15, cmt. b, Illustration 2, at 232 (1997) ....................................................................................................... 13 PRELIMINARY STATEMENT This Reply Brief is submitted on behalf of Defendants-Appellants CNH America LLC (“CNH”) (incorrectly named as New Holland North America, Inc. f/k/a Ford New Holland, Inc. and Case New Holland, Inc.) and Niagara Frontier Equipment Sales, Inc. (“Niagara Frontier”) in reply to the Brief for Plaintiffs-Respondents (“Plaintiffs’ Brief”) and in reply to the Brief for Third-Party Defendant-Respondent Kyle P. Andrews, Temporary Administrator for the Estate of Gary Hoover (“Estate of Hoover Brief”), and in further support of CNH and Niagara Frontier’s appeal. As shown in CNH and Niagara Frontier’s Principal Brief (“Defendants’ Principal Brief”) and herein, the Trial Court and Appellate Division erred in not granting judgment as a matter of law based on the substantial modification of the equipment at issue, i.e., the removal of and failure to replace a safety shield that all parties concede would have prevented this accident. As described herein and in Defendants’ Principal Brief, there are other substantial grounds for reversal and dismissal or, in the alternative, reversal and a new trial on all issues. Plaintiffs seek to impose upon CNH and Niagara Frontier the unprecedented duty of designing a safety shield that would never wear out. In doing so, Plaintiffs seek to avoid this Court’s holding in Robinson v. Reed-Prentice - 2 - Div. of Package Mach. Co., 49 N.Y.2d 471, 481 (1980), that “[m]aterial 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.” Far from being a “flimsy,” “off-the- shelf” shield (Plaintiffs’ Brief at 13, 14, 47, 75, 80),1 the post hole digger’s high- density polyethylene gearbox input shield was safe for all reasonably foreseeable uses and misuses, and remained in use on the post hole digger between two and five years. Plaintiffs argue that Peter Smith should bear only limited responsibility for the accident despite being the person best able to prevent it. Smith removed the gearbox input shield knowing he had created an entanglement hazard in doing so. Smith also failed to install a replacement shield despite the means and ample opportunity to do so over the course of four years before the accident. Despite this, Plaintiffs seek to impose responsibility on the Defendants for the fact that the shield was not in place at the time of the accident. Thus, the Appellate Division’s holding would create potentially limitless liability for manufacturers by imposing upon them the adverse consequences of owners’ failure to maintain their equipment. Allowing the Appellate Division’s orders to stand 1 Likewise, Plaintiffs’ whimsical attempt to compare the shield to a “lampshade” (Plaintiffs’ Brief at 85) is without any support in the Record. - 3 - would also condone the reckless behavior of equipment owners such as Smith, who would be incentivized to neglect the maintenance of their equipment to the detriment and injury of others. ARGUMENT POINT I CNH AND NIAGARA FRONTIER ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW BASED UPON THE SUBSTANTIAL MODIFICATION DOCTRINE As described below, Plaintiffs fail in their effort to refute that CNH and Niagara Frontier are entitled to judgment as a matter of law under Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 475, 479-81 (1980). A. Smith Substantially Modified the Post Hole Digger by Consciously Removing and Failing to Replace the Gearbox Input Shield Contrary to Plaintiffs’ assertions, Robinson and its progeny apply in this case even if Smith did not “purposefully modify the post hole digger to meet his own needs, i.e., he did not remove the shield to alter the post hole digger’s functionality or decrease the amount of time it took to bore a hole.” Plaintiffs’ Brief at 81-82. New York courts have applied Robinson to preclude liability in many contexts even where the substantial modification did not increase the product’s function or versatility. See e.g., Vega v. Stimsonite Corp., 11 A.D.3d 451, 452 (2d Dep’t 2004); Wyda v. Makita Elec. Works, Ltd., 232 A.D.2d 407, 408 - 4 - (2d Dep’t 1996); Moore v. Deere & Co., 195 A.D.2d 1044 (4th Dep’t 1993); Wood v. Peabody Int’l Corp., 187 A.D.2d 824 (3d Dep’t 1992). As discussed further in Defendants’ Principal Brief at 27-28, Robinson applies even where an equipment owner removes a damaged safety feature. Wood, 187 A.D.2d at 826. Plaintiffs attempt to distinguish Wood by asserting that the plaintiffs in Wood had not alleged a design defect claim (Plaintiff’s Brief at 77-78), but that is simply incorrect. As stated in Defendants’ Principal Brief at 27, the Appellate Division in Wood found that “nothing plaintiffs put forward as proof demonstrated that the use of the trailer as contemplated by the manufacturer with all safety locks intact was somehow inadequate or defective.” 187 A.D.2d at 825. (Emphasis added.) The Record on Appeal in Wood puts in even plainer terms the defect claims of the plaintiffs in that case. In their third cause of action, they alleged that “the defendant, PEABODY, sold a TRAILER which was defectively designed, defectively manufactured and was in a defective condition and dangerous to the public.” Attachment 4, at 6; emphasis added. The plaintiffs’ verified bill of particulars in Wood further alleged that “the trailer failed to have a proper and appropriate locking mechanism on its tailgates . . . [and] that the trailer was not designed to prevent hazards under foreseeable conditions of service and intended use and misuse of the trailer . . . .” Attachment 5, at 2; emphasis added. Moreover, - 5 - the Trial Court’s order in Wood expressly stated that defendants’ motion for summary judgment on the product liability cause of action was granted because “plaintiff . . . failed to demonstrate that the trailer was defective as manufactured and defendants have demonstrated that the City’s modification of the trailer destroyed the safety mechanisms.” Attachment 6, at 4; emphasis added. Thus, contrary to Plaintiffs’ erroneous representation of the Wood record, Wood is directly applicable to the facts in this case and compels dismissal of Plaintiffs’ claims. Plaintiffs’ attempts to distinguish Moore, 195 A.D.2d at 1044, are likewise unpersuasive. Regardless of the defect alleged in Moore, plaintiffs in that case and Plaintiffs here both concede that contact with the driveline would not have occurred had the shield been in place, and therefore admit that a substantial modification proximately caused the accident. Id. at 1045. Moreover, Plaintiffs’ reliance on Ruthosky v. John Deere Co., 235 A.D.2d 620 (3d Dep’t 1997), is misplaced. Plaintiffs’ analysis of Ruthosky omits the fact that unlike here, the defendant manufacturers in Ruthosky subsequently changed the design of the shields to eliminate cracking, but failed to recall or replace the shields already installed on existing machines. Id. at 622-23. As Defendants demonstrate in Point I.B, infra, the high-density polyethylene shield in - 6 - fact is widely used without incident or warranty claims. See Defendants’ Principal Brief at 34. Given the precedents in favor of Defendants, the Appellate Division and the Trial Court erred in denying Defendants’ motion for summary judgment pursuant to Robinson.2 There is no dispute that, at the time of sale (the only relevant time frame) the post hole digger was equipped with an intact gearbox input shield that would have prevented a person from coming into contact with the driveline or the connection between the driveline and the gearbox. R. 4509, 6093. As discussed infra (Point I.B) and in Defendants’ Principal Brief, the gearbox input shield was a sound product designed to withstand normal use and foreseeable misuse. Defendants having provided a safe product, Smith consciously rendered the post hole