Lori Hoover, et al., Respondents,v.New Holland North America, Inc.,, et al., Appellants, et al., Defendants. (And a Third-Party Action.)

Brief

N.Y.February 12, 2014

0 0 To be Argued by: JOHN A. COLLINS, ESQ. Time Requested 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.) BRIEF FOR PLAINTIFFS-RESPONDENTS LORI HOOVER and JESSICA BOWERS LIPSITZ GREEN SCIME CAMBRIA LLP Attorneys for Plaintiffs-Respondents 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 Telephone: (716) 849-1333 JOHN A. COLLINS, ESQ. Of Counsel Date of Completion: August 15, 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 ............................................................................. vii PRELIMINARY STATEMENT ......................................................................... 1 STATEMENT OF THE NATURE OF THE CASE AND THE FACTS............................................................................................... 4 A. THE NATURE OF THE CASE...................................................... 4 B. THE FACTS.................................................................................... 7 1. BY VIRTUE OF THEIR DESIGN, POST HOLE DIGGERS OPERATE IN A MANNER DISTINCT FROM OTHER DRIVELINE- EQUIPPED AGRICULTURAL IMPLEMENTS............. 7 2. AS ORIGINALLY DESIGNED, THE POST HOLE DIGGER THAT INJURED JESSICA BOWERS DID NOT USE A PROTRUDING NUT AND BOLT TO AFFIX THE DRIVELINE TO THE GEARBOX.............................................................. 8 3. THE 1995 REDESIGN OF THE POST HOLE DIGGER CREATED AN UNNECESSARY ENTANGLEMENT HAZARD, VIOLATING THE FUNDAMENTAL PRINCIPLES OF DESIGN SAFETY ................................................................................ 11 4. THE DESIGNERS USED A FLIMSY, INEXPENSIVE GENERIC PLASTIC GUARD THAT RENDERED THE POST HOLE DIGGER NOT REASONABLY SAFE............................................... 13 5. DUE TO ITS INHERENT UNSUITABILITY FOR USE ON THE SERIES 906 HD POST HOLE DIGGER, THE PLASTIC GUARD BROKE APART WHILE DIGGING HOLES, THEREBY EXPOSING THE UNNECESSARY PROTRUDING NUT AND BOLT ON WHICH JESSICA BOWERS’S CLOTHING CAUGHT............... 18 6. ALTHOUGH IT HAD PLENARY CONTROL OVER THE DESIGN OF THE SERIES 906 HD POST HOLE DIGGER, CNH PERMITTED THE INCORPORATION OF THE TWO DESIGN DEFECTS THAT CONSTITUTED SUBSTANTIAL CAUSES OF JESSICA BOWERS’S INJURIES.................... 21 7. JESSICA BOWERS SUSTAINED SEVERE INJURIES, INCLUDING THE TRAUMATIC AMPUTATION OF HER DOMINANT ARM, WHEN SHE WAS PULLED AROUND THE PROTRUDING NUT AND BOLT ON THE DRIVELINE OF THE FORD NEW HOLLAND POST HOLE DIGGER.......................................................... 25 8. THOMAS BERRY, P.E. ESTABLISHED THAT THE SERIES 906 HD POST HOLE DIGGER CONTAINED TWO SEPARATE DESIGN DEFECTS, EACH OF WHICH CONSTITUTED A SUBSTANTIAL FACTOR IN CAUSING JESSICA’S INJURIES......................................................... 27 (a) THOMAS BERRY’S AFFIDAVIT ................................. 28 (b) THOMAS BERRY’S TRIAL TESTIMONY .................. 31 1. THOMAS BERRY ESTABLISHED THAT DEFENDANTS’ USE OF THE UNNECESSARY PROTRUDING NUT AND BOLT ON THE DRIVE SHAFT CONSTITUTED A DESIGN DEFECT, ii AND THAT SAFE AND ECONOMICAL DESIGN ALTERNATIVES WERE READILY AVAILABLE....................................... 31 2. THOMAS BERRY ESTABLISHED THAT DEFENDANTS’ USE OF THE GENERIC PLASTIC GUARD CONSTITUTED A DESIGN DEFECT, AND THAT SAFE AND ECONOMICAL DESIGN ALTERNATIVES WERE READILY AVAILABLE .............................. 33 9. JESSICA BOWERS ESTABLISHED THAT EACH OF THE POST HOLE DIGGER’S TWO SEPARATE DESIGN DEFECTS CONSTITUTED A SUBSTANTIAL FACTOR IN CAUSING HER INJURIES .............................................................................. 36 10. DEFENDANTS’ ENGINEERING EXPERT FAILED TO REFUTE THE EVIDENCE ESTABLISHING THAT THE POST HOLE DIGGER CONTAINED TWO SEPARATE DESIGN DEFECTS, EACH OF WHICH CONSTITUTED A SUBSTANTIAL FACTOR IN CAUSING JESSICA BOWERS’S INJURIES .................. 39 C. THE APPELLATE DIVISION’S DECISION.............................. 42 THE APPLICABLE STANDARD OF REVIEW............................................. 44 ARGUMENT ..................................................................................................... 45 POINT I PLAINTIFF DEMONSTRATED THAT THE SERIES 906 HD POST HOLE DIGGER DESIGN WAS NOT REASONABLY SAFE BECAUSE IT INCORPORATED TWO SEPARATE DESIGN DEFECTS......................................... 45 iii A. PLAINTIFF ESTABLISHED THAT THE USE OF THE PROTRUDING NUT AND BOLT WAS UNNECESSARY AND CONSTITUTED A DESIGN DEFECT................................................................ 47 B. DEFENDANTS’ EXPERT MADE NO EFFORT TO REBUT PLAINTIFF’S EVIDENCE THAT THE REDESIGN OF THE DRIVELINE CREATED AN UNNECESSARY ENTANGLEMENT HAZARD.................. 48 C. PLAINTIFF ESTABLISHED THAT THE USE OF THE GENERIC PLASTIC SHIELD CONSTITUTED A DESIGN DEFECT BECAUSE IT WAS INAPPROPRIATE GIVEN THE POST HOLE DIGGER’S INTENDED AND REASONABLY FORESEEABLE USE ............................................................ 51 D. DEFENDANTS’ RATIONALE FOR USING THE PLASTIC SHIELD WAS UNPERSUASIVE, AND THE JURY REASONABLY REJECTED IT....................... 53 E. PLAINTIFF SATISFIED HER EVIDENTIARY BURDEN UNDER VOSS v. BLACK & DECKER MFG. CO. BY DEMONSTRATING THE EXISTENCE OF FEASIBLE, SAFER ALTERNATIVE DESIGNS .................... 60 POINT II THE DEFECTIVELY DESIGNED POST HOLE DIGGER WAS A SUBSTANTIAL FACTOR IN CAUSING JESSICA BOWERS’S INJURIES .................................................. 62 A. DEFENDANTS’ CLAIM THAT PETER SMITH’S CONDUCT WAS RECKLESS AND CONSTITUTED A SUPERSEDING CAUSE OF JESSICA BOWERS’S INJURIES IS BOTH UNPRESERVED AND WITHOUT MERIT .................... 63 iv B. JESSICA BOWERS PROVED THAT THE DEFECTIVELY DESIGNED POST HOLE DIGGER WAS A SUBSTANTIAL FACTOR IN CAUSING HER INJURIES ...................................................................... 65 POINT III PETER SMITH DID NOT SUBSTANTIALLY ALTER THE POST HOLE DIGGER WHEN HE REMOVED THE BROKEN REMNANTS OF THE PLASTIC SHIELD......................................................................................... 72 A. PETER SMITH DID NOT SUBSTANTIALLY MODIFY THE POST HOLE DIGGER FROM ITS ORIGINAL CONDITION AND THEREBY RENDER A SAFE PRODUCT DEFECTIVE...................... 74 B. PETER SMITH DID NOT CONSCIOUSLY BYPASS THE POST HOLE DIGGER’S BUILT-IN SAFETY FEATURES........................................................... 81 C. DEFENDANTS’ LIABILITY FLOWS FROM THEIR INCORPORATION OF A PLASTIC SHIELD THAT WAS UNFIT FOR ITS INTENDED OR FORESEEABLE USES, NOT FROM THEIR FAILURE TO BUILD AN INDESTRUCTIBLE MACHINE.......................................... 85 POINT IV THE VERDICT WAS NOT BASED ON IMPROPERLY ADMITTED EVIDENCE ..................................................................90 A. THE COURT DID NOT PERMIT THE INTRODUCTION OF IMPERMISSIBLE “TEST” RESULTS....................................................................................90 B. THOMAS BERRY’S EXPERT TESTIMONY AS TO CAUSATION WAS PROPERLY ADMITTED................92 v POINT V THE JURY’S VERDICT WAS BASED UPON LEGALLY SUFFICIENT EVIDENCE .................................... 96 POINT VI THE JURY CHARGE WAS IN ALL RESPECTS PROPER ........................................................................................... 102 A. SUBSTANTIAL MODIFICATION ................................... 102 B. THE BURDEN OF PROOF.................................................... 104 C. STRICT PRODUCTS LIABILITY........................................ 106 CONCLUSION........................................................................................... 109 ____________________0_____________________ APPENDIX Excerpt of Plaintiff-Respondent’s Brief in Moore v. Deere & Co., 195 A.D.2d 1044 (4th Dep’t 1993), lv. denied, 82 N.Y.2d 663 (1993) .............................................................APP-1 Excerpt of Record on Appeal in Moore v. Deere & Co. (Expert Affidavit)................................................................APP-5 Plaintiffs-Appellants’ Brief in Wood v.Peabody Int’l Corp., 187 A.D.2d 824 (3d Dep’t 1992)..............................................................APP-8 vi TABLE OF AUTHORITIES Page CASES Adams v. Genie Indus., Inc., 14 N.Y.3d 535 (2010).......... 45, 48, 53, 60, 62, 107 Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525 (1991)..................................... 73 Argentina v. Emery World Wide Del. Corp., 93 N.Y.2d at 554 (1999) ............ 60 Bernstein v. City of New York, 69 N.Y.2d 1020 (1987) .................................... 69 Bigelow v. Acands, Inc., 196 A.D.2d 436 (1st Dep’t 1993) ............................ 105 Boltax v. Joy Day Camp, 67 N.Y.2d 717 (1986) ............................................... 63 Campbell v. City of Elmira, 84 N.Y.2d 505 (1994)..................................... 45, 47 Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493 (1978) .............................. 96, 97 Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308 (1980)................... 63, 64, 65, 71 Dinardo v. City of New York, 13 N.Y.3d 872 (2009) ............................ 44, 47, 97 Emery World Wide Del. Corp., 93 N.Y.2d 554 (1999) ..................................... 61 Grazier v. Snap-On Corp., 279 A.D.2d 448 (2d Dep’t 2001) ........................... 69 Gutin v. Frank Mascali & Sons, Inc., 11 N.Y.2d 97 (1962).............................. 96 Heary Bros. Lightning Protection Co., Inc. v. Intertek Testing Services, N.A., Inc., 4 N.Y.3d 615 (2005) ......................................................... 96 Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1 (1938) ................................... 68 Kromer v. Beazer East, Inc., 826 F.Supp. 78 (W.D.N.Y. 1993) ....................... 75 Long v. State of New York, 7 N.Y.3d 269 (2006) .............................................. 64 vii Lugo v. LJN Toys, Ltd., 75 N.Y.2d 850 (1990) ................................................. 59 Markel v. Spencer, 5 A.D.2d 400 (4th Dep’t 1958), aff’d, 5 N.Y.2d 958 (1959) .......................................................................................................... 68 Mayorga v. Reed-Prentice Packaging Mach. Corp., 238 A.D.2d 483 (2d Dep’t 1997)........................................................................................... 85 Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376 (1976) ...................................................................... 59, 83, 85, 89 Moore v. Deere & Co., 195 A.D.2d 1044 (4th Dep’t 1993), lv. denied, 82 N.Y.2d 663 (1993)........................................................... 76, 78, 79 Neri v. John Deere Co., 211 A.D.2d 915 (3d Dept 1995) ................................. 82 Office Park Corp. v. County of Onondaga, 64 A.D.2d 252 (1978), aff’d on Appellate Division opinion, 48 N.Y.2d 765 (1979) .................................94 Orlick v. Granit Hotel & Country Club, 30 N.Y.2d 246 (1972) ....................... 58 Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335 (2011)..................................... 44 Quain v. Buzzetta Const. Corp., 69 N.Y.2d 376 (1987) .............................. 64, 97 Price v. New York City Hous. Auth., 92 N.Y.2d 553 (1998) ..................................93 Robinson v. Reed-Prentice Div. of Packaging Mach. Co., 49 N.Y.2d 471 (1980) ........................... 2, 59, 72, 73, 74, 75, 81, 103 Ruthosky v. John Deere Co., 235 A.D.2d 620 (3d Dep’t 1997) ............ 79, 80, 89 Sage v. Fairchild-Swearingen Corp., 70 N.Y.2d 579 (1987)............................ 50 Schafer v. Standard Rwy. Fusee Corp., 200 A.D.2d 564 (2d Dep’t 1994) ....... 89 Schneider v. Kings Highway Hosp. Center, Inc., 67 N.Y.2d 743 (1986).......... 68 Seelinger v. Town of Middletown, 79 A.D.3d 1227 (3d Dep’t 2010).......... 69, 70 viii Selkowitz v. County of Nassau, 45 N.Y.2d 97 (1978) ...................................... 93, 95 Shapiro v. City of New York, 32 N.Y.2d 96 (1973) ............................... 64, 78, 97 Sheppard v. Charles A. Smith Well Drilling & Water Sys., 93 A.D.2d 474 (3d Dep’t 1983)........................................................................................... 89 Swensson v. New York, Albany Despatch Co., Inc., 309 N.Y. 497 (1956) ....... 69 Szczerbiak v. Pilat, 90 N.Y.2d 553 (1997) ........................................................ 44 Trzaska v. Allied Frozen Storage, Inc., 77 A.D.3d 1291 (4th Dep’t 2010).................................................................................. 69, 70 Vega v. Restani Const. Corp., 18 N.Y.3d 499 (2012) ....................................... 44 Vega v. Stimsonite Corp., 11 A.D.3d 451 (2d Dep’t 2004), lv. dismissed, 4 N.Y.3d 759 (2005), lv. dismissed, 6 N.Y.3d 805 (2006) .......................................................................................................... 76 Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 (1983) ...................................................................... 1, 45, 46, 60, 62, 88, 108 Wood v. Peabody Int’l Corp., 187 A.D.2d 824 (3d Dep’t 1992) .... 77, 78, 79, 80 Wyda v. Makita Elec. Works, Ltd., 232 A.D.2d 407 (2d Dep’t 1996)............... 76 STATUTES AND RULES CPLR 3212(b) ............................................................................................ 42, 109 CPLR 4401........................................................................................... 44, 45, 109 CPLR 4404(a). ........................................................................... 6, 44, 45, 63, 109 22 NYCRR 500.11............................................................................................. 64 ix x OTHER AUTHORITIES Karger, Powers of the New York Court of Appeals § 17:1 (Rev. 3d ed.)......... 64 Prince, Richardson on Evidence § 2-209 (Farrell, 11th ed.) ............................. 63 N.Y. PJI 1:70...................................................................................................... 68 N.Y. PJI 1:90...................................................................................................... 70 N.Y. PJI 2:120.................................................................................... 84, 105, 107 N.Y. PJI 2:120 SV-1 ........................................................................................ 104 N.Y. PJI 2:125A....................................................................................... 106, 107 PRELIMINARY STATEMENT Plaintiff-respondent Jessica Bowers sustained severe injuries, including the traumatic amputation of her dominant right arm, when, at the age of 16, she was pulled around the driveline of a Ford New Holland heavy duty post hole digger. Jessica introduced overwhelming evidence demonstrating that the machine contained two separate and independent design defects, each of which constituted a substantial factor in causing her injuries: 1. A completely unnecessary protruding nut and bolt on the rotating driveline, which created an entanglement hazard that was not present when the machine was originally designed; and 2. An inexpensive, generic plastic guard that was not suitable for use on the post hole digger, or for the conditions under which the machine could reasonably be expected to be used. Separately and collectively, the design defects rendered the post hole digger “not reasonably safe” under this Court’s seminal opinion in Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108 (1983). In a desperate attempt to avoid paying their share of damages to Jessica Bowers, and despite the overwhelming evidence, which far surpassed the mere “preponderance of the evidence” required by law, defendants in effect are now asking this Court to create a new exception in the common-law field of products liability tort law. Defendants are asking the Court to hold: 1. Designers, manufacturers, and sellers of a product are insulated from tort liability so long as they put any guard on a product, even if the use of that particular guard constituted a design defect and rendered the product unsafe; and 2. Designers, manufacturers and sellers of a product are insulated from tort liability if an inadequate guard is not replaced when destroyed regardless of the circumstances. In other words, defendants would have the Court act as fact finder with regard to the adequacy of guards, contrary to established law. There is no policy reason to adopt the rule of law defendants now advance. Defendants failed to cite precedents from the highest court in any state recognizing such a novel exception to the body of products liability law, and plaintiff knows of no court that has adopted such an exception. Of course, defendants have not explicitly requested such a ruling because, in all likelihood, they recognize its broad and unprecedented reach. Instead, defendants have undertaken a tortured effort to fit one of the two design defects (in this case, the inadequate guard) into the narrow liability exception enunciated in Robinson v. Reed-Prentice Div. of Packaging Mach. Co., 49 N.Y.2d 47 (1980). In this case, the established facts and evidence simply do not fit into that exception. When viewed with a detached and objective eye, this is an effort to create an entirely separate legal theory of immunity in products liability law. The trial court, at the summary judgment stage and in post-trial proceedings, the jury at the conclusion of the four-week trial, and the Appellate Division all properly and correctly rejected the arguments now advanced by defendants. In 1454318v1 44070.0001 2 doing so, the Appellate Division held: “[T]he proof was sufficient to establish that, inter alia, a protruding bolt that attached the driveline to the gearbox was an entanglement hazard; the plastic gearbox shield used to guard against the protruding bolt could be damaged by normal use or foreseeable misuse of the digger; and there were design alternatives that would have reduced or eliminated the hazards in the subject product and would have resulted in only a nominal increase in cost” (R. 13a). For these reasons, which are more fully articulated below, it is respectfully requested that the Court reject the unique and unsupported proposition of law advanced by the defendants and affirm the Appellate Division’s order. 1454318v1 44070.0001 3 STATEMENT OF THE NATURE OF THE CASE AND THE FACTS A. THE NATURE OF THE CASE. On the morning of October 2, 2004, 16-year-old Jessica Bowers was pulled around the rotating drive shaft of a Ford New Holland tractor-mounted post hole digger (R. 1489-1490). Jessica’s dominant right arm was traumatically severed above the elbow, and could not be reattached (R. 1490-1491; R. 1959-1962; R. 8311). In addition to the amputation, she sustained fractures to her left clavicle, left scapula, and right humerus, and other significant injuries (R. 1568-1569; R. 2073; R. 2089-2090; R. 8498; R. 8530). Jessica and her mother, Lori Hoover, commenced this action to recover monetary damages for the injuries suffered by Jessica, naming as defendants the entities responsible for the design, manufacture, and sale of the post hole digger and certain of its component parts (R. 191-202, ¶¶ 2-61) (collectively, the “Product Defendants”) and Peter A. Smith, the post hole digger’s owner (R. 203, ¶¶ 63-64). The Product Defendants included defendants-appellants CNH America LLC, s/h/a New Holland North America, Inc. f/k/a Ford New Holland, Inc. and Case New Holland, Inc. (collectively, “CNH”), which contracted for the post hole digger’s manufacture and distributed it as a “Ford New Holland” product (R. 194-196, ¶¶ 16-17, 22-24; R. 893; R. 1097), and Niagara Frontier Equipment Sales, Inc., f/k/a 1454318v1 44070.0001 4 Niagara Ford New Holland, Inc. (“Niagara Frontier”), which sold the post hole digger at retail to Peter A. Smith (R. 201-202, ¶¶ 55-56, 59-60; R. 1256-1247). The other Product Defendants were the SMC defendants, which designed and manufactured the post hole digger for CNH (R. 196-197, ¶¶ 27-28, 32-33; R. 893-898); the NEAPCO defendants, which manufactured the post hole digger’s driveline (R. 198-199, ¶¶ 37-38, 42-43; R. 949-950); and GKN Walterscheid, Inc. (“Walterscheid”), which manufactured a generic plastic guard that had originally been placed over an unnecessary protruding nut and bolt the driveline, which caught Jessica Bowers’s jacket and pulled her around the driveline (R. 199-201, ¶¶ 46-47, 51-52; R. 1021-1022). Plaintiffs interposed causes of action against the Product Defendants sounding in negligence and strict products liability (R. 194-202, ¶¶ 17, 23-24, 28, 33-34, 38, 42-43, 47, 51-52, 56, 59-60). Plaintiffs alleged that Peter Smith had negligently failed to maintain, repair, and control the post hole digger (R. 203, ¶¶ 63-64). CNH commenced a third-party action against Gary Hoover, who was operating the tractor and post hole digger at the time of Jessica Bowers’s accident (R. 147-178). Mr. Hoover, who was Jessica’s stepfather, died during the action’s pendency (R. 290; R. 295). Kyle P. Andrews, the Niagara County Treasurer, was 1454318v1 44070.0001 5 substituted as third-party defendant in his capacity as Temporary Administrator of Mr. Hoover’s estate (R. 290-293). Upon the completion of pretrial disclosure, all defendants moved for summary judgment (R. 287-365; R. 4241-4267). Supreme Court granted so much of the Product Defendants’ motions as sought the dismissal of plaintiffs’ manufacturing-defect and failure-to-warn claims, but denied their motions insofar as they sought dismissal of plaintiffs’ design-defect claims (R. 32). The court also denied Peter Smith’s summary judgment motion (R. 294-296). The action was then tried before a jury (R. 501-502; R. 3951-3952). Lori Hoover discontinued her individual claims during the course of the trial (R. 51), and Jessica Bowers settled with Peter Smith, SMC, NEAPCO, and Walterscheid (R. 965-970). The jury returned a verdict in Jessica’s favor, apportioning liability as follows: CNH - 35%; SMC Corporation - 30%; Peter Smith - 30%; the Estate of Gary Hoover - 3%; and Niagara Frontier - 2% (R. 4118-4119; R. 8193). The jury awarded $1,000,000 for Ms. Bowers’s past pain and suffering, $4,000,000 for her future pain and suffering, and $3,811,587 for economic damages including past and future lost earnings and medical expenses (R. 4119-4124; R. 8193-8195). CNH and Niagara Frontier moved pursuant to CPLR 4404(a) for judgment notwithstanding the verdict or, alternatively, to set aside the verdict upon the 1454318v1 44070.0001 6 ground it was contrary to the weight of the evidence (R. 7535-7562; R. 7651- 7665). Jessica Bowers opposed the motion and moved to set aside, as inadequate, the award for past pain and suffering (R. 7643; R. 7720-7732; R. 7808-7813). Supreme Court denied the post-trial motions (R. 102-105), and a Judgment in Jessica Bowers’s favor was entered on September 30, 2011 (R. 47-58). CNH appealed the Judgment (R. 5-10). Jessica Bowers cross-appealed (R. 11-15). By Memorandum and Order entered November 16, 2012, the Fourth Department unanimously affirmed the Judgment (R. 11a-13a). The Court of Appeals granted CNH and Niagara Frontier’s motion for leave to appeal by Order entered April 30, 2013 (R. 5a-6a). B. THE FACTS. 1. BY VIRTUE OF THEIR DESIGN, POST HOLE DIGGERS OPERATE IN A MANNER DISTINCT FROM OTHER DRIVELINE-EQUIPPED AGRICULTURAL IMPLEMENTS. A tractor-mounted post hole digger, such as the Ford New Holland Series 906 heavy duty post hole digger at issue in this action, is an agricultural implement designed to dig holes in the ground for wooden posts (R. 1719-1720). In its most generic form, a tractor-mounted post hole digger has a driveline, a gearbox, an auger, and a frame to hold the component parts upright and in place (R. 1730- 1732). The driveline attaches to the power take off unit (PTO) of a tractor (R. 1454318v1 44070.0001 7 1720-1721). The PTO rotates the driveline, which transmits power to the gearbox, which turns the auger, which drills the hole (R. 1720-1722; R. 1730-1733). Many agricultural implements use a driveline rotated by power received from a tractor PTO (R. 1721-1722). However, a post hole digger is unique because, unlike most farm implements where the driveline remains in a stationary position, the post hole digger driveline articulates vertically as the auger is moved up and down during the drilling process (R. 1733; R. 1739; 1794-1796). This vertical movement has important implications for the type of guarding that is necessary to withstand normal use. 2. AS ORIGINALLY DESIGNED, THE POST HOLE DIGGER THAT INJURED JESSICA BOWERS DID NOT USE A PROTRUDING NUT AND BOLT TO AFFIX THE DRIVELINE TO THE GEARBOX. In the late 1980’s and early 1990’s, defendant CNH – which at the time was known as “Ford New Holland” (R. 1143-1144) – designed and manufactured agricultural tractors (R. 2856). It did not design and manufacture the accessory implements, such as post hole diggers, that could be mounted on them (R. 1148- 1149; R. 2847-2848; R. 2855-2856). Rather, it obtained those implements from independent “original equipment manufacturers” (OEMs), and sold them through its dealers as Ford-branded or Ford New Holland-branded products (R. 1081; R. 1148-1149; R. 2847-2848; R. 2855-2856). SMC was one of CNH’s OEMs (R. 2848). 