digger unsafe by removing and not replacing the gearbox input shield. Plaintiffs do not dispute that Smith knew that the gearbox input shield prevented contact with the rotating equipment beneath the shield (R. 6582), and that he saw the warnings against operating the post hole digger without the 2 During argument of Defendants’ motion for summary judgment, the Trial Court commented that “[t]here’s no question in my mind as I review the Lippman court recent rulings is that you’re going to see more rights given to Plaintiffs.” R. 312. In this context the Trial Court referenced Adams v. Genie Indus. Inc., 14 N.Y.3d 535 (2010), and Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599 (2009), even though those cases neither address Robinson nor analyze the substantial modification doctrine. - 7 - gearbox input shield. R. 6669.3 Despite being aware of these hazards, Smith removed the original shield, and for approximately four years prior to the accident failed to install a replacement shield. R. 1276, 6549, 6582, 6628, 6760. Plaintiffs also do not contest that Smith had the means and the ability to replace the shield: Smith could have purchased a replacement shield for $40 and could have installed it in approximately 15 to 30 minutes using readily available tools. R. 1358, 6483, 6527-28. Thus, Plaintiffs’ attempt to characterize Smith as a passive non-actor belies the fact that Smith had ample opportunity and the means to prevent Ms. Bowers’ injuries, but recklessly chose not to do so.4 B. The Gearbox Input Shield Was a Sound Product Designed to Withstand Normal Use and Foreseeable Misuse Contrary to Plaintiffs’ assertion, CNH and Niagara Frontier have never contended that they “could have satisfied their duty of care by incorporating a lampshade as a driveline guard.” Plaintiffs’ Brief at 85. As demonstrated infra, Plaintiffs fail to rebut that Defendants did satisfy their “nondelegable duty to design and produce a product that is not defective . . . gauged as of the time the product leaves the manufacturer’s hands.” Robinson, 49 N.Y.2d at 479. 3 The Trial Court granted summary judgment dismissing all failure to warn claims (R. 30-32), and no appeal was taken from that dismissal. Thus, it is law of the case that the warnings on the post hole digger adequately alerted users to the dangers of misuse or modifications. Martin v. City of Cohoes, 37 N.Y.2d 162, 165 (1975). 4 These facts also demonstrate that Neri v. John Deere Co., 211 A.D.2d 915, 916 (3d Dep’t 1995), relied on by Plaintiff, is distinguishable because Smith in fact consciously bypassed an operational, built-in safety feature. - 8 - First, there is nothing in the Record beyond Smith’s self-serving and variable testimony to support Plaintiffs’ assertion that the gearbox input shield did not withstand normal use and foreseeable misuse. As further discussed in Point IV.A, the original shield was discarded by Smith and was never made available for analysis. R. 6760. No other testimony, photographs, or documents were produced to support Smith’s narrative regarding the damage he caused to the original shield, or when he removed it. Smith never returned the shield to the seller or distributor for warranty replacement. R. 6660. Smith’s testimony regarding when he removed the original shield, a critical factor in Plaintiffs’ claim of defect, varied between two to five years after he purchased the post hole digger. R. 1335, 1348, 6483, 6580-81, 6623-24, 6735, 6757,6760.5 Moreover, abuse of the post hole digger and the shield as described by Smith exceeded all reasonable expectations. As explained in Defendants’ Principal Brief at 33, Smith routinely and in violation of the Operator’s Manual6 drove not 5 Most of Smith’s testimony was that he removed the original shield three to four years after purchase (R. 1335, 6483, 6580-81,6623-24, 6735, 6757, 6760), but during cross- examination at trial he conceded that he did not remove the original shield until five years after purchase. R. 1348. During that time Smith drilled 1000 to 2000 holes per year. R. 6734-35. 6 Contrary to Plaintiffs’ assertions (Plaintiffs’ Brief at 18), Defendants correctly cite the Operator’s Manual. Defendants do not claim that the Operator’s Manual’s instruction to avoid submerging the auger beyond its flighting (R. 4477, 8220) was expressly intended to prevent damage to the gearbox input shield. However, Plaintiffs do not and cannot dispute that if Smith had followed these instructions, in addition to avoiding binding and overloading the gearbox input shield would not have been damaged by coming into regular contact with the ground or with the driveline. Plaintiff’s Exhibit 55 (R. 8260) illustrates Smith’s misuse of the post hole digger, with not only the flighting but also part of the gearbox assembly submerged into the - 9 - only the post hole digger’s entire auger into the ground but also part of the gearbox assembly, thus destructively crushing the gearbox input shield against the ground and the driveline. R. 6605-06, 6645-46. Plaintiffs provide no support whatsoever for their claim that an auger extension, which would allow Smith to drill deeper holes without damaging the gearbox input shield (R. 2898-2900, 6729), would have also “exacerbate[ed] the risks of binding and driveline overload.” Plaintiffs’ Brief at 79. Plaintiffs claim that this usage by Smith was normal and foreseeable, and that the gearbox input shield was not designed to withstand normal and foreseeable usage. However, despite tens of thousands of the same shields being used around the country, Plaintiffs can point to no reports of defect claims having been made regarding the gearbox input shield. R. 4516, 5937-38, 6341-42. Plaintiffs’ attempts to distinguish this important fact are unsuccessful. Although Plaintiffs assert that Mr. Suhr’s affidavit concerns only “flexible shields in general,” the Suhr affidavit in fact states that the gearbox input shield “is a well- designed and typical example” of the “shields . . . used on tens of thousands of farm implements in the United States every day.” R. 4516. Even if the Court chooses to disregard the Suhr affidavit, which was properly submitted in support of ground, causing the gearbox input shield to contact the ground and the driveline. Contact of the shield with the ground simply was not intended by Defendants as “the normal operation of the post hole digger.” R. 1035, 3818. - 10 - Defendants’ summary judgment motion (R. 4515), Plaintiffs do not dispute CNH engineer Stephen Schlotterbeck’s testimony that the shield is “a design that’s used throughout the industry to shield drivelines and gearboxes.” R. 6341-42. Indeed, Plaintiffs recognize that the lack of complaints or accidents involving high-density polyethylene gearbox input shields highlights the unreasonableness of Smith’s usage of the post hole digger. Plaintiffs rely upon this Court’s decision in Orlick v. Granit Hotel & Country Club, 30 N.Y.2d 246, 250 (1972), which clarified that sufficiently strong evidence of “continued use for a long period of time in substantially the same condition, without incident” may negate liability. Id. at 250 (holding that language in jury instruction was too strong); compare De Salvo v. Stanley-Mark-Strand Corp., 281 N.Y. 333, 338 (1939) (dismissing complaint where defendants showed a long history of lack of incidents). Here, there was no evidence regarding the condition of the original gearbox input shield at the time Smith removed it other than Smith’s own self- serving testimony. Combined with the fact that the gearbox input shield is an industry standard proven reasonably safe and durable (R. 3753; see Defendants’ Principal Brief at 9-10, 32-33), and given its widespread use without incident or warranty claims (R. 4516, 5937-38, 6341-42), Defendants established as a matter of law that the gearbox input shield in issue was reasonably safe and designed to withstand normal use and foreseeable misuse. - 11 - C. There is No Legal Requirement that Manufacturers Must Design a Product Incapable of Wearing Out Unable to contradict the fact that Smith performed maintenance on other parts of the post hole digger and tractor (R. 6468, 6655, 6695), Plaintiffs concede that some components, such as the auger or auger blades, are not defective even though they wear out and require replacement. Plaintiffs’ Brief at 87. However, without citing any legal authority to support their position, Plaintiffs attempt to establish a novel rule that safety guards, unlike any other product or component, must be incapable of wearing out or requiring replacement. Plaintiffs’ Brief at 87-88. Numerous decisions establish that designers and manufacturers do not have a duty to design products incapable of wearing out. Aparicio v. Acme American Repair, Inc., 33 A.D.3d 480, 481 (1st Dep’t 2006). See also Silveira Dias v. Marriott Int’l, 251 A.D.2d 367, 368 (2d Dep’t 1998); Mayorga v. Reed-Prentice Packaging Mach. Co., 238 A.D.2d 483, 484 (2d Dep’t 1997); Brandon v. Caterpillar Tractor Corp., 125 A.D.2d 625, 626 (2d Dep’t 1986); Auld v. Sears, Roebuck & Co., 261 A.D.2d 918, 918 (2d Dep’t 1941). None of those decisions even consider the possibility that safety guards should be excepted from that rule. Even Plaintiffs’ expert Thomas Berry conceded the following at trial: Q: . . . And safety features including an interlock don’t last forever, can get damaged, can break and can be disabled or bypassed; isn’t that true? - 12 - A: Depends on how they’re designed. But nothing lasts forever. R. 1917.7 Plaintiffs’ justification for differentiating safety guards from other components is Berry’s speculation that “it is well known among agricultural design professionals that owners commonly won’t replace a broken or missing guard.” Plaintiffs’ Brief at 51. Even assuming Berry’s hypothesis to be true, a widespread failure by owners to maintain their equipment in safe condition reinforces the need to reverse the Appellate Division’s orders. The error by the Trial Court and the Appellate Division not only creates the inequitable result of imposing “potentially limitless liability” upon manufacturers for the consequences stemming from equipment owners’ failure to perform routine maintenance, Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233 (2001); see also Purdy v. Public Adm’r of County of Westchester, 72 N.Y.2d 1, 8, rearg. denied, 72 N.Y.2d 953 (1988); D’Amico v. Christie, 71 N.Y.2d 76, 88 (1987); Pulka v. Edelman, 40 N.Y.2d 781, 783 (1976), but also removes any incentive for owners to maintain their equipment in safe condition. Worse, such a rule would give owners an incentive to not maintain their equipment, a fact apparently not lost on Smith who more than five 7 Indeed, Plaintiffs cannot demonstrate that a metal guard would never need to be replaced. Smith himself testified that a metal shield on an older post hole digger “was bent and mangled and it finally came off it.” R. 6437; see also Point III, infra. - 13 - years after the accident still operated this post hole digger without a gearbox input shield. R. 6659-60. POINT II CNH AND NIAGARA FRONTIER ARE FURTHER ENTITLED TO JUDGMENT AS A MATTER OF LAW BECAUSE PLAINTIFFS FAILED TO PROVE THAT ANY CLAIMED DEFECT WAS A SUBSTANTIAL FACTOR IN CAUSING THE ACCIDENT Plaintiffs fail to demonstrate that a defective design was a substantial factor in causing Ms. Bowers’ injuries. Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107 (1983). A. Smith’s Recklessness Constitutes An Intervening, Superseding Cause of the Accident Plaintiffs do not even attempt to distinguish the Restatement illustration in Defendants’ Principal Brief at 38-39, which instructs that even assuming the existence of a product defect, the defect does not constitute a substantial factor in causing a plaintiff’s injury where a third-party substantially modified the product, and then lent the product to the plaintiff without warning about the modification. Restatement [Third] of Torts: Products Liability § 15, cmt. b, Illustration 2, at 232 (1997). Accordingly, Plaintiffs are incorrect as a matter of law in stating that Smith’s conduct constituted merely “a proximate cause.” Plaintiffs’ Brief at 65. (Emphasis in original.) Smith’s removal and failure to replace the gearbox input - 14 - shield, compounded with his failure to warn Gary Hoover or Ms. Bowers of the missing shield, despite Smith’s knowledge that he had created a hazardous condition by removing the shield, was an intervening, superseding cause precluding liability against Defendants. In asserting that Defendants have not preserved this claim, Plaintiffs ignore the essence of Defendants’ substantial modification argument, which is based upon the concept that manufacturers are not responsible for consequences flowing from substantial changes by third parties. Robinson, 49 N.Y.2d at 479; Palladino v. AP Moller, Inc., 174 A.D.2d 335, 337 (1st Dep’t 1991) (a finding of negligence in manufacture and design is superseded by a finding of third-party substantial modification under Robinson). Thus, even if Smith’s acts here are not characterized as a substantial modification of the post hole digger, Smith’s acts nevertheless were an intervening, superseding cause because they created the hazardous conditions that led to Ms. Bowers’ injuries. Plaintiffs’ assertion that the gearbox input shield was a proximate cause of the accident by not “[holding] up throughout the useful life of the machine” (Plaintiffs’ Brief at 66) ignores the effect of Smith’s numerous intervening acts, such as removing and then failing to replace the gearbox input shield for approximately four years (R. 6760), and failing to warn Gary Hoover that the post hole digger lacked a gearbox input shield. R. 1349, 2738, 6593, 7580. - 15 - Moreover, even if the Court determines that this issue was not preserved, the Court may consider any issue if “decisive . . . and could not have been obviated by factual showings or legal countersteps if it had been raised below.” Misicki v. Caradonna, 12 N.Y.3d 511, 519 (2009). Thus, contrary to what Plaintiffs suggest, the Judges of this Court do not “sit as automatons, merely to register their reactions to the arguments which counsel had made below.” Id. at 525 (Smith, J. dissenting). Here, the Restatement illustration demonstrates that Smith’s negligence precludes liability against Defendants, and based on this ground alone, the Court should grant judgment to Defendants as a matter of law. B. Plaintiffs Fail to Establish That Any Alleged Defect Was a Substantial Cause of the Accident Even if Smith’s acts do not constitute an intervening, superseding cause of the accident, Smith’s testimony and Plaintiffs’ expert Berry’s testimony regarding a fictional EMT protocol are insufficient as a matter of law to satisfy Plaintiffs’ burden of demonstrating that any alleged defect was a substantial cause of the accident. Voss, 59 N.Y.2d at 109-10. First, Plaintiffs misstate Smith’s testimony regarding the alleged cause of the accident in an attempt to rehabilitate the only basis for Plaintiffs’ causation theory. Contrary to Plaintiffs’ statements, the Record does not demonstrates any “eye witness testimony tracing the entanglement of plaintiff’s jacket to the protruding nut and bolt.” Plaintiffs’ Brief at 66. Gary Hoover and Ms. Bowers, - 16 - the only people present during the accident, testified that they had no idea what first became entangled on the driveline, or where. R. 1490-91, 4638, 4721-22, 4733-36, 4789. In contrast, Smith was not present at the accident (R. 1352), and his ambiguous testimony (“It could have [wrapped around] the bolt, it could have folded under.” R. 6681) derives solely from his removal and discarding of the jacket allegedly wrapped around the post hole digger (1314-16). Smith’s disposal of the jacket prevented anyone else from examining it. R. 6515.8 Plaintiffs also appear to retreat from their expert Berry’s testimony regarding the fictional EMT protocol for determining an initial entanglement point (R. 1778-79, 1786-87; Plaintiffs’ Brief at 94-95), even though Plaintiffs propound no other theory for determining the cause of the accident in issue. Plaintiffs further concede that Berry’s opinion on causation was based on an inadequate factual basis because Plaintiffs cannot dispute that Smith had no accident reconstruction or EMT training to determine the initial entanglement point. R. 1881; Plaintiffs’ Brief at 95. Finally, in an effort to rebut Defendants’ expert Dr. Alfred Bowles’ opinion that determining the origin of the entanglement in this incident is complex, 8 Plaintiffs state that Defendants’ expert Dr. Alfred Bowles “acknowledged that Peter Smith’s observation as to the coat’s contact point was an important factor in determining how the accident occurred.” Plaintiffs’ Brief at 70. Examination of the citation provided by Plaintiffs, however, shows that Dr. Bowles did not in fact say that, but merely stated that “it’s helpful to know what [Smith] observed” (R. 2995-96), which is far short of calling it “an important factor.” Moreover, Dr. Bowles did not think the jacket pocket was the point of entanglement: “[i]t doesn’t make sense.” R. 2999. - 17 - due to irregularities in the distribution of material over the length of the driveline (R. 2972), Plaintiffs provide only their attorney’s patently insufficient opinion that causation here can be determined through “simple logic.” In an attempt to remedy this evidentiary gap, Plaintiffs attempt to rely upon the proposition that “the proof need only render the possible causes so remote or technical that the verdict is based on logical inferences drawn from the evidence.” Grazier v. Snap-On Corp., 279 A.D.2d 448, 449 (2d Dep’t 2001); see also Schneider v. Kings Highway Hosp. Ctr. Inc., 67 N.Y.2d 743, 745 (1986). However, the circumstantial evidence in the cases cited by Plaintiffs is far more compelling than the bare assertions presented here. For example, in Schneider, this Court applied this proposition because it was more reasonable to conclude that a hospital staff person had lowered the bed rails than that a weak and elderly patient had rolled herself out of bed, especially where the spring latch was so designed that the patient was physically unable to lower the rail. 67 N.Y.2d at 745. Also, the causation theories in the slip-and-fall cases relied upon by Plaintiffs, Trzaska v. Allied Frozen Storage, Inc., 77 A.D.3d 1291, 1293 (4th Dep’t 2010), Seelinger v. Town of Middletown, 79 A.D.3d 1227 (3d Dep’t 2010), are far simpler than in this case where, as Dr. Bowles testified, determining the initial entanglement point is a complex matter. R. 2972. - 18 - Thus, the circumstantial evidence here, consisting of Smith’s untrained, biased, and self-serving testimony, fails to demonstrate that any design defect proximately caused the accident, and Plaintiffs’ claims should be dismissed as a matter of law. POINT III PLAINTIFFS FAILED TO ESTABLISH THAT THE ALTERNATIVE DESIGNS THEY PROPOSED WOULD HAVE BEEN SAFER OR WOULD HAVE PREVENTED THE ACCIDENT As Plaintiffs themselves recognize (Plaintiffs’ Brief at 46), the availability of a safer alternative design is crucial to establishing their claim of defect. Voss, 59 N.Y.2d at 109. Here, Plaintiffs fail to show how their proposed alternative designs would have eliminated any alleged entanglement hazard, let alone show that Ms. Bowers would not have been injured had the proposed alternative designs been in place. First, regarding the proposed alternative design of a recessed retention mechanism,9 Plaintiffs argue that “the protrusion created an . . . entanglement hazard that could have been eliminated at little or no additional cost” (Plaintiffs’ 9 Plaintiffs not only misstate Defendants’ statements regarding the replacement bolt (Plaintiffs’ Brief at 50), but analysis of the Record citations in Defendants’ Principal Brief at 44, n. 10, also demonstrates that Defendants did correctly characterize the testimony they cited. Gary Hoover in fact testified at deposition that he “saw a bolt that went through the PTO shaft . . . And it had what I’m going to guesstimate approximately a three-inch protrusion of threaded bolt that was sticking out.” R. 3586. In contrast, Plaintiffs’ record citations (R. 1318- 20) do not support Plaintiffs’ claim that the replacement bolt was “materially identical” to the original bolt. Instead, the record reflects only that Smith could not remember whether the bolt on the post hole digger was original equipment. Id. - 19 - Brief at 49), but Plaintiffs’ expert Berry conceded that the proposed recessed hardware “would still be shielded. It’s a rotating component with lots of power.” R. 1901, 7612. Plaintiffs’ lengthy discussion regarding the decision to incorporate an allegedly protruding nut or bolt therefore obscures the fact that Plaintiffs’ proposed alternative design would still require shielding and does not eliminate an entanglement hazard. Contrary to Plaintiffs’ assertions, Plaintiffs have not demonstrated a feasible alternative design and therefore have not established that the connection between the post hole digger’s driveline and gearbox was defective. Plaintiffs’ proposed metal shields, integral or not, would in fact render the post hole digger more hazardous by exposing rotating parts of the post hole digger’s driveline. CNH engineer John Riffanacht explained that the high-density polyethylene gearbox input shield completely shielded and encircled the gearbox input area (R. 2876), as depicted in Plaintiffs’ Exhibit 55. 10 R. 8260. In contrast, Berry conceded that it was obvious that the metal shields he demonstrated at trial did not provide 360° coverage and exposed the rotating underside of the connection between the PTO driveline and gearbox. R. 1909-10.11 Berry further 10 Plaintiffs’ Exhibit 55 (R. 8260) notably also shows the auger of the post hole digger submerged well past the flighting, in violation of the Operator’s Manual’s instructions. R. 4477, 8220. 11 Side-by-side comparisons of the gearbox input shield and Plaintiffs’ proposed alternative shields best demonstrate the critical and undisputed fact that the gearbox input shield originally equipped on the post hole digger provided full, 360º protection, whereas Plaintiffs’ and Berry’s proposed metal alternatives did not provide 360º protection (and, in fact, provided only three-quarter or 270º protection). The gearbox input shield (Plaintiffs’ Exhibit 89) as designed - 20 - conceded that “current standards” require 360° protection, and that he “would probably design [the gearbox input shield] with three-hundred-and-sixty degree protection.” R. 1910. However, Berry presented at trial only photographs of a prototype metal shield incorporating 360° protection. R. 1824-30, 8773. In contrast to the post hole digger’s original high-density polyethylene shield, which was extensively tested by both the post hole digger and the shield’s manufacturers (R. 5730-33, 5775-76, 5928-29, 5932), Plaintiffs do not allege that Berry ever tested his prototype for efficacy or durability. Had Berry conducted any testing of his prototype, he would have realized that the design is unworkable: unlike the flexible high-density polyethylene shield, a rigid metal shield would contact and damage the driveline shield. R. 5723. It is also speculative for Plaintiffs’ expert Berry to claim that “if a heavy duty metal guard had been used . . . it would have held up and been in place and installed on the post hole digger was a complete cylinder (360º) that enclosed and overlapped the bell shield attached to the power takeoff (“PTO”) shaft shield (as shown in Plaintiffs’ Exhibit 