1454318v1 44070.0001 8 Despite the fact that SMC had never before designed or manufactured a post hole digger, in 1989 or 1990 CNH asked SMC to design and produce one for use on its agricultural tractors (R. 767-768; R. 897-898). CNH provided SMC with another manufacturer’s post hole digger to use as a prototype (R. 768-769). SMC then developed its own prototype for CNH (R. 770), and ultimately manufactured one model, the Series 906, which encompassed light-duty, medium-duty, and heavy-duty versions of the same basic design (R. 899). SMC produced the first Series 906 post hole diggers for CNH in 1990 or 1991 (R. 898). David Horrman, SMC’s chief “engineer” (who has no college degree), oversaw the design of the post hole digger (R. 765; R. 877-878; R. 896-897; R. 3798). SMC engineer Kermit Hillman also worked on the project (R. 896-897; R. 3790). Scott Hanson, an SMC draftsman who was not an engineer, was primarily responsible for the design (R. 896-897; R. 3798). Mr. Horrman and Mr. Hillman each testified that product designers must comply with the universally accepted principles of safety design engineering, which provide: 1. All hazards must be eliminated during the design phase to the extent possible; 2. If a hazard cannot be eliminated through design, only then may the hazard be guarded; and 3. Only if the hazard cannot be eliminated and cannot be guarded may warnings alone be used. (Hillman Testimony, R. 787; R. 6967-6971; Horrman 1454318v1 44070.0001 9 Testimony, R. 904; R. 941-942; R. 963-964; R. 5604-5606; R. 5669-5670; R. 5706.) NEAPCO engineer Demetrios Velikaris concurred that all product designers must comply with those precepts, which he characterized as “fundamental principles of design safety” that “apply across the board, no matter what you’re trying to design” (R. 2838-2841). As originally designed and manufactured, the Series 906 HD post hole digger did not use a protruding nut and bolt to affix the driveline to the gearbox. Instead, it incorporated a slip clutch at that juncture, the purpose of which was to disengage if the driveline was subjected to excessive torque (R. 806; R. 936-937; R. 950-951; R. 1107; R. 1109). The slip clutch had a smooth, protrusion-free exterior surface (R. 950-952; R. 1109; R. 1111-1112). At the opposite end, the drive line connected to the tractor PTO via a quick- attach hub, which is also known as a slip joint, slide collar, or snap collar (R. 802; R. 916-917; R. 1157; R. 1159; R. 1251). Quick-attach hubs, which have an outer collar that can be slid forward or back to connect or disconnect two shafts, have smooth, protrusion-free exterior surfaces (R. 1159). A protrusion-free quick-attach hub with attached U-joint yoke was introduced into evidence as Plaintiffs’ Exhibit 154. 1454318v1 44070.0001 10 3. THE 1995 REDESIGN OF THE POST HOLE DIGGER CREATED AN UNNECESSARY ENTANGLEMENT HAZARD, VIOLATING THE FUNDAMENTAL PRINCIPLES OF DESIGN SAFETY. In 1994-1995, SMC changed the design of the driveline on the post hole digger driveline, resulting in the incorporation of the protruding nut and bolt that entangled Jessica Bowers’s clothing. SMC solicited quotations from NEAPCO for a new driveline incorporating the changes (R. 1670-1672). NEAPCO provided a quotation for a driveline that contained a protrusion-free quick-attach connection at each end, as in the original Series 906 model (R. 1672-1674). SMC’s personnel claimed they were concerned, however, that if the same connection mechanism was used on each end a user might reverse the driveline and inadvertently attach the end with the shear bolt to the gearbox input shaft rather than to the PTO (R. 819; R. 918-919; R. 943; R. 946). SMC therefore decided against the protrusion- free connection and instead created an unnecessary entanglement hazard by attaching the driveline to the gearbox input shaft with a protruding bolt and nut (R. 824-825; R. 935; R. 3057-3058; R. 8208). Photographs depicting the U-joint on Peter Smith’s post hole digger, with the protruding nut and bolt, are reproduced at R. 8974 (bottom); R. 8975 (top); and R. 8978 (top). In addition, plaintiffs introduced into evidence at trial an exemplar U-joint yoke, with protruding nut and bolt (Plaintiffs’ Exhibit 156). 1454318v1 44070.0001 11 Kermit Hillman and David Horrman of SMC conceded that the addition of the protruding nut and bolt created an entanglement hazard (R. 800-801; R. 819- 820; R. 922; R. 938). The entanglement hazard caused by the protruding nut and bolt, Mr. Horrman admitted, was greater than the hazard posed by protrusion-free rotating parts (R. 1020). Mr. Horrman further admitted that the entanglement hazard could have been eliminated by recessing the nut and bolt or using a protrusion-free slide collar (R. 942-945). He and Mr. Hillman each admitted that, under the universally accepted safety design principles that they deemed authoritative, SMC should have eliminated the entanglement hazard (R. 801; R. 963-964). Nevertheless, Mr. Horrman admitted that SMC violated that safety design principle when it left the unnecessary entanglement hazard it had created in place, and simply covered it with a plastic shield it obtained from Walterscheid (R. 963; R. 1020-1022). Kermit Hillman conceded that eliminating the protruding nut and bolt would not have resulted in a substantial increase in cost (R. 801), and admitted that SMC never considered recessing the nut and bolt to eliminate the unnecessary protrusion and corresponding entanglement hazard (R. 827). Nolan House, a design engineer for Walterscheid (which manufactures agricultural drivelines as well as plastic shields [R. 1675-1677]), testified that different spline configurations could have been used on each end of the Series 906 1454318v1 44070.0001 12 post hole digger’s driveline, which would have eliminated the extremely remote possibility that the driveline could be reversed if removed and reinstalled by the user (R. 1678-1679), thereby eliminating SMC’s sole rationale for using the protruding nut and bolt and unnecessarily creating an entanglement hazard. Mr. House also testified that, in the mid-1990’s, Walterscheid could have supplied a U- joint with countersunk holes in the collar so the protruding nut and bolt would have been recessed, thereby eliminating the entanglement hazard (R. 1679-1680). The designers from SMC nevertheless decided to create a completely unnecessary entanglement hazard by incorporating a protruding nut and bolt instead of a protrusion-free connection (R. 800-801; R. 803; R. 819-820; R. 938). SMC began incorporating protruding bolts and nuts at the gearbox input shaft in 1995 (R. 947-948). The post hole digger that injured Jessica Bowers contained the protruding nut and bolt connection (R. 8974 [bottom]; R. 8975 [top]; and R. 8978 [top]). 4. THE DESIGNERS USED A FLIMSY, INEXPENSIVE GENERIC PLASTIC GUARD THAT RENDERED THE POST HOLE DIGGER NOT REASONABLY SAFE. SMC engineer Kermit Hillman testified that the prototype post hole digger that CNH provided to SMC in 1989-1990 had a metal guard covering the driveline/gearbox connection (R. 770-771). Even though SMC had no experience designing post hole diggers, it decided to employ a plastic shield on the Series 906 1454318v1 44070.0001 13 post hole digger that it developed for CNH (R. 782). The shield cost only $6.14 (R. 1684), and was the cheapest component on the post hole digger (R. 1047). Although no supporting documentation was ever produced, Mr. Hillman claimed the decision was made because CNH’s service department had informed SMC that a problem could potentially arise if the post hole digger was being transported down the road at full speed and the tip of the auger hit the pavement, as it would force the auger back, causing the driveshaft to come in contact with the metal shield, thereby potentially causing damage to the driveline, not to the guard (R. 773-779). The truthfulness of that claim was a topic of dispute at trial, and the likelihood and frequency of such an occurrence was shown to be extremely remote. Mr. Hillman admitted that SMC did not know the frequency with which such claimed incidents had occurred, and that SMC never conducted any tests to see if the purported problem actually existed (R. 776-778). He also admitted that CNH reported no other potential problems with metal shields; that he had never seen a damaged shield; and that SMC never received any documentation regarding damaged metal shields (R. 776-778). Nor did SMC have any documentation indicating that metal shields were not durable, Mr. Hillman admitted (R. 829). Although they had no evidence that metal guards lacked durability or were otherwise unsuitable for use on post hole digger gearbox connections, SMC’s designers decided to use generic, off-the-shelf plastic shields on the Series 906 post 1454318v1 44070.0001 14 hole diggers (R. 1026-1027; R. 1031). Their decision, they claimed, was influenced by the fact that such shields were flexible, durable, and provided 360- degree coverage (R. 782; R. 829; R. 831; R. 834; R. 1023-1024). They took no steps whatsoever to determine whether plastic shields were durable when used on post hole diggers, however. Kermit Hillman admitted that SMC was aware the plastic guard on the Series 906 post hole digger would hit the ground during the drilling process (R. 843; R. 845). He also admitted that, as a product designer, he was “required to look into some inadvertent error on the part of the operator, any foreseeable misuse of the . . . machine in the design phase and the testing phase (R. 845). Notwithstanding that, SMC performed no specific durability testing of the plastic guard (R. 841-846) and never asked Walterscheid, the manufacturer of the guard, what durability testing – if any – it had performed on the plastic guard while affixed to a post hole digger (R. 846-847). In particular, Mr. Hillman admitted, SMC made no effort to determine under what conditions the plastic guards could crack on a post hole digger (R. 856). SMC conducted no such testing even though its designers were well aware that, if the shield was damaged or destroyed, the unnecessary protruding nut and bolt posed a significant entanglement hazard (R. 856). 1454318v1 44070.0001 15 Mr. Hillman also admitted that Walterscheid had informed SMC it was SMC’s responsibility to determine whether the shield met the requirements for the post hole digger under the operating conditions that would be found in the field (R. 847). Walterscheid representative Nolan House reiterated that, testifying: “We offer the guard. It’s up to the machine manufacturer to determine if it’s acceptable to their application” (in this case, a post hole digger with an articulating driveline) (R. 3830). Nevertheless, Kermit Hillman conceded that SMC never studied how plastic post hole digger shields would actually hold up in the field (R. 792-793). SMC never tested how many times the driveline on the post hole could contact the Walterscheid plastic shield before damaging it (R. 841). SMC conducted no such testing, Mr. Hillman claimed, because it concluded that contact with the ground was not “the normal operation of . . . that post hole digger” (R. 844). However, David Horrman, Mr. Hillman’s co-employee, admitted that protective guards should be constructed of material “substantial enough . . . to withstand all known conditions” (R. 1071 [emphasis supplied]). He further admitted that, so long as a machine’s function is not affected, guards should be constructed of material that is similar in quality to the other components (R. 1071). Nevertheless, Mr. Horrman admitted, SMC never performed any tests to determine the relative durability of plastic versus metal shields, and their 1454318v1 44070.0001 16 respective abilities to withstand impacts or contact with the ground (R. 1031- 1036). Instead, the company simply concluded without a factual basis “that because the shield was flexible, it could take some abuse without becoming damaged” (R. 1032). Nolan House of Walterscheid, a design engineer since 1994 (R. 1675), testified that studies dating back a number of years showed that guards and shields on agricultural implements such as post hole diggers are commonly removed by the users, or damaged through use (R. 3831-3832). Nevertheless, he admitted, the company had conducted only two durability tests on shields of the generic type incorporated into the Series 906 post hole diggers, neither of which involved determining how the shield would hold up on a post hole digger in applications where it would foreseeably come in contact with the ground or a rotating driveline. Walterscheid conducted only: (1) A “cold impact test,” in which the shield is cooled to minus 35 degrees Celsius and hit once with a weight dropped from a height, and (2) a “side-load test,” in which the side of the shield is pushed one time with 270 pounds of force (R. 1681-1684). No one testified that these “tests” would in any way predict durability with a post hole digger, which can and does permit direct contact of the guard with the ground and the driveline during the drilling process. 1454318v1 44070.0001 17 Like Kermit Hillman of SMC, CNH engineer Steven Schlotterbeck admitted that it was possible the gearbox shields would come in contact with the ground (R. 1116-1117), which would cause them to flex and contact the rotating driveline. He also admitted that shields on the Series 906 HD post hole digger should last the life of the machine (R. 1116). In both their statement of facts and argument, defendants assert that the Owner’s Manual instructed users to avoid submerging the auger’s flighting, thereby “indicating that the gearbox safety shield was not intended to contact the ground or be in a position to contact the driveline.” Brief for Defendants- Appellants, pp. 8-9, p. 32. That claim is false. The manual states only that the auger should not be submerged above the flighting “as this will cause binding and overloading” (R. 8220, Col. 1). That is the only reference to a potential issue related to digging depth, and it does not relate to guard damage. Moreover, CNH engineer John Riffanacht admitted that the Operator’s Manual did not caution against the guard contacting the ground, or state that the guard would be damaged if that occurred (R. 1176). Mr. Riffanacht also admitted that, by virtue of their heavy-duty rating, Series 906 HD post hole diggers would be subjected to greater forces and stresses than lighter duty models (R. 1177). 