55 and Defendants’ Exhibit FFF [R. 8260 and 7564]), rendering all moving parts completely enclosed by shielding. As described by CNH Engineer John Riffanacht at trial, “[a]s this is installed on the post hole digger . . . [y]our gear box shield fully covers any operational component of that PTO shield . . . . So, you have an overlap of the safety shielding in that rotational area.” R. 2878. “[T]hese rotating parts would have been fully shielded for safe operation.” R. 3015. In contrast, Plaintiffs’ and Berry’s proposed alternative shields (both the “red” shield [Plaintiffs’ Exhibit 161] and the “black” shield [Plaintiffs’ Exhibit 163]) were three-sided metal rectangles, with the fourth side completely open, thus providing only 270º coverage and allowing for contact with the moving parts within. Nor did the Plaintiffs’ alternative designs provide the extensive overlap of the safety shielding in the rotational areas that the original shield provided. - 21 - on the day of Jessica Bowers’s accident.” Plaintiffs’ Brief at 61. First, Berry speculates in drawing this conclusion, given the multitude of intervening acts such as Smith’s removal and failure to replace the guard. Even the Trial Judge recognized that Berry was speculating when he testified that a metal guard would have held up until the day of the accident. R. 1839-40. Moreover, Berry has no foundation upon which to base his opinion. Berry and his colleagues admitted that they tested the proposed metal shields for only “several hours” either in the lot where their office was located or in the vacant lot next door. R. 1911-14. Berry also conceded that SMC’s testing for durability incorporated a longer testing period because Berry “wasn’t testing the length of time that the auger can last or the auger teeth can last.” R. 1913. Finally, Plaintiffs’ reliance upon a photograph of a John Deere post hole digger equipped with a metal guard belies Defendants’ expert Ralph Shirley’s testimony that based upon his thirty-two years of experience working at John Deere, Shirley believed the industry had moved away from metal guards. R. 3263-65, 3388-91. Shirley further testified that the John Deere post hole digger was older and out of production at time of trial. Id. Contrary to Plaintiffs’ assertions (Plaintiffs’ Brief at 20-21), Smith in fact testified at deposition that a metal shield installed on a post hole digger purchased in the 1960s “was bent and mangled and it finally came off it.” R. 6437. Although Plaintiffs attempt to rely upon Smith to establish the useful life of this - 22 - metal shield (Plaintiffs’ Brief at 20-21), Smith did not have personal knowledge of whether the metal shield on the 1960s post hole digger was the original shield, or how long the metal shield had been installed. In any event, as with the original gearbox input shield in issue, Smith was the sole source of information regarding the metal shield on the 1960s post hole digger, and therefore had free license to testify however he wished regarding the condition and durability of the 1960s metal guard. Thus, Plaintiffs also fail to demonstrate a feasible alternative gearbox input shield, and Plaintiffs’ design defect claims should be dismissed. Kiersznowski v. Gregory B. Shankman, M.D., P.C., 67 A.D.3d 1366, 1367 (4th Dep’t 2009) (upholding summary judgment for defendant where expert opinion on alternative design was not “supported by foundational facts, such as a deviation from industry standards or statistics showing the frequency of injuries caused by using such a [product]”); Van Buskirk v. Migliorelli, 185 A.D.2d 587, 589 (3d Dep’t 1992) (upholding summary judgment for defendants where plaintiffs’ proposed design alternatives regarding a safety guard were based upon “conclusory assertions, unsupported by any facts or data”). - 23 - POINT IV THE VERDICT WAS BASED ON IMPROPERLY ADMITTED EVIDENCE A. The Post-Accident Testing Was Conducted for the Sole Purpose of Obtaining Information and Testimony for Trial Plaintiffs fail to show that Smith’s installation and subsequent abuse of the replacement gearbox input shield was conducted for any purpose other than for obtaining “evidence” and testimony for the trial. Plaintiffs do not contest Smith’s testimony that he installed the replacement shield in June 2005, eight months after the accident, “because [he] found out [he] was being sued,” which he also said was a “wake-up” call. R. 1358-59, 4260, 6528, 6634. Plaintiffs also cannot explain away the fact that Smith’s lawyer and others were present the day Smith installed the replacement shield and demonstrated the post hole digger’s operation by repeatedly allowing the auger to penetrate to a depth where the flighting was submerged, in violation of the Operator’s Manual. R. 1280-82, 4477, 6488-89, 8220, 8260-61. Moreover, although Smith testified at trial that the post hole digger was operated during the testing period of June 2005 through October 2005 in the same manner it had always been used, Smith in fact was not present when the post hole digger was used and had no personal knowledge of how it was used during that testing period, nor was there any testimony from any of his employees as to how it was used during the testing period. R. 1360. The fact that - 24 - the replacement shield endured only four months of “testing” (R. 1214-17), whereas the original shield lasted at least approximately four years (R. 1335), further shows that the replacement shield had been installed and then was abused solely and purposely to manufacture “evidence” for Smith’s defense. Finally, it is evident that Smith did not install the replacement gearbox input shield out of a new-found sense of responsibility; more than five years after the accident this replacement shield had been removed and had not been replaced, and Smith continued to operate the post hole digger without any shield. R. 6659-60. Not only was the installation and use of the replacement shield a “test” conducted solely for purpose of manufacturing “evidence” for trial, but it also was conducted under improper conditions and without supervision. Photographs and testimony regarding the “test” therefore should have been precluded. See People v. Cohen, 50 N.Y.2d 908 (1980); People v. Acevedo, 40 N.Y.2d 701 (1976) (test results excluded where there was insufficient foundation for the circumstances of the testing, and the record showed that the condition of the electric cable used in the experiment was not sufficiently similar to the condition of the cable involved in the event). The photographs and testimony related to the “testing” of a replacement shield also should have been precluded because they “confuse[d] the main issue and mislead the jury . . . [and] create[d] a substantial danger of undue - 25 - prejudice” to Defendants. People v. Davis, 43 N.Y.2d 17, 27 (1977). The prejudice to the Defendants resulting from the Trial Court’s error cannot be overstated. As discussed in Point I.B, supra, and in Defendants’ Principal Brief, Smith had discarded the original shield (R. 6760-61), and nothing other than Smith’s self-serving testimony supported Plaintiffs’ assertion that the original gearbox input shield did not withstand normal use and foreseeable misuse. Thus, without the photographs of and testimony about “testing” of the replacement shield, misleadingly submitted as evidence of the original shield’s condition and durability, the jury would not have seen any photographs depicting a damaged gearbox input shield. Indeed, left uncorrected, the Trial Court’s erroneous decision to admit “evidence” regarding the replacement shield will only encourage future litigants to fabricate “test” results. That Defendants elicited testimony and utilized photographs regarding the replacement shield does not support the admissibility of the evidence resulting from Smith’s post-accident testing. Defendants, recognizing that the