5. DUE TO ITS INHERENT UNSUITABILITY FOR USE ON THE SERIES 906 HD POST HOLE DIGGER, THE PLASTIC GUARD BROKE APART WHILE DIGGING HOLES, THEREBY EXPOSING THE UNNECESSARY 1454318v1 44070.0001 18 PROTRUDING NUT AND BOLT ON WHICH JESSICA BOWERS’S CLOTHING CAUGHT. Peter Smith purchased the post hole digger in 1996 and mounted it on a Ford tractor that he owned (R. 1245-1246; R. 6431-6434). The post hole digger was equipped with an optional hydraulic down-pressure kit, which, when activated, exerts additional downward force on the auger (R. 1065-1066; R. 1246-1249; R. 6435; R. 6450; R. 8220; R. 8227). Mr. Smith bought the machine to dig post holes at his Niagara County vineyard (R. 1260). He used it for that purpose alone, and never abused it (R. 1260-1263). Peter Smith testified that, during normal use, the shield and driveline would at times contact the ground (R. 1263; R. 6625). This could occur for two reasons, he stated: (1) under certain soil conditions, the auger would at times get “sucked into” the ground inadvertently, suddenly drilling all the way down despite his efforts to stop it; and (2) he drilled the end posts for his grape trellises at an angle for stability, as a result of which the gearbox, driveline and shield would sometimes contact the ground near the end of the drilling process (R. 1264-1269; R. 1273; R. 1286-1287; R. 1329; R. 1396; R. 1402-1403; R. 6625-6626). Mr. Smith testified that when the shield came in contact with the ground it would flex upward and press against the rotating driveline, causing damage to the shield (R. 1264-1269; R. 1333; R. 1402-1403). In the two-year period after he acquired the post hole digger, he said, the original plastic shield got “chewed up, 1454318v1 44070.0001 19 pushed up” as a result of such contact (R. 1273-1274; R. 6625-6626). The shield eventually “got tore off” (R. 1274; R. 6624). Mr. Smith reattached the shield to the gearbox numerous times using a succession of larger washers beneath the bolt heads (R. 1274; R. 6580-6581). He finally removed the broken remnants of the original shield within “[a] couple years” because the shield had disintegrated to the point where it would not stay on and was not providing protection (R. 1274-1276; R. 6624-6626). Mr. Smith removed the remains of the plastic shield only because it “would be hanging there,” and “wouldn’t properly stay on anymore” (R. 1275; R. 6624-6626). He did not replace the shield “[b]ecause it didn’t hold up” (R. 1276; R. 6626). As a result of the plastic shield’s destruction, the U-joint yoke and protruding nut and bolt were unguarded (R. 1275-1276; R. 6627; R. 8297 [bottom]). Contrary to defendants’ assertion, Peter Smith did not supply the evidentiary missing link in their effort to establish that metal gearbox shields were unsuitable for use on post hole digger gearboxes. According to defendants, Mr. Smith testified that he had removed a metal gearbox shield from another post hole digger that had been purchased in the 1960’s because it had become “bent and mangled.” Brief for Defendants-Appellants, p. 19. That is false. Mr. Smith testified at trial that his grandfather had purchased the other post hole digger, with a metal shield, in 1960 (R. 1277). The shield was still in place when Mr. Smith acquired the farm 30 years 1454318v1 44070.0001 20 later in 1990 (R. 1278-1279). Although the shield was bent, he said, it still worked (R. 1279). It was ultimately removed only because the 30+ year old gearbox “blew . . . apart” and had to be welded back together, after which the shield no longer fit (R. 1279). Thus, contrary to defendants’ argument, Peter Smith’s experience with a metal gearbox guard does not establish that such guards are not durable. To the contrary, it establishes that the shield was as durable as the gearbox to which it was affixed, and lasted over 30 years. Nor does his experience evidence a predisposition on his part to remove guards for no good reason, as defendants also assert. 6. ALTHOUGH IT HAD PLENARY CONTROL OVER THE DESIGN OF THE SERIES 906 HD POST HOLE DIGGER, CNH PERMITTED THE INCORPORATION OF THE TWO DESIGN DEFECTS THAT CONSTITUTED SUBSTANTIAL CAUSES OF JESSICA BOWERS’S INJURIES. In 1989-1990, when the Series 906 post hole digger was being designed, Stephen Schlotterbeck was employed by CNH as a product evaluation specialist for the company’s consumer products, which were made by outside suppliers (R. 1077-1081). Mr. Schlotterbeck testified that Ford New Holland (as CNH was then known) would simply purchase the products, paint them blue, and put its name on them (R. 1081; R. 1097). He admitted that, “from the public’s standpoint, it’s a Ford New Holland product” (R. 1098). 1454318v1 44070.0001 21 Mr. Schlotterbeck evaluated OEM products and the suppliers’ testing methodology, but did not actually perform any hands-on testing (R. 1083; R. 1086; R. 1128). Although he claimed that safety is “a primary part of our analysis,” he admitted that CNH did not maintain any formal criteria for assessing the safety of a product made by an outside supplier (R. 1092-1094). Mr. Schlotterbeck also admitted that CNH never made any inquiries into how the OEM products bearing its name were being used or holding up in the field (R. 1094-1097). CNH “would not continue to test that sort of product because they weren’t involved in the original testing” (R. 1097). By contrast, when CNH markets products of its own design and manufacture, it continuously performs field testing and observation to determine how the equipment holds up during actual use (R. 1095-1096). In particular, Mr. Schlotterbeck said, CNH assesses the durability of its products’ shielding by testing them during both the design phase and the post-sale phase (R. 1096-1097). Addressing the Series 906 post hole digger, Mr. Schlotterbeck said “testing was . . . done by SMC. It’s their product and their design” (R. 1093). Mr. Schlotterbeck admitted that, to his knowledge, SMC did not perform any durability tests on the plastic shield during the design phase and CNH never inquired whether any such testing had taken place (R. 1113-1114). He further admitted that, to his knowledge, no one else had ever tested the shield with regard 1454318v1 44070.0001 22 to its durability (R. 1115). Rather, Mr. Schlotterbeck said, CNH assumed that, because the shield was purportedly an “industry standard,” it was sufficiently durable for use on the Series 906 post hole digger (R. 1115). Like Steven Schlotterbeck, agricultural engineer John Riffanacht worked for CNH overseeing the OEMs that manufactured accessories for the company (R. 2846-2849; R. 3028). Mr. Riffanacht admitted that, notwithstanding the “hands- off” approach to which Mr. Schlotterbeck testified, CNH certainly had the authority to dictate the specifications for the machine that SMC was building on CNH’s behalf (R. 1153-1155; R. 3038-3041; R. 3045). Mr. Riffanacht admitted that CNH should have assessed and approved the driveline guarding in 1989-1990, when the machine was being designed (R. 1165). CNH, he said, should have conducted two reviews before accepting the SMC post hole digger for production and sale: a “safety review” and a “validation review” (R. 3050-3051). The purpose of the safety review, he said, was to ensure that there were no deficiencies with regard to functionality, safety, or reliability (R. 3051). Mr. Riffanacht stated that the safety review should have culminated in a written report (R. 3051-3054). He admitted, though, that he had never seen such a report even though, in accordance with CNH’s document retention policy, it should have been present in the file when he became involved in the Series 906 product line in the mid 1990’s (R. 2861; R. 3054-3056; R. 3126; R. 3138). 1454318v1 44070.0001 23 Mr. Riffanacht was a member of CNH’s OEM liaison team with respect to the 1994-1995 design change for the Series 906 HD post hole digger, when the protruding nut and bolt were added to driveline/gearbox connection (R. 2848; R. 2861). He admitted that he was aware the protruding nut and bolt were being added (R. 3085; R. 3088), thereby creating an entanglement hazard (R. 1162; R. 1178). Mr. Riffanacht conceded that the addition of the protruding nut and bolt on the U-joint collar constituted a “distinct change to the product” (R. 3057-3058), and that the design change should have been reviewed by his department and reported to his manager (R. 3059-3060). He had “no evidence,” though, that CNH conducted a safety review or prepared a written report in connection with the 1994-1995 addition of the protruding nut and bolt to the driveline connection and concomitant creation of an entanglement hazard (R. 3060). Mr. Riffanacht admitted that a protrusion-free connection could have been employed instead of the protruding nut and bolt connection with no impairment of function (R. 3077-3078). Although the established principles of safety design engineering require that hazards must be eliminated if possible rather than simply guarded, Mr. Riffanacht claimed that the protruding bolt connection was appropriate because the resulting entanglement hazard was covered by a shield (R. 3085-3087). 1454318v1 44070.0001 24 Addressing the initial design development of the Series 906 post hole digger in 1989-1990, Mr. Riffanacht acknowledged that the auger teeth and shear bolts were the only parts that underwent durability testing (R. 3093-3095). He admitted that CNH did not conduct any impact testing to assess the durability of the plastic guard even though the auger “could just screw itself into the ground” and force the guard onto the ground (R. 3095; R. 3107-3109). Peter Smith testified that his Series 906 HD post hole digger did in fact get “sucked into” the ground in that manner (R. 1264-1269; R. 1273; R. 1329; R. 1396; R. 1402-1403; R. 6625-6626). Although he agreed that products are normally designed for foreseeable but unintended uses, Mr. Riffanacht admitted that “he would design for intended use under normal conditions” (R. 3099-3100 [emphasis supplied]). He further admitted that he would “not necessarily” take into account uses that were foreseeable but unintended (R. 3101). Mr. Riffanacht also admitted that, although the Operator’s Manual states that only “qualified” persons should operate the post hole digger (R. 3129), engineers should take into account the known reality that young persons will use farm machinery, and will get close to PTO’s and moving equipment while doing so (R. 3114-3116). He further admitted that design engineers must anticipate that users will inadvertently contact moving parts on a machine (R. 3138-3141). 7. JESSICA BOWERS SUSTAINED SEVERE INJURIES, INCLUDING THE TRAUMATIC AMPUTATION OF HER 1454318v1 44070.0001 25 DOMINANT ARM, WHEN SHE WAS PULLED AROUND THE PROTRUDING NUT AND BOLT ON THE DRIVELINE OF THE FORD NEW HOLLAND POST HOLE DIGGER. On October 1, 2004, Gary Hoover, Jessica Bowers’s stepfather, borrowed Peter Smith’s tractor and the attached Ford New Holland post hole digger in order to dig post holes for a fence at his home (R. 1301; 1309-1310; R. 2743-2744; R. 6462-6464). Mr. Smith, a family friend, owned a vineyard in Lockport, New York and co-owned a winery with Lori Hoover, Gary’s wife and Jessica’s mother (R. 1213; 1242-1245; R. 6420-6424). The next morning, Gary Hoover, assisted by his wife, began digging the fence holes (R. 2744-2747; R. 2751-2752; R. 2786). Mr. Hoover, who had limited experience with the machine, used it in the way he had previously been shown by Peter Smith (R. 2731-2735; R. 2744-2752). After Gary and Lori successfully dug approximately five holes, Mr. Smith telephoned and asked Lori to assist in serving a large group of customers who had just arrived at the winery (R. 2751-2752). Gary Hoover then asked Jessica Bowers, his 16-year-old stepdaughter, to assist him in digging the post holes (R. 1484-1487; R. 2752). Jessica had never before seen, used, or assisted in the use of, a post hole digger (R. 1484). Using the same method he and his wife had used, Mr. Hoover had Jessica hold the gearbox to steady the auger while he remained on the tractor seat (R. 1488-1489; R. 2750). She stood to the right (i.e., “passenger” side) of the post hole 1454318v1 44070.0001 26 digger while doing so (R. 3599). After briefly assisting her stepfather, Jessica went inside to get a jacket because the day was cool or windy (R. 1487; R. 2753). Mr. Hoover testified that he did not engage the PTO while Jessica was holding onto the gearbox (R. 2750-2751). Jessica recalled holding the gearbox to steady the auger, but could not recall having held it “as the auger was going down” (R. 2349). Jessica and Gary completed two to three holes using this method (R. 1489; R. 2754). They then started another hole using the same procedure (R. 1489). Jessica suddenly felt herself spinning around, and realized she had been pulled into the machine (R. 1489-1490). When it stopped she was caught on the driveline, suspended above the ground (R. 1490-1491; R. 1493). She felt that both her arms were “tingly” (R. 1401). She saw that her right arm had been severed, and was lying on the ground (R. 1491). In addition to the traumatic amputation she sustained fractures of her left scapula and clavicle and right humerus (R. 1568- 1569; R. 2073; R. 2089-2090; R. 8498; R. 8530). 8. THOMAS BERRY, P.E. ESTABLISHED THAT THE SERIES 906 HD POST HOLE DIGGER CONTAINED TWO SEPARATE DESIGN DEFECTS, EACH OF WHICH CONSTITUTED A SUBSTANTIAL FACTOR IN CAUSING JESSICA’S INJURIES. Plaintiffs submitted an expert affidavit by Thomas Berry, P.E., a mechanical engineer, in opposition to CNH’s motion for summary judgment (R. 6908-6918). 1454318v1 44070.0001 27 Mr. Berry subsequently testified at trial (R. 1684-1952). Mr. Berry has Bachelor’s and Master’s degrees in mechanical engineering, and is a licensed professional engineer (R. 1687-1688; R. 1691; R. 6909, ¶ 1; R. 6919). He has over thirty years experience in the design and engineering of agricultural equipment, and is a member of various professional societies, including the American Society of Mechanical Engineers and the American Society of Agricultural and Biological Engineers (formerly the American Society of Agricultural Engineers) (R. 1687- 1688; R. 1692; R. 6909, ¶ 2; R. 6919-6921). His affidavit and trial testimony are described below. (a) THOMAS BERRY’S AFFIDAVIT. In moving for summary judgment, CNH adopted by reference the affidavits of SMC engineering manager David Horrman (R. 4508-4510) and agricultural engineer James L. Suhr (R. 4514-4517), both of which had been submitted by SMC in support of its summary judgment motion. Mr. Horrman described the plastic guard that SMC had used on the Series 906 post hole digger (R. 4510, ¶¶ 5- 6). Mr. Suhr claimed that plastic shields are widely used on “farm equipment” in the United States, and that the shield on the Ford New Holland Series 906 post hole digger was a “well-designed and typical example of such shield” (R. 4516, ¶¶ 6-7). He admitted that Mr. Smith’s use of the post hole digger to dig corner posts was appropriate, but claimed that such use did not require that the shield hit the 1454318v1 44070.0001 28 ground (R. 4516, ¶ 8). Mr. Suhr failed to address Peter Smith’s deposition testimony – confirmed by SMC designer Kermit Hillman and CNH engineer Steven Schlotterbeck – that under normal use the auger will get “sucked into” the earth, causing the shield to contact the ground and bend upward into the rotating driveline, thereby damaging the shield (R. 843; R. 845; R. 1116-1117; R. 1263- 1269; R. 1273). In responding to the Horrman and Suhr affidavits and the other evidence submitted by CNH and Niagara Frontier, Thomas Berry stated that the post hole digger should have been designed and produced in accordance with the following safety design principles, which have been recognized and accepted since the mid 1940’s: a. Identify all hazards and related risks relative to a particular machine and its use; b. If the hazard can cause serious injury or death, it must be eliminated unless the elimination of the hazard defeats the function of the machine or unreasonably increases the cost; c. Once all steps to eliminate the hazard have been exhausted, the remaining hazards may be addressed by the use of various guarding techniques. The guards provided shall be substantial, designed to last the life of the machine and made integral to the design (i.e., necessary for the machine to function); d. If it is impossible to design the machine with an integral guard, the substantial guard must be non-removable, meaning that it cannot be easily removable or detached with ordinary tools. A guard that is easily damaged or removed is not an acceptable guard; e. If it is impossible to design the machine with a substantial, fixed guard that is integral to the function of the machine or permanently attached, then the guard or shield must be 1454318v1 44070.0001 29 interlocked, which means that the machine cannot operate when the guard or shield is removed; f. Once all the steps to eliminate and guard the hazard have been exhausted, then warning instructions are to be provided. These warnings must be of a nature which can be practically followed for avoiding the hazards. However, warnings are not a substitute for positive mechanical safeguards. [R. 6910-6911, ¶ 6.] Mr. Berry opined that the Series 906 post hole digger incorporated two design defects that violated those principles and constituted substantial causes of Jessica Bowers’s injuries: (1) the use of the unnecessary protruding nut and bolt on the driveline/gearbox connection (R. 6910, ¶¶ 5-22), and (2) the use of the plastic shield on a post hole digger, which had not been properly tested and was inadequate and prone to failure given the foreseeable likelihood that (a) the guard would contact the ground and rotating driveline and sustain damage, and (b) the guard would not be replaced once damaged (R. 6914-6917, ¶¶ 23-41). Mr. Berry identified safer alternatives for each of the design defects. Rather than using the protruding nut and bolt at the gearbox connection, the defendants should have employed a protrusion-free slide collar, as they had before the 1995 redesign, or non-protruding connection hardware such as roll pins or recessed nuts and bolts, which were readily available (R. 6912, ¶¶ 11-14). Their use would not have affected the machine’s function or appreciably increased its cost (R. 6912- 6913, ¶¶ 13-17). 1454318v1 44070.0001 30 Addressing the shield, Mr. Berry stated defendants could and should have incorporated one of two types of metal guards over the gearbox connection: (1) an “integral guard” (i.e., one that would render the machine unusable if removed), or (2) a rugged steel shield rather than a bendable plastic one (R. 6914-6917, ¶¶ 23- 41). Neither guard would have unreasonably increased the defendants’ manufacturing costs, Mr. Berry said (R. 6915, ¶ 26; R. 6917, ¶ 39). Nor would they have impaired the post hole digger’s function (R. 6915, ¶ 25; R. 6917, ¶ 38). (b) THOMAS BERRY’S TRIAL TESTIMONY. Consistent with his affidavit and the testimony of David Horrman and Kermit Hillman of SMC and Demetrios Velikaris of NEAPCO, Thomas Berry testified that there is a universally accepted hierarchical principle that governs the safe design and engineering of machinery: (1) If possible, eliminate the hazard posed by moving parts; (2) only if elimination is not possible may adequate guards be used to cover the hazard to prevent human contact; and (3) only if elimination and guarding are not possible may warnings be used alone (R. 1715-1718). 1. THOMAS BERRY ESTABLISHED THAT DEFENDANTS’ USE OF THE UNNECESSARY PROTRUDING NUT AND BOLT ON THE DRIVE SHAFT CONSTITUTED A DESIGN DEFECT, AND THAT SAFE AND ECONOMICAL DESIGN ALTERNATIVES WERE READILY AVAILABLE. Mr. Berry explained that rotating shafts pose a risk, which is greatly increased if they contain protrusions that can entangle hair or clothing (R. 1722- 1454318v1 44070.0001 31 1724). Protrusions, such as the nut and bolt used by CNH, make it far more likely that clothing will be entangled if it comes in contact with the rotating driveline (R. 1901; R. 1951). The use of a protrusion-free design “would prevent or lessen significantly the entanglement hazard,” he said (R. 1764). He opined that, on the Series 906 HD post hole digger, the entanglement hazard created by the protruding nut and bolt should have been eliminated by using a protrusion-free quick-attach slide collar (R. 1740-1743). Such a slide collar was introduced into evidence as Plaintiffs’ Exhibit 154. Mr. Berry stated that in 1995 the retail price for such a collar was approximately $5.00 (R. 1759-1760). The wholesale price to a manufacturer would have been considerably less (R. 1759- 1760). Mr. Berry further stated that there were additional feasible design alternatives that would eliminate the entanglement hazard created by the protruding nut and bolt, including the use of a recessed nut and bolt or a roll pin to secure the U-joint to the gearbox input shaft (R. 1760-1769). Plaintiffs introduced an exemplar roll pin into evidence as Plaintiffs’ Exhibit 157 (R. 1764). Mr. Berry stated that it would not have protruded beyond the U-joint collar’s exterior surface, and would have cost only 30 to 40 cents in 1995 (R. 1765-1769). Instead, the driveline U-joint was attached with a 2-1/2-inch bolt and nut that protruded from the surface of the U-joint’s cylindrical collar (R. 1741; R. 1747; R. 1454318v1 44070.0001 32 1769-1770). The use of the protruding nut and bolt violated the first principle of safety design engineering because it presented a hazard that could cause serious injury or death and could have been eliminated without affecting the function of the machine or appreciably increasing its cost (R. 1769-1770). Mr. Berry also testified that the claimed concerns that the driveline might be reversed if a slide collar was used on each end could be easily eliminated by using a 20-tooth spline on one end and a 6-tooth spline on the other end (R. 1848-1850). 2. THOMAS BERRY ESTABLISHED THAT DEFENDANTS’ USE OF THE GENERIC PLASTIC GUARD CONSTITUTED A DESIGN DEFECT, AND THAT SAFE AND ECONOMICAL DESIGN ALTERNATIVES WERE READILY AVAILABLE. Thomas Berry established that the plastic guard used on the Series 906 HD post hole digger was inadequate, and constituted a design defect (R. 1800-1802). Mr. Berry testified that, under accepted design principles, guards should remain functional throughout the intended life of a machine (R. 1791). To that end, he testified, guards must be able to withstand the forces and impacts to which they would be subjected through foreseeable use and misuse (R. 1791-1792). Mr. Berry also stated that it is well recognized among agricultural design professionals that if a guard fails, the user commonly won’t replace it if the machine is still usable (R. 1792; R. 1923). For that reason, he stated, the manufacturer must incorporate a guard that lasts the life of the machine (R. 1792; R. 1802; R. 1923-1924). 1454318v1 44070.0001 33 On the Series 906 post hole digger, Mr. Berry stated, it was foreseeable the plastic guard would contact the ground during normal field use (R. 1796-1799). The auger will at times screw itself all the way into the ground, he stated (R. 1796- 1799; R. 1945-1946). In addition, the shield can hit the mound of dirt that is normally created in the digging process (R. 1799). When that occurs, Mr. Berry said, the plastic shield deforms and gets pushed into the rotating driveline, damaging the shield (R. 1799-1800). He opined that the use of the plastic shield (an exemplar of which was admitted into evidence as Plaintiffs’ Exhibit 89) on the Series 906 post hole digger created a design defect because the shield would become damaged through use, and not last the life of the machine (R. 1800-1802). Mr. Berry testified that there were alternative guard designs that were both technically feasible and economically practical, and that would have provided the requisite protection throughout the useful life of the machine (R. 1802-1840; R. 1930-1933; 1943-1945). Two metal gearbox shields were introduced into evidence, one of which was red (Plaintiffs’ Exhibit 161) and the other of which was black (Plaintiffs’ Exhibit 163). (R. 1807-1810; R. 1832-1838.) Mr. Berry testified that he had previously designed two similar metal post hole digger shields (R. 1802-1807; R. 1824-1830; R. 1943). As described by Mr. Berry and established by the physical exhibits themselves, the metal shields were made of a heavy gauge steel (R. 1802- 1803; R. 1805; R. 1809-1810). The red guard would not have bent if it contacted 1454318v1 44070.0001 34 the ground, Mr. Berry said, and was so strong that it would have prevented the auger digging any deeper once the guard touched the ground (R. 1944-1945). Mr. Berry also testified that, like the plastic shields, the metal shields could be made to provide 360-degree protection by incorporating a bottom side (R. 1824- 1830; R. 1834-1835). As described by Mr. Berry and depicted in the photographs of a prototype he designed, the bottom could be fabricated with a half-moon cut- out to permit the driveshaft on a post hole digger to articulate during the hole- drilling process (R. 1813-1815; R. 1827; R. 1834-1835; R. 1914-1915; R. 8773). Such a metal guard would have cost approximately $10 to $20 more than the plastic guard (R. 1810), and the technology was readily available in the mid-1990’s (R. 1807; R. 1830-1833). Mr. Berry stated that the red metal guard (Plaintiffs’ Exhibit 161) was of an “integral design,” similar to one he had designed (R. 1803-1811). “An integral guard,” he explained, “is a type of guard that’s integral to the design of the machine. It has to be in place for the machine to function properly.” (R. 1717.) The guard is used on post hole diggers that are on the market (R. 1908; R. 1943-1944). Mr. Berry explained that the heavy duty lugs at the top of the red guard serve as attachment points for the post hole digger’s boom (R. 1803-1806). Therefore, if the guard were not in place, the post hole digger would be unusable (R. 1806-1809). Mr. Berry opined that, if such an integral guard had been 1454318v1 44070.0001 35 incorporated into the Series 906 HD post hole digger, the guard would necessarily have been in place on the day of Jessica Bowers’s accident, thereby preventing her accident (R. 1838-1839; R. 1851). He also opined that a sturdily constructed non- integral guard, similar to Plaintiffs’ Exhibit 163, would not be damaged during use and instead would have remained in place throughout the life of the product (R. 1839-1840). 