prejudicial testimony and photographs would be admitted over their objection, prepared rebuttal testimony in an effort to ameliorate the Trial Court’s error. R. 3237. Thus, Plaintiffs fail to rebut that admission of testimony and photographs regarding the replacement shield was clear error warranting reversal of the Appellate Division’s orders. - 26 - B. The Court Erred in Permitting Thomas Berry to Opine on Causation As discussed supra (Point II.B), Plaintiffs appear to retreat from their expert Berry’s testimony regarding the fictional EMT protocol, arguing that the admission of this testimony, even if erroneous, was not prejudicial. Plaintiffs’ Brief at 95. However, Plaintiffs obscure the fact that their causation theory rests upon Berry’s opinion regarding the fictional EMT protocol, which should have been precluded for lack of foundation. As discussed in Defendants’ Principal Brief at 51-52, Plaintiffs did not establish that Berry was qualified in emergency medicine or accident reconstruction. R. 1776-78, 7547, 7628-29. Berry also relied upon Smith’s testimony to the extent that Berry admitted he would change his causation opinion if Smith was incorrect in testifying that Ms. Bowers’ jacket caught upon a protruding bolt. R. 1880. However, as noted supra (Point II.B), Smith’s testimony on this point is speculative because Smith conceded that he could not identify the point of entanglement and was not present at the time of the accident, nor did he have any background in biomechanics. R. 1351-53. The Appellate Division therefore erred in allowing Berry to opine on causation where his testimony entirely lacked foundation. - 27 - POINT V THE TRIAL COURT’S JURY INSTRUCTIONS AND VERDICT SHEET WERE ERRONEOUS Contrary to Plaintiffs’ assertions (Plaintiffs’ Brief at 106), all of Defendants’ objections to the jury instructions were preserved and survived the Trial Court’s charge to the jury. R. 3774-75, 7980. Furthermore, despite Plaintiffs’ repeated references to the supposed reasonableness of the jury’s verdict, Plaintiffs fail to demonstrate that the verdict was based upon proper jury instructions. The Trial Court’s instructions on significant issues in this case were in fact materially improper. A. Substantial Modification Plaintiffs recite only a portion of the substantial modification instruction, thus obfuscating the error committed by the Trial Court, which in fact instructed that substantial modification was merely “a principle” for the jury to “consider” in determining whether CNH and Niagara Frontier were liable (R. 4068, 4070), as opposed to a dispositive finding that would negate liability against Defendants.12 The Trial Court stated: If you find that Mr. Smith’s removal of the shield and failure to replace it along with other modifications to the 12 Due to a typographical error in the first line of p. 53 of Defendants’ Principal Brief, the quotation marks on the language quoted from the Trial Court’s instructions were misplaced. That line instead should read “modification was a ‘factor’ to be taken into account in some undefined manner in. . . .” - 28 - equipment resulted in a substantial modification . . . then you must consider that in determining whether CNH and/or Niagara Frontier are liable. In your deliberations you must also consider whether Peter Smith was to some extent at fault, whether Gary Hoover was to some extent at fault and whether Jessica herself was to some extent at fault. R. 4070. Similarly, the Trial Court erred because the verdict sheet did not include a place for the jury to make a specific finding as to substantial modification, much less an instruction to the jury to end their deliberations if they found that a substantial modification had been made. Compare R. 8077-78 with R. 8189-95.13 Here, the magnitude of and prejudice resulting from the Trial Court’s error must be viewed in light of the fact that, in denying summary judgment, the Trial Court implicitly had determined that a material issue of fact existed regarding substantial modification. CPLR 3212(b); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Having made this determination, the Trial Court erred by failing to submit the substantial modification issue to the jury in haec verba, along with an instruction to end their deliberations if they so found. 13 Plaintiffs’ claim that Defendants’ proposed verdict sheet would allow “any ‘modification’ [to] be deemed ‘substantial,’” Plaintiffs’ Brief at 103-04, belies the fact that the Trial Court’s instructions resolved these concerns. R. 4069. - 29 - B. Burden of Proof Instruction The burden of proof instruction mischaracterized Plaintiffs’ and Defendants’ respective burdens of proof by failing to specify that if Plaintiffs failed to satisfy their burden of proof, the complaint must be dismissed. Moreover, Plaintiffs’ paraphrasing of the instruction regarding settling defendants – “if a product defect did exist, settled defendants . . . were wholly responsible for it” (Plaintiffs’ Brief at 106) – is not the instruction that was given to the jury, and is far less confusing than the instruction actually given by the Trial Court. Defendants’ proposed instructions would have avoided the improper implication that the jury was directed to attribute responsibility to the non-settling Defendants CNH and Niagara Frontier, and it was error for the Trial Court to adopt the Plaintiffs’ requested instructions in toto. R. 3649. C. Strict Products Liability Plaintiffs also miss the point that the Trial Court, at the time it defined “defective design,” failed to include in the definition that the jury must consider the post hole digger “at the time [it] was marketed.” R. 4067. Although the Trial Court eventually provided this instruction, it was only after the Trial Court had addressed several other subjects, thereby confusing the jury on this fundamental tenet of strict liability law. - 30 - POINT VI THE VERDICT WAS BASED UPON INSUFFICIENT EVIDENCE AS A MATTER OF LAW Plaintiffs’ contention that this argument is not properly preserved overlooks the fact that this appeal arises in part from the September 30, 2011, Order of Supreme Court, Niagara County denying Defendants’ post-trial motion for judgment notwithstanding the verdict (R. 41), and the Appellate Division’s subsequent affirmance of that Order. R. 16a. See Arthur Karger, Powers of the New York Court of Appeals, § 14:5 (Rev. 3d ed. 2005) (claim that findings of fact are not supported by legally sufficient evidence is preserved by a post-trial motion for an order setting aside the verdict and directing judgment as a matter of law). Defendants have also incorporated challenges to the sufficiency of the evidence as a matter of law in their Appellate Division Brief (at, e.g., 27, 29) and Motion for Leave to Appeal (at 22, 24).14 Moreover, Defendants demonstrate both supra, infra, and in Defendants’ Principal Brief, that the verdict allocating only 30% responsibility to Peter Smith and only 3% responsibility to Gary Hoover was based upon insufficient evidence as a matter of law. As in Doomes v. Best Transit Corp., 17 N.Y.3d 594, 609 (2011), the evidence propounded by Plaintiffs regarding the 14 This Court’s Rule of Practice, § 500.22(c), requires submission of the parties’ Appellate Division briefs to this Court on a motion for permission to appeal, and the parties’ Appellate Division briefs were in fact filed with Defendants’ Motion for Permission to Appeal on February 14, 2013. (Mot. No. 2013-203, decided April 30, 2013. R. 5a-6a.) Thus, the parties’ Appellate Division briefs are available for the Court’s review. - 31 - alleged design defects is “conclusory and based on speculative data that failed to establish a causal relationship,” whereas the facts overwhelmingly demonstrate that Peter Smith and Gary Hoover were the true negligent actors. Defendants have established Peter Smith’s numerous