9. JESSICA BOWERS ESTABLISHED THAT EACH OF THE POST HOLE DIGGER’S TWO SEPARATE DESIGN DEFECTS CONSTITUTED A SUBSTANTIAL FACTOR IN CAUSING HER INJURIES. Defendants concede that Jessica Bowers would not have been entangled on the driveline of the post hole digger if the original shield that covered the gearbox connection had not disintegrated (Brief for Defendants-Appellants, p. 39). Thus, it is undisputed that the design defect involving the incorporation of a plastic shield that was unsuitable for use on the Series 906 post hole digger constituted a substantial factor in causing Jessica’s injuries. In addition, Jessica Bowers interposed overwhelming evidence – which the jury credited – establishing that her clothing was entangled on the unnecessary protruding nut and bolt, which constituted a distinct design defect and a distinct substantial factor in causing her injuries. Gary Hoover testified that, upon beginning to drill what turned out to be the final hole, he looked backward and saw Jessica wrapped around the drive shaft, 1454318v1 44070.0001 36 with her arm lying on the ground (R. 2755-2756). He immediately disengaged the PTO and went to Jessica’s aid, upon which he observed that Jessica’s coat was wrapped around the drive shaft, over the protruding nut and bolt on the U-joint collar (R. 2756). Mr. Hoover had to cut the coat with a razor to get Jessica off the driveline (R. 2755-2756). Photographs taken by the Niagara County Sheriff’s Department depicting the tractor and post hole digger immediately after Jessica was taken from the scene are reproduced at R. 8307-8308 and R. 8956-8967. Peter Smith retrieved his tractor and post hole digger that night (R. 1313- 1316). When he examined them at his farm immediately afterward Mr. Smith saw a portion of Jessica’s coat wrapped around the U-joint that was attached to the gear box (R. 1316-1318). He unwrapped it (R. 1317-1318). Upon doing so, he saw that the corner of one of its side pockets had caught on the protruding nut and bolt that secured the U-joint collar to the gearbox input shaft (R. 1317-1318). The bolt and attached nut are depicted in the bottom photograph reproduced at R. 8974. Thomas Berry testified that he had education, experience, and training in the investigation of entanglement hazards (R. 1776). Over defendants’ objection, he stated that EMT’s and others involved in accident response and investigation employ a protocol whereby they note the point at which an entangled item caught (R. 1777-1779). 1454318v1 44070.0001 37 With the jury out of the courtroom, the trial court questioned why plaintiffs needed to pursue that line of questioning given Peter Smith’s testimony that he observed the pocket of Jessica’s coat caught on the protruding nut and bolt when he unwrapped it (R. 1779-1781). In response, plaintiffs’ counsel stated that – because defendants’ expert was going to state that the coat did not get caught on the bolt, or that it would be speculative to so conclude – plaintiffs should be permitted to pursue the line of questioning (R. 1781). Defense counsel confirmed that she intended to call an expert who would state that it would be speculative to conclude Jessica Bowers’s coat caught on the protruding bolt (R. 1781-1783). Defense counsel further argued that a jury could not find that Jessica’s coat had gotten caught in that fashion based solely on Mr. Smith’s observation, and that expert testimony was required (R. 1784-1785). The court then ruled that plaintiffs could pursue their line of questioning with Thomas Berry (R. 1784-1786). Mr. Berry testified that, to identify the cause of an entanglement on a rotating shaft, emergency personnel employ a procedure whereby they “slowly unwrap [the entangled object] until the point is reached where there's a solid connection onto the shaft” (R. 1786). Plaintiffs’ counsel then asked Mr. Berry if, based upon Peter Smith’s description of the position of Jessica Bowers’s coat pocket on the protruding nut and bolt, he had an opinion to a reasonable degree of certainty in the field of 1454318v1 44070.0001 38 mechanical engineering as to whether that connection was a substantial factor in causing injury to Jessica Bowers (R. 1787). Mr. Berry said yes, in his opinion Jessica’s coat had gotten caught on the protruding nut and bolt (R. 1787). During cross examination by CNH’s counsel, Mr. Berry also testified – without objection – that he knew from his own testing that clothing is very unlikely to get entangled if it comes in contact with a smooth rotating surface, but will catch almost immediately on a protrusion (R. 1884). Alfred Bowles, M.D., who testified on defendants’ behalf, acknowledged that Peter Smith’s observation as to the coat’s contact point was an important factor in determining how the accident occurred (R. 2995). He opined, though, that because there are folds, irregularities, and varying degrees of tightness, one could not conclude that the piece of fabric at the end of the winding “had to have been the origination or the origin point” (R. 2972). He expressly conceded, though, that he “didn’t come in here to tell the jury what to believe. They are to think about this and believe what they wish to believe” (R. 2999). 10. DEFENDANTS’ ENGINEERING EXPERT FAILED TO REFUTE THE EVIDENCE ESTABLISHING THAT THE POST HOLE DIGGER CONTAINED TWO SEPARATE DESIGN DEFECTS, EACH OF WHICH CONSTITUTED A SUBSTANTIAL FACTOR IN CAUSING JESSICA BOWERS’S INJURIES. Defendants called as an expert witness Ralph Shirley, an agricultural engineer formerly employed by John Deere who now works as a defense 1454318v1 44070.0001 39 consultant in products liability litigation (R. 3143-3148; R. 3319-3324). Mr. Shirley agreed that product designers must employ the safety design principles and hierarchy described by Thomas Berry, David Horrman, Kermit Hillman, and Demetrios Velikaris (R. 3276-3277; R. 3337-3338). Mr. Shirley never disputed, and could not dispute, that the entanglement hazard created by the unnecessary protruding nut and bolt could have been eliminated by using protrusion-free slide collars or recessed nuts and bolts without impairing the function of the post hole digger or substantially increasing its cost. He instead made a feeble attempt to justify the design defect by claiming that the use of the unnecessary protruding nut and bolt on the driveline/gearbox connection was acceptable from a design viewpoint, notwithstanding the consequent entanglement hazard, because a shield was in place when the machine was made and sold (3270-3274). Thus, he ignored the fundamental safety design principle that he himself conceded to be authoritative, thereby implicitly admitting the existence of the design defect. Although he attempted to attack the use of a roll pin as one of the alternative to a protruding nut and bolt by claiming they can slide out when the components are rotated (R. 3274-3275), Mr. Shirley admitted on cross-examination that the Series 906 HD post hole digger had incorporated roll pins on the driveline in 1989 1454318v1 44070.0001 40 (R. 3346-3350). Neither he nor any other witness testified that the roll pins had failed to stay in position when so used. On cross-examination, Mr. Shirley also admitted that, like defendants’ engineers, he was aware the gearbox shield on the Series 906 post hole digger would contact the ground during use (R. 3397-3398). He also admitted and agreed that the Series 906 gearbox shield should have lasted for the life of the machine if it was “used for its intended use” (R. 3394). Nevertheless, in an effort to conform to defendants’ theory of the case, and contrary to established products liability law, Mr. Shirley asserted that the shield did not have to withstand unintended but foreseeable uses (R. 3394). Mr. Shirley admitted, though, that John Deere – for whom he had worked – had manufactured a post hole digger using a metal guard similar to the ones that plaintiff introduced into evidence (R. 3389-3391). A photograph depicting the John Deere post hole digger, with metal guard, was admitted into evidence (R. 8951). Mr. Shirley nevertheless opined that the plastic shield was durable and non- defective (R. 3224-3225), and that steel shields could not have been used on the Series 906 post hole digger (R. 3262-3269). He asserted that metal shields are not effective because, if made of thin-gauge steel, they can permanently deform if bent, or, if made of heavy-gauge steel, they can be cut off with an acetylene torch 1454318v1 44070.0001 41 (R. 3263-3264; R. 3266-3267; R. 3396-3397).1 In addition, he asserted, a metal shield could cause injury if you “bump[ed] your head” on it (R. 3412). Elucidating that analysis on cross-examination, Mr. Shirley laughably claimed that if he ran into the post hole digger’s gearbox shield in the dark he would rather it was made of flexible plastic rather than heavy-gauge steel (R. 3423). The jury rightly rejected Mr. Shirley’s opinions. C. THE APPELLATE DIVISION’S DECISION. In its Memorandum and Order unanimously affirming Supreme Court’s Judgment in its entirety, the Fourth Department held that, assuming CNH and Niagara Frontier sustained their threshold evidentiary burden under CPLR 3212(b), plaintiffs raised triable issues of fact compelling the denial of their motion for summary judgment (R. 12a). Additionally, the Appellate Division held, plaintiffs established “a prima facie case of defective design of the digger” at trial (R. 12a-13a). “Specifically,” the court wrote, “the proof was sufficient to establish that, inter alia, a protruding bolt that attached the driveline to the gearbox was an entanglement hazard; the plastic gearbox shield used to guard against the protruding bolt could be damaged by normal use or foreseeable misuse of the digger; and there were design 1 Of course, the alternative steel guards introduced into evidence were not thin, and the testimony regarding the use of a cutting torch to remove heavy-duty guards was irrelevant and nonsensical. 1454318v1 44070.0001 42 alternatives that would have reduced or eliminated the hazards in the subject product and would have resulted in only a nominal increase in cost” (R. 13a). The court further held that plaintiffs “presented sufficient evidence that Smith’s removal of the damaged gearbox shield did not constitute a substantial modification” of the post hole digger (R. 13a). The court held that the verdict was not against the weight of the evidence (R. 13a). It also held that the trial evidence was sufficient to establish that the design defects constituted a substantial factor in causing Jessica Bowers’s injuries, and that an alternative design would have prevented the accident (R. 13a). 1454318v1 44070.0001 43 THE APPLICABLE STANDARD OF REVIEW In determining whether a litigant is entitled to summary judgment, the Court of Appeals must – like the trial court and Appellate Division – “[v]iew[] the facts in the light most favorable to” the non-moving party. Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 340 (2011). Accord Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 (2012). Summary judgment is appropriate only if the movant “tender[s] sufficient evidence to demonstrate the absence of any material issues of fact” and the opposing party “fails to establish the existence of material issues of fact which require a trial of the action.” Id. (internal quotation marks and citation omitted). A similar standard applies upon review of motions to dismiss a plaintiff’s complaint at the close of proof, pursuant to CPLR 4401, post verdict, pursuant to CPLR 4404(a), and on appeal. As the Court held in Szczerbiak v. Pilat, 90 N.Y.2d 553 (1997): In considering [a] motion for judgment as a matter of law [pursuant to CPLR 4401], the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant. 90 N.Y.2d at 556 (citation omitted). The motion can be granted, the Court further held, only if “there is no rational process by which the fact trier could base a finding in favor of the nonmoving party.” Id. (citation omitted). See also Dinardo 1454318v1 44070.0001 44 v. City of New York, 13 N.Y.3d 872, 873-875 (2009) (applying that standard upon review of orders denying defendant’s motions under CPLR 4401 and 4404[a]); Campbell v. City of Elmira, 84 N.Y.2d 505, 511 (1994) (in reviewing a jury verdict, the Court “respects the jury’s deliberations in weighing and resolving disputed fact and credibility questions”). ARGUMENT POINT I PLAINTIFF DEMONSTRATED THAT THE SERIES 906 HD POST HOLE DIGGER DESIGN WAS NOT REASONABLY SAFE BECAUSE IT INCORPORATED TWO SEPARATE DESIGN DEFECTS Under Voss v. Black & Decker Mfg. Co., a product is defectively designed if, as a result of an intentionally incorporated feature, it is “not reasonably safe.” 59 N.Y.2d at 108. A product is not reasonably safe, the Voss Court held, if “a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner.” Id. (citation omitted). Accord Adams v. Genie Indus., Inc., 14 N.Y.3d 535, 542 (2010). The question of whether a product is not reasonably safe is an inherently factual one. Thus, the Court in Voss held that, “[i]t will be for the jury to decide whether a product was not reasonably safe in light of all the evidence presented by both the plaintiff and defendant.” 59 N.Y.2d at 108. More recently, in Adams v. 1454318v1 44070.0001 45 Genie Indus., Inc., the Court, in sustaining a judgment entered in plaintiff’s favor in a design-defect case, held that “the weight to be given the evidence for each side was up to the jury.” 14 N.Y.3d at 544. In considering whether a product is not reasonably safe a jury is to “balanc[e] the risks inherent in the product, as designed, against its utility and cost . . . .” Voss, 59 N.Y.2d at 109 (citations omitted). In performing that risk/benefit analysis, the jury may consider various factors, including: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design.” Voss, 59 N.Y.2d at 109 (citations omitted). The jury below found that the post hole digger that injured Jessica Bowers was not reasonably safe in that it was defectively designed (R. 8190, ¶ 1). In considering whether that finding was supported by legally sufficient proof, this Court must afford Ms. Bowers “every inference that may properly be drawn from 1454318v1 44070.0001 46 the evidence presented and consider[] the evidence in a light most favorable to her.” Dinardo v. City of New York, 13 N.Y.3d at 874 (citation omitted). See also Campbell v. City of Elmira, 84 N.Y.2d at 511 (in reviewing a jury verdict, the Court “respects the jury’s deliberations in weighing and resolving disputed fact and credibility questions”). Here, the verdict was squarely supported by the trial proof demonstrating that the Series 906 HD post hole digger incorporated two design defects that were substantial factors contributing to the causation of Jessica Bowers’s injuries, i.e., the use of an unnecessary protruding nut and bolt that created an unnecessary entanglement hazard at the U-joint/gearbox connection and the use of a flimsy and inappropriate plastic shield to cover that hazard. A. PLAINTIFF ESTABLISHED THAT THE USE OF THE PROTRUDING NUT AND BOLT WAS UNNECESSARY AND CONSTITUTED A DESIGN DEFECT. Thomas Berry, Jessica Bowers’s agricultural engineering expert, testified that the use of a protruding nut and bolt on the gearbox input shaft connection created an unnecessary entanglement hazard constituting a design defect (R. 1722- 1724; R. 1741; R. 1747; R. 1769-1770). He also testified that the entanglement hazard created by that defect could have been easily and economically eliminated through the use a protrusion-free design (R. 1740-1743; R. 1760-1769). Such designs, Mr. Berry said, could incorporate a quick-attach slide collar, as was used 1454318v1 44070.0001 47 in the original design (R. 1740-1743), a recessed nut and bolt (R. 1760-1764), or a recessed roll pin (R. 1760; R. 1764-1765). Plaintiff introduced a roll pin and a slide collar into evidence (Plaintiffs’ Exhibits 154 and 157) and established that the pre- 1995 models had successfully employed both (R. 3346-3350). She also introduced proof that in the mid 1990’s Walterscheid – a maker of drivelines – could have supplied a U-joint collar with recessed nut and bolt holes (R. 1679-1680). Thus, Jessica Bowers introduced substantial evidence demonstrating that the Series 906 HD post hole digger design was not reasonably safe because it unnecessarily incorporated a patent entanglement hazard at the driveline/gearbox connection, thereby violating the first principle of safety design engineering for products. B. DEFENDANTS’ EXPERT MADE NO EFFORT TO REBUT PLAINTIFF’S EVIDENCE THAT THE REDESIGN OF THE DRIVELINE CREATED AN UNNECESSARY ENTANGLEMENT HAZARD. The jury, in determining “the weight to be given the evidence for each side,” Adams, 14 N.Y.3d at 544, implicitly rejected defendants’ rationale for incorporating a protruding nut and bolt on the driveline connection. The jury’s determination is logical, and legally unimpeachable, given the weakness of CNH and Niagara Frontier’s defense. At trial, defendants established no valid rationale for using a protruding nut and bolt on the U-joint/gearbox connection rather than a protrusion-free slide 1454318v1 44070.0001 48 collar, roll pin, or recessed bolt. Defendants’ witnesses testified that when the post hole digger’s driveline design was changed in 1995 the manufacturer began using a protruding nut and bolt at the connection instead of the protrusion-free attachment that it had employed from 1990 through 1994 (R. 800-801; R. 819-820; R. 824- 825; R. 922; R. 935; R. 938). SMC purportedly switched to the protruding nut and bolt because it had begun using a slide collar/spline connection on the tractor end of the driveline, and wanted to employ a distinct type of connection at the gearbox to avoid the possibility that users would inadvertently reverse the driveline if it was ever disconnected at both ends (R. 819; R. 918-919; R. 943; R. 946). Defendants did not refute the extensive testimony – from both plaintiff’s expert and defendants’ witnesses – establishing that the protrusion created an unnecessary and unacceptable entanglement hazard that could have been eliminated at little or no additional cost without adversely affecting the machine’s function and at the same time insuring that the driveline could not be installed backwards (R. 787; R. 801-802; R. 819-820; R. 904; R. 922; R. 938; R. 941-942; R. 963-964; R. 1677-1679; R. 1715-1718; R. 1722-1724; R. 1740-1743; R. 1759- 1770; R. 1848-1850). Instead, defendants’ engineering expert simply claimed in conclusory terms that the driveline that incorporated the design defect of an unnecessary protrusion was not unreasonably dangerous when shielded (R. 3273). He made no effort to square that unsupported assertion with his concession that, 1454318v1 44070.0001 49 under universally recognized design principles, hazards must be eliminated from a product whenever possible, rather than merely covered up (R. 3276-3277; R. 3337- 3339). Accordingly, as the Appellate Division properly held, the jury’s finding that the protruding nut and bolt constituted a design defect, and created an entanglement hazard, was supported by the evidence (R. 13a). The reasonableness of the jury’s finding is established not only by the trial proof, but also by the fact that defendants have made no effort on appeal to justify their use of the unnecessary protruding nut and bolt on the U-joint/gearbox connection in place of the protrusion-free connections that were readily available. Finally, there is no merit to defendants’ misleading assertion that Peter Smith replaced the bolt that secured the U-joint yoke to the gearbox input shaft with a substantially longer one, thereby creating an enhanced entanglement hazard that did not exist at the time of manufacture (Brief for Defendants-Appellants, p. 44, n. 10).2 Mr. Smith testified that he had replaced the original nut and bolt with materially identical ones prior to plaintiff’s accident (R. 1318-1320). The jury was free to credit that testimony and reject Gary Hoover’s recollection that the replacement bolt extended three inches beyond the U-joint’s circumference (R. 2762; R. 3586). Under Sage v. Fairchild-Swearingen Corp., 70 N.Y.2d 579 (1987), 2 This is but one example of defendants ignoring the standard of review by construing disputed facts in their favor instead of Jessica Bowers’s favor, as required. 1454318v1 44070.0001 50 Mr. Smith’s installation of a materially identical bolt and nut “did no more than perpetuate defendant’s bad design.” 70 N.Y.2d at 598. C. PLAINTIFF ESTABLISHED THAT THE USE OF THE GENERIC PLASTIC SHIELD CONSTITUTED A DESIGN DEFECT BECAUSE IT WAS INAPPROPRIATE GIVEN THE POST HOLE DIGGER’S INTENDED AND REASONABLY FORESEEABLE USE. Jessica Bowers demonstrated that defendants’ decision to use the generic plastic shield on the Series 906 HD post hole digger constituted a design defect. Thomas Berry testified that, under accepted design principles, guards must remain functional throughout the intended life of a machine (R. 1791-1792; R. 1802; R. 1923-1924). They must be able to withstand the forces and impacts to which they would be subjected through foreseeable use and misuse, he said (which is consistent with established products liability law), particularly because it is well known among agricultural design professionals that owners commonly won’t replace a broken or missing guard if the machine can still be operated without it (R. 1791-1792). CNH engineer Steven Schlotterbeck agreed that guards should last the life of the machine they are on, provided they are not “abused” (R. 1116). On the Series 906 post hole digger, Mr. Berry stated, it was foreseeable the plastic guard would contact the ground during normal field use, deforming the plastic shield so that it was pushed into the rotating driveline, thereby damaging 1454318v1 44070.0001 51 the shield (R. 1796-1800; R. 1945-1946).3 Defense witnesses Kermit Hillman, Steven Schlotterbeck, and Ralph Shirley conceded that it was known the guard would at times hit the ground (R. 843; R. 845; R. 1116-1117; R. 3397-3398). Thomas Berry opined that the use of the plastic shield constituted a defective design because the shield would become damaged through intended or foreseeable use, and not last the life of the machine (R. 1800-1802). While Mr. Berry was on the stand, plaintiff introduced two heavy-gauge steel gearbox shields into evidence, one of which was red (Plaintiffs’ Exhibit 161) and the other of which was black (Plaintiffs’ Exhibit 163). Mr. Berry testified that such guards were available and economically practical in the mid-1990’s (R. 1807; R. 1810; R. 1832-1833). Addressing the red guard (Plaintiff’s Exhibit 161), Mr. Berry explained that it was an “integral design,” which was particularly desirable because if it was ever removed the machine could not be operated (R. 1717). The red guard was similar to one he had designed, Mr. Berry said, and was used on post hole diggers that were on the market (R. 1803-1811; R. 1908; R. 1943-1944) In rebutting defendants’ claim that the cheap plastic shield had a unique design because it afforded 360-degree coverage, Mr. Berry testified that the metal guards could also be made with 360-degree protection by incorporating a bottom 3 This undermines defendants’ claim that the flexibility of a plastic shield constitutes a positive design feature. In fact, the shield’s repeated deformation caused it to be destroyed from the inside when it came in contact with the rotating driveline, as defendants knew it would. 1454318v1 44070.0001 52 side (R. 1824-1830). As described by Mr. Berry and depicted in the photographs of a prototype he designed, the bottom could easily be fabricated with a half-moon cut-out to permit the driveshaft to articulate during the hole-drilling process (R. 1827; R. 1914-1915; R. 8773). Defense expert Ralph Shirley, a former agricultural engineer for John Deere (R. 3148), acknowledged that that company had manufactured a post hole digger with a metal guard very similar to the ones that plaintiff introduced into evidence (R. 3389-3391). A photograph depicting the John Deere post hole digger, with metal guard, was admitted into evidence (R. 8951). Thus, plaintiff demonstrated that the Series 906 post hole digger was not reasonably safe because it incorporated an insubstantial plastic shield over the driveline/gearbox connection, rather than a heavy-duty steel guard. D. DEFENDANTS’ RATIONALE FOR USING THE PLASTIC SHIELD WAS UNPERSUASIVE, AND THE JURY REASONABLY REJECTED IT. The jury, in weighing the evidence, Adams, 14 N.Y.3d at 544, reasonably credited plaintiff’s evidence and rejected defendants’ contention that the plastic shield was appropriate for use on the Series 906 post hole digger. SMC engineer Kermit Hillman testified that the prototype post hole digger that CNH provided to SMC had a metal guard at the driveline/gearbox connection (R. 770-771). Mr. Hillman testified that SMC nevertheless decided to use a plastic shield because 1454318v1 44070.0001 53 CNH’s service department (not engineering department) advised that the auger could strike the shield if, while being transported on the highway at full speed, the tip of the auger hit the pavement, purportedly damaging the driveline (but not the guard) (R. 773-779). That was the only potential problem with metal shields reported by CNH, Mr. Hillman said (R. 776-777). CNH did not advise SMC’s personnel that metal guards could be damaged when post hole diggers were used for their intended purpose of boring holes. Mr. Hillman admitted that he had never seen a metal shield that had been damaged in transit (R. 777). He also admitted that SMC never received any documentation regarding metal shields that had been damaged in that fashion, did not know the frequency with which such incidents had allegedly occurred, and never conducted any tests to see if the purported problem actually existed (R. 777- 778). Mr. Hillman also admitted that, although SMC was aware the driveline/gearbox shield could hit the ground during the drilling process, the company did not: (1) study how