negligent acts, the most egregious of which are highlighted here: Misusing the post hole digger, and thereby damaging the flexible high-density polyethylene shield, by failing to use the auger extender and by ignoring the explicit instruction in the manual stating “[d]o not allow the auger to penetrate the ground to a depth where the flighting [the upper-most portion of the auger blade] is submerged” (R. 4477, 8220); Knowingly creating a hazard by removing the gearbox input shield from the post hole digger (R. 1349, 7558, 7580); Failing to replace the gearbox input shield even though Smith could have purchased a replacement for $40 and could have installed it with his own tools in approximately 15 to 30 minutes (R. 1358-59, 3017, 4260, 4291, 6483, 6527-28, 6634); Demonstrating to Hoover a two-person procedure for operating the post hole digger (R. 1302-03), when the Operator’s Manual explicitly - 32 - instructed that the post hole digger be operated by only one person (R. 4476, 8219); Lending the post hole digger to Hoover without advising Hoover that he had removed the shield and without warning Hoover to stay away from any moving parts (R. 1349, 2747, 7558, 7580); and Failing to provide Hoover with the Operator’s Manual (R. 1305, 1347, 4472, 6647, 7192, 8215) or even with safety instructions or advice in lieu of providing a copy of the Operator’s Manual. (R. 2747). Likewise, contrary to Gary Hoover’s assertions (Estate of Hoover Brief at 11-13), there was insufficient evidence as a matter of law to support the jury’s allocation of only 3% responsibility to Gary Hoover.15 Although Hoover, like Defendants, attributes culpability to Smith (id. at 10-11), Hoover avoids the fact that he was also a substantial cause of the injuries sustained by Hoover’s step- daughter, due to his following acts: Operating the post hole digger despite his acknowledged lack of experience and training (R. 2730, 4250, 4291, 5156; Estate of Hoover Brief at 5); 15 Although Defendants argue that there is insufficient evidence to support the jury verdict as a matter of law, Hoover applies a “weight of the evidence” standard. Estate of Hoover Brief at 10. Defendants address Hoover’s arguments as if they invoked the correct standard. - 33 - Operating the post hole digger without asking for further instruction, safety advice, or the Operator’s Manual (R. 2747-48); Engaging in a two-person operation of the post hole digger even though the Operator’s Manual states that the post hole digger should be operated only by one person (R. 4476, 8219);16 Asking Ms. Bowers and Lori Hoover to assist Hoover despite his lack of knowledge and training regarding the post hole digger and Ms. Bowers’ and Lori Hoover’s total lack of experience with the post hole digger (R. 1484, 2751-52); Instructing Ms. Bowers to stand only one to two feet away from the post hole digger even though the Operator’s Manual states that bystanders should stand at least ten feet away (R. 4472, 4476, 4477, 8215, 8219, 8220); and Engaging the auger before Ms. Bowers reached a safe distance away from any moving parts of the post hole digger (R. 2768, 2776). Moreover, although Hoover claims that he had not been in a rush to complete the post hole digging project (Estate of Hoover Brief at 11-12), Hoover 16 Contrary to Plaintiffs’ argument (Plaintiffs’ Brief at 100), the availability of an Auger Positioning Handle does not demonstrate that a two-person operation of the post hole digger is permitted. The Operator’s Manual makes clear that the Auger Positioning Handle “can be mounted on . . . the gearbox for operator convenience” (R. 4485, 8228; emphasis added), and that the post hole digger should be operated by only one person. R. 4476, 8219. - 34 - testified that he had only a “small window of opportunity to use” Smith’s tractor and post hole digger due to Smith’s busy grape harvesting season. R. 3572, 3601. Smith himself testified that Hoover had told him that he was “rushing, pushing to get [the job] done” and that he “was in a hurry.” R. 1349. Thus, Hoover does not and cannot dispute that despite Smith’s recklessness, Hoover owed an independent duty to operate the post hole digger in a safe manner, which he breached by failing to obtain the proper safety knowledge or training before operating the post hole digger with his step-daughter’s assistance. Based on the foregoing, the jury verdict is based upon insufficient evidence as a matter of law and warrants a new trial if the Court does not grant judgment as a matter of law to Defendants. - 35 - CONCLUSION For the reasons described above and in Defendants’ Principal Brief, this Court should reverse the orders of the Appellate Division and grant judgment as a matter of law to Defendants and dismiss the complaint, or in the alternative, order a new trial. Dated: Buffalo, New York September 3, 2013 PHILLIPS LYTLE LLP By /s/Paul F. Jones Paul F. Jones Joanna J. Chen One HSBC Center, Suite 3400 Buffalo, New York 14203-2887 Telephone No. 716-847-8400 Facsímile No. 716-852-6100 and NIXON PEABODY LLP Key Towers at Fountain Plaza 40 Fountain Plaza, Suite 500 Buffalo, New York 14202-3716 Telephone No. 716-853-8100 Facsimile No. 716-853-8109 Attorneys for Defendants-Appellants CNH America LLC and Niagara Frontier Equipment Sales, Inc. Doc #01-2694115.8 ATTACHMENT 4 . · .. CLlFFORD .WOOD .and fd.Ait~ WOOD. Plabulfft-~-~ a,ahut 91 ....... 71 PEABODY INTERNATIONAL CORPORATION, • . lkfiii'Uimtl-llnpcMettl-A~IlDnt, tmd DEPEN.DABLE REPAI~ INC .• IkfDUI.mri-~ and AL TURI LANDF1LL, INC., PEABODY INTERNATIONAL CORPORATION, Third-Party Ptabuiff, agabut CITY OF POUOHKEEFSIE, . . . ThW-Pmty DefmdanL AL TURI LANDFILL. INC., S«rmd Thlrd-Pany Plo.bttiff, CJIOhui• CITY OF POUGHKEEPSIE, . S«onJ Jhlrd-Parly Dtfm.;tlimL -. . Ri\CORD ON APPEAl,. V~l-~1to4H ... '·.:. o~T·ttc~r.c .. . . · •· · · · .-'.AitQrncys /oi ~iffi-... ·. .. . . . : .,. . ;.. ... . . . . 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Statement Under Rule 5531 A Notice of Appeal • 1 Notice ·of Cross Appeal 3 Order Appealed From 5 Notice of Motion . 10 Affidavit of Paul ~· Wise in Support of Motion 12 Exhibits Annexed to Affidavit of Paul W. Wise: JL I.nvoice 19 B. Bill of Lading 20 C. City of Poughkeepsie Invitation to Bid 21 D. E-Z Pack Operation and Maintenance Manual for Models TTh-65-8 and TTH-75-8 E. Lower t:.,te Opening Iru. ·.ructions Decal F. E-~ P~ck Parts Catalog AffirmAtion of SUs<'ln R. Perona in Support of Motion Exhibits Annexed to Affirmation o£ Susan R. Perone: A. Summons A (Continued). Plaintiff's Complaint B. Answer of Defendant Peabody International Corporation With Demands 32 52 53 73 80 81' 94. c. Answer of De~endant Dependable .Repair;· Inc. With.Demands D. Answer of Def~ndant Al Turi Landfill~ Inc .... · ..... ,• .• . : ... . . . . .. 'i2l=···' ·.' . ~ ·• . ii. E. ·Third-Party Summons E (Continued). Third-Party Complaint E (Continued), Annexed to Third-~arty Complaint: Plaintiffs' Complaint F. Answer of Third-Party Defendant City of Poughkeepsie G, Third-Party Plaintiff's Reply to Counter- claim H. Plaintiffs' l\ill of Particulars I. Third-Party Plaintiff's Sill of Particu- Page 136 140 HI 145 147 lars 166 I (Continued). Attached to Third-Party Bill of Particulars; Bill of Particulars J. Relevant Pages From E.B.T. of Clifford Wood K. Relevant Pages From E.B.T. of Clifford Wood L. Notice to Admit .. L (Continued). Exhibits Annexed to Notice to Admit: A. City of Potighkeep~ie Invitatio~ .to· Bid .. ;. . . . 169 170 193 198 : .. '· · .. . . ! .2o.:C.· .~· :•. ·. ·: ·,,.:, B. . i· . . . :. . . Photo~ra(>hs .. of TraileJ: ."10~~·· ·. : ~.· · •. :.202 :·. . ··.:.'· .··· II so EXHIBIT A, ANNEXED TO AFFIRMATION OF SUSAN R. PERONl>i--SliM~tONS. SUPREME COURT OF THE STATE OF NEN YO~K COUNTY OF DUTCHESS --------·-------------------------------x CLIFFORD WOOD and MARION WOOD, Plaintitff.i, - against - PEABODY INTERNATIONAL CORPORATION, DEPENDABLE Rl::PAIR, INC. and AL TURI LANDFILL I INC • , Defendants. SUMMONS -----------------~----------------------x Plaintiffs designate Dutchess County as the place of trial. Tho basis of the venue is plaintiffs' residence. Plaintiffs :reside at Poughkeepsie, New York, County of Dutchess. TO THE ABOVE N'A.MED DEFENDANTS YOU ARE HEREBY SUMMONED to answer the co·mplaint in this action and to serve a copy of your ansver, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiffs' Attorneys within twenty (20) days after the service of this summons., exclusive Of the day of service (or vithin thirty (JO) days after the service is complete if this summons is not personally d~liVGred to you within the state of .New York); and in case of your failure to appear or answer, judgment will be taken against you by default for.the relief demanded in the complaint. DATED: January 7, l9SS Poughkeepsie, Nev York GELLERT & CUTLER, P. C. At·torneys for Plaintiffs Office and P.o. Address 54 Market street Pouqhkeepaie, N't 1,2501 (914) 454-3250 81 E.XHl.BlT A (CONTINUED)._-PLJ'l.lNTIFFS' COMPLAINT {Pages Sl-93). SUPR.'B:KE COURT Ql" THE STA'l'E OF NEW' YORK CO~Y Of DUTCHESS -~-~~------~--~---~-------~~~~~-~~---x CLIFFORD WOOD and MARION WOOD, Pl~intifta, - a!lainst - PeABODY IH'l'ERNNl'IONAL CORPORATION, DEPENDABLE REPAIR, INC. and AL TURI LANDP'I LL 1 INC. , OefendantiJ. ----~-~~--~~~-------------~---~------x VERIFIED COMPLAINT Plaintiffs, c:ol!!plalning ot th~ defendants, by their attorneys, GELLERT r. CUTLERt P.c., respectfully alleg~ as follows: 1. IJ.•hat at all the times herein c:oncerned 1 plaintiffs were and utill ar~ railidents of the County of Dutchess and. Stt!te of NeW' York, and are husband and wife. :l. That at all times herein concerned 1 the City of Poughkeepsie waa and still is a municipal Corporation organized under tha laws of the State of New 'iork. 3. That at all til!1es herein concerned1 the city of Poughkeepsie Department of .Public Works, operated a tr~n~:fer station at Hovnu:d Street, Poughkeapsie1 New York, County of Dutchess. 4. That at all times h~rein cc:lt1ce:rned, plaintiff, ct.IFFO:RD woont was employed by the ci-ty o.f Poughkeepsie DapartUlent ot Public Works., at its transfer atati.on. 5~ Upon information and beliat, at all the times herein concerned~ the de:t~ndant, AL TUR! LANDFILL; INC. 1 (hereinafter l .. as injttr•d1 has bcuan cauaad to endur~ gr~at :paifi, suffa:ring and :t~~entb.l ~i'lgu.i,ab, and lltU~ in·cu:r:red. and will continua to incur l'l1f!ldical axpenses 1 and otharwla~ h~• h~~n •oono=ically da~ag~d. 26. t.ill.'litatiom;: of liabilit:y set forth .in Articlf;t 16 o! the civil Praoticfl l.al( and llu1Cl• dct not apply to ths ins-tant action in that thht a-ction come.s under l)tle of tb~ •x•mptions ~t'.t forth in a~ot.ten 1fi02 of the- cPLR. '21. ay l"$~UJOh of the fi:>rug:oing, p1aintitt 1 CLIF:FORD WOOD, has htailn dat:P.~gad in tho ~um ot TltREE K:ttLION ('$3, {)OO 1 000. 00) DOLL.lill:S. M..A.llD FQS t,. ~;;c_mm ~au~~:~ or amsm .r91L.e.ImAc;H OF' WAREAHTX 2a. P.lainttfr: re:peats., reiterates and reallages each and every ~ll$~atiot1 contained in the pxt.ivious paragraphs of this veriflod C:o~plaint afi\ if tully ~•t forth hnroin. ~9'. ')'hat th6 date"Jndant, PF:ltBODY, expressly and impliedly w~:u.-riil')ti'lld that th~ -rRA:o:J::R wa-s !later w~~ or good nrerche:ntable quality a.nd raaaonably tit for its intend'\\d u.se. :.)<:;, 1'hM; tih~ d;e!(:!tidll.nt Pre-rtchud ita t.tarranties to thls plaintJ,!f be:~US(.l; th-i!~! TRAILER was unsafe, not of good a.nd m:erchantttble qu~lity1 IUlQ Unfit: !tcx; it$· int~nded £:>UrpOse.- 3l, that th-e: plaintitf ... \'"QH~d oh tlv:~. warranties made hy the --------dt!lfendaJ:tt and -~~<:r:.fed to suft~r seriot:s personal injury as the .... - di.t'C'dt ai~ax;.E:at.e reo.sult of nicl :reU.d .. mately oaua«d th• abOV$ c.h.taJaribod accidift'nt ~hile th~ .product wa~ being Ufted tor itli.t ordin$ry i.nt•md~d )?ttt·pos.n and in the orVida a aaf~a work plac• tor ••ploytiCIII!II of th• City of Pougbk'e~itpaie, who were tr~uuaptlrtinq ga:thaq• to the Al '.Nri t.anr1tHl; in that they poraitte'ld un»n~tf• trailer• t<> be o~rated on their pre•b•s; in that th•Y .tail-.4 to operote and uintain the landfill. l!ite ao a11 to provide reasonable and •idt~q\.ud:.t~ protet:tion to th• liV4U&, health and aatt~ty of all p•raona nployed thrar11dn includinq the plaintiff; in that they failed to as•ure that all Mchinary, equisment and d~Bvica• at th• landfill t~ere ao oplacfid, op$.ratctd and gua~lld 110 as to provide 1 us. reaBoMbl.t~ ·~ •dequate p:rot•Qtion to all p&raonlol woi''kin~ at the ·+andlill r in that they tailed to oont!d:ructj place and operat.e $a as to 9ive p~o~;~; p:rot•ct.ion to j>fllraoms uployed. in general and plaintiff in p•rtiaulart in that th•y fail.ed t·a< conatructr llllaihtain and ()porata artd conduct. the landfill sit•- so aa to provide t"fi!Uia·on.ablQ and adaquat~ protJ.t~otion 11nd llaf•tY to the pt;ramru& sllployed there-in i.n g-en~ral and th• plaintiff in particular! in that thoy tailfld to U5itt insp:ect~ ildviill«t: and oont.rol cont~acto:r::a as to th• use of due care w-ith reg.ard tC1 th• (iUat•ty ot p•r•onil inoludin.q t:ilaintift in the landfill a.rca; in that they tailed t\':1 .!!lsaurc and control thQ hiring of ~·'aaP.ons!bl(l contractor!* lmd p•raonn•l to ~~tai·ntain equipment; in that they failed to po•t wa:rn.in~ td(jlla, •tiok4!l:X'$t- notice" or r~'ntindt~rs r(!q&rding s-afety 4nd llll:tet.y pracotioe-at in that tllft;t failed to eatablish and promulgate .1atoty tul~u~ and t>.-guhtiona ii'l the operl!ltlon of. their businoss and equip•$nt U~Jed in tndt bu•i.n~~~~,J~t in that they ~aU~d to train and inetruot tht~b." e~aploye9s appropriately and adequately f in th.at they ~r.itt~d •qulp}!lant to he U8Gd illlpropar:i.yJ and thE!y ware negligent in <>th•r \:fay• not lJ'rltt~;antly K.nown to the pl«intift. The na9Uq;anoDJ or dafendant 1 Pu·body Ipti)rnaUQtlAl GQl':t'2I:OtiQn, its «.tjili'itli-1 ••rvatttlit and/or el:1lp1Qyt:u:~s: ia a.a tollowtu in that the trai.ler fatil·ed to havGt a prop•r and approp.rie.t.~ l.PCking ·):4echanism on ita tailgab•llil-·t in thiit tha trailer fa.iled to have any safety devices, inoludift!1·~:afety cltaitt$, to pr~vent the tr~iler's doors fro~ springing 0p4n rapidl.yf in that the trail$lr" was not deaiqned and xanuf:aotur~d in aooo.rdanoa "'i'th reooqnbed. aaft~ty .ng;inet~aring p·rinciple•.; in that the txldlttr w•a ne>t do»i9t14l4 to pt"aVe'fit hzt~a~• under toreliHI~able conditionCJ of •un;vieo and in.t~Nld$d ua« a.nd misuse of the trailer; in 2 . 164 RU•ten corporate Par~ 1·00 R~ School Uoua-. Road suite IU2 Spri119 Valley, N•w York 10977 Dated: Pou~hkeepaiet New York Septcaba~ 21, 19&U TO: HAROLD A. HMC, ESQ, Attorney tor Olaimu, NY 10606 ( 9 H) 9·93-9600 RVAA1 PALL WCKIA, ROACH & RYAN1 P.C. Attorney• for Oefendant ~~ndablll it•pah: r Inc. ottlc• L P.o. Addrca~s 115 Grocan street :Kln~·•ton, NV lHOl {91-4) "l31-76UO GEL!!tRT ·~ CUTLER, P. C Attorn•¥• tor l"laintif:ts ortic• and P.O. Address $4 Market street Pou(Jhk..-tCp$le 1 NY l260l. (9U) 454,...3250 KoRN.i'l'tLP ~ REW t REWMAN & l!LLSWORTH J' tS'OS. Attorney tor DitLYlNG J\f'FIOAVITS o.f .Dependable Repa-ir, Inc. EXIliBlTS ......... ........ ~." .. ., "' ...... , ... ·.., ..... "' .. -· 1-4, 1-·6, 1-5 1-6 1-7 1--4 1"-"2 1-7 A-G 1-5 A~o l-4 . l-5 .t~.~a UPON TUB FOREGOING PAPERS lT IS ORDEIUm THAT TUlS MOTION and eros a-motion by Peabody International r Corp. attd Dependable R~pair, Inc. for an order .p~rsu"'nt ·to .GP.LR 3212 grantinq aurntnary judrJmcnt in their favot" against the plaintiff distniss:ing pldntiff's • complaint and the cross .. claim asserted against them is granhd. The plaintiff in this action was injured on December 18, 1985 in an accident involving a refuse transfer trailer manufactured by defendant Peabody intetnationlll Corporation (PcabodyJ. The trailet:" was sold to Dependable Rep