such shields hold up in the field; (2) conduct tests to determine how many times the shield and driveline could come in contact before the shield would be damaged; (3) perform any specific durability testing of the 1454318v1 44070.0001 54 plastic guard; or (4) ask Walterscheid, the guard’s manufacturer, what tests it had performed (R. 792-793; R. 841-847). In fact, the evidence established, Walterscheid itself conducted only two tests, neither of which involved the use of the shield under circumstances where it would foreseeably come in contact with the ground or a rotating driveline. Instead, the proof established, the company conducted a “cold impact test,” in which the shield was frozen and hit one time with a weight, and a “side-load test,” in which it was pushed one time with 270 pounds of force (R. 1681-1684). Neither of these tests would in any way establish the appropriateness of the shield on a post hole digger. No defense witness testified – or even suggested – that Mr. Smith’s regular use of his heavy duty post hole to dig numerous holes each year was in any way abnormal or outside the machine’s intended and foreseeable purpose. Nor could they have because digging holes is the very purpose of a post hole digger. While defendants repeatedly refer to Peter Smith’s use of the machine as abusive, the fact remains that he simply used it to dig holes. Furthermore, CNH engineer John Riffanacht admitted that the heavy duty models, such as the one owned by Peter Smith, are meant to be subjected to greater forces and stresses than light duty models (R. 1177). Mr. Riffanacht also admitted that he was aware the post hole digger’s auger “could just screw itself into the 1454318v1 44070.0001 55 ground,” thereby forcing the plastic guard onto the ground (R. 3107-3109). Nevertheless, he admitted, CNH conducted no tests to assess the guard’s durability in the event it did so (R. 3095). In fact, the only durability tests performed on the post hole digger (which were conducted by SMC [R. 1093] involved the auger and shear pin (R. 3093-3095). During the testing process, SMC dug only holes that were limited to a depth that avoided contact with the shield (R. 843-846). Thus, no one ever tested the shield for durability on a post hole digger as used in the field over the course of the machine’s anticipated useful life. CNH product evaluation specialist Stephen Schlotterbeck confirmed that, and further admitted that CNH did not even inquire whether SMC tested the plastic shield for durability (R. 1083; R. 1086; R. 1092-1097; R. 1113-1114; R. 1128). Mr. Riffanacht admitted, though, that the company should have examined the Series 906 post hole digger “to ensure that there were no obvious deficiencies in design, application or safety” (R. 1164). The safety review should have culminated in a written report, he said (R. 3050-3054). In light of CNH’s seven-year retention policy, any safety report that had been generated when the post hole digger was designed in 1990 would have still been on file when he became involved in the product line in the mid 1990’s (R. 2861; R. 3126; R. 3138). Mr. Riffanacht admitted that he had never seen a safety review report, though (R. 3138), and the jury could have reasonably found that CNH had not conducted a safety review. 1454318v1 44070.0001 56 There is no merit to defendants’ contention that, notwithstanding the absence of real-world testing, the purported absence of warranty claims relating to Walterscheid’s plastic shields constitutes “compelling evidence of [their] durability” because they are ostensibly used on “tens of thousands of farm implements in the United States to shield drivelines and gearboxes.” Brief for Defendants-Appellants, p. 33. The factual premise underlying defendants’ argument was misstated by defendants and is outside the trial record. Defendants’ assertion as to the number of shields in use is derived from an affidavit by James L. Suhr, which was submitted in support of SMC’s motion for summary judgment (R. 4516, ¶ 6). Mr. Suhr – who did not testify at trial – was referring to flexible shields in general, not ones used on post hole digger gearboxes and not ones manufactured by Walterscheid (R. 4516, ¶ 6). Moreover, he did not assert that the “tens of thousands” that are purportedly in use are employed in situations where the shield will foreseeably hit the ground and/or the driveline, as was the case in this action. Thus, Mr. Suhr’s affidavit failed to establish as a matter of law that the incorporation of the plastic shield did not constitute a design defect in the Series 906 HD post hole digger, or that the machine was reasonably safe for its intended and foreseeable use. Moreover, Mr. Suhr’s affidavit is wholly irrelevant to the appellate review of the jury’s verdict, as he did not testify at trial and no other 1454318v1 44070.0001 57 witness reiterated his assertions as to the number of flexible shields that are purportedly in use. Nor is there merit to defendants’ argument that the ostensible absence of customer comments or warranty claims relating to the Walterscheid shields establishes their durability as a matter of law. Nolan House, who testified that no comments or warranty claims had been made (R. 3634), is a Walterscheid design engineer, not a customer service representative (R. 1675). Defendants presented no evidence that he was involved in handling complaints or warranty claims (R. 3620- 3628). Even if no such complaints or claims had been made, moreover, it would constitute nothing more than a factor the jury could consider in determining whether the shields were adequate when used on the Series 906 post hole diggers. See generally Orlick v. Granit Hotel & Country Club, 30 N.Y.2d 246, 250 (1972) (evidence of no prior accidents “would merely be a factor for consideration and not in any way be conclusive on the issue of the nature of the condition of” defendant’s property). CNH’s fundamental rationale for using a plastic shield that could not withstand repeated contact with the ground is contained in John Riffanacht’s testimony. Although he acknowledged that products are normally designed for foreseeable but unintended uses, Mr. Riffanacht stated that “he would design for 1454318v1 44070.0001 58 intended use under normal conditions,” and would “not necessarily” take into account unintended but foreseeable uses (R. 3099-3101). Here, there was substantial record proof that the plastic shield would strike the ground “under normal conditions.” Peter Smith, the post hole digger’s owner, SMC designer Kermit Hillman, CNH engineer Steven Schlotterbeck, plaintiff’s expert Thomas Berry, and defense expert Ralph Shirley all testified and admitted to that (R. 843; 845; R. 1263-1269; R. 1273; R. 1116-1117; R. 1796-1800; R. 3397-3398). Furthermore, the design philosophy expressed by Mr. Riffanacht is directly contrary to the law of New York, under which “a manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is use in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.” Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 385-386 (1976) (emphasis supplied). Accord Lugo v. LJN Toys, Ltd., 75 N.Y.2d 850, 852 (1990); Robinson v. Reed-Prentice Div. of Packaging Mach. Co., 49 N.Y.2d at 480. The jury charge in this action incorporated that statement of the law (R. 4065) and the jurors implicitly found that “the plastic gearbox shield used to guard against the protruding bolt could be damaged by normal use or foreseeable misuse 1454318v1 44070.0001 59 of the digger” (R. 13a). “[T]he proof,” the Appellate Division correctly held, “was sufficient to” support that finding (R. 13a). Assuming “that there was also evidence from which the jury could have reached the opposite conclusion,” as was the case in Adams v. Genie Indus., Inc., “the weight to be given the evidence for each side was up to the jury,” and it “cannot [be said] the verdict in plaintiff’s favor . . . is without merit.” 14 N.Y.3d at 535. E. PLAINTIFF SATISFIED HER EVIDENTIARY BURDEN UNDER VOSS v. BLACK & DECKER MFG. CO. BY DEMONSTRATING THE EXISTENCE OF FEASIBLE, SAFER ALTERNATIVE DESIGNS. Defendants contend that, irrespective of the post hole digger’s design defects, they are entitled to judgment as a matter of law because Jessica Bowers failed to establish that, had an alternative design been in place, she would not have been injured. See Brief for Defendants-Appellants, p. 43. Defendants’ argument is legally without merit, and constitutes an attempt to impose a new and different legal burden on Jessica Bowers that is not found in Voss v. Black & Decker Mfg. Co. Voss requires only that plaintiff establish that a safer design was feasible, that “the defectively designed product caused his injury[,] and that the defect was the proximate cause of the injury,” i.e., that “the defect was a substantial factor in causing plaintiff's injury.” 59 N.Y.2d at 109.4 4 Although the Court in Voss referred to “the proximate cause of the injury” (emphasis supplied), it is well established that injuries may have multiple proximate causes. Argentina v. 1454318v1 44070.0001 60 In any event, the evidence established that Jessica Bowers would not have been injured if defendants had employed the alternative designs identified by their expert. Mr. Berry opined that, if a heavy duty metal guard had been used on the Series 906 HD post hole digger, it would have held up and been in place on the day of Jessica Bowers’s accident, thereby preventing the incident from occurring (R. 1838-1840; R. 1851). He also testified that if the guard was of the integral style, the post hole digger would have been rendered unusable if the guard were removed (R. 1717; R. 1803-1811; R. 1838-1839; R. 1851). Moreover, defendants have conceded before this Court that “[i]t is undisputed that the accident would not have occurred and Ms. Bowers would not have been injured if the shield originally attached to the post hole digger . . . had been properly in place at the time of the accident.” Brief for Defendants-Appellants, p. 39. Thus, it is undisputed that, if the post hole digger had properly incorporated a shield that that held up throughout the machine’s useful life, Jessica Bowers would not have been injured. Independent of that, Jessica Bowers also established that the use of the unnecessary nut and bolt on the driveline, and resulting entanglement hazard, constituted a distinct design defect because it violated the fundamental design Emery World Wide Del. Corp., 93 N.Y.2d 554, 560 n. 2 (1999). The Voss Court implicitly recognized that principle, notwithstanding its use of the word “the,” as it further held that the manufacturer of a defective product will be liable if the defect was “a substantial factor” in causing the injury, i.e., regardless of whether other causes also existed. 59 N.Y.2d at 109. 1454318v1 44070.0001 61 safety principle requiring that all such hazards be eliminated if possible, rather than simply covered with a guard or shield (R. 787; R. 800-801; R. 819-820; R. 904; R. 922; R. 938; R. 941-942; R. 963-964; R. 1715-1718; R. 1722-1724; R. 1769-1770; R. 2838-2841). Jessica also established that it was entirely feasible to incorporate a protrusion-free connection in lieu of the protruding nut and bolt without a loss of utility or an appreciable increase in cost (R. 801; R. 1678-1680; R. 1740-1743; R. 1759-1770; R. 1848-1850). As demonstrated in Point II (B), moreover, Jessica Bowers established that the unnecessary protruding nut and bolt constituted a substantial factor in causing her injuries. In sum, there is no merit to defendants’ contention that Jessica Bowers failed to carry her burden of proof under Voss. As in Adams v. Genie Indus., Inc., “the weight to be given the evidence for each side was up to the jury,” 14 N.Y.3d at 544, and the jury resolved the issue of defendants’ liability in Jessica Bowers’s favor. POINT II THE DEFECTIVELY DESIGNED POST HOLE DIGGER WAS A SUBSTANTIAL FACTOR IN CAUSING JESSICA BOWERS’S INJURIES In Point II of their brief, CNH and Niagara Frontier contend that Jessica Bowers “failed to prove that any claimed defect was a substantial factor in causing” her accident. Brief for Defendants-Appellants, p. 37. Defendants advance 1454318v1 44070.0001 62 two arguments in support of that contention: (1) as a matter of law, Peter Smith’s “reckless acts constitute superseding causes of the accident”; and (2) “plaintiffs failed to establish that an allegedly defective driveline created the initial entanglement point.” Brief for Defendants-Appellants, pp. 38, 40. As demonstrated below, neither argument has merit. A. DEFENDANTS’ CLAIM THAT PETER SMITH’S CONDUCT WAS RECKLESS AND CONSTITUTED A SUPERSEDING CAUSE OF JESSICA BOWERS’S INJURIES IS BOTH UNPRESERVED AND WITHOUT MERIT. CNH and Niagara Frontier contend that Peter Smith’s act of removing the remnants of the destroyed guard was reckless, and constituted a superseding event that absolves them of any liability for Jessica Bowers’s injuries under Boltax v. Joy Day Camp, 67 N.Y.2d 717 (1986), in which the Court held: “When an intervening act also contributes to the plaintiff’s injuries, ‘liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence.’ ” 67 N.Y.2d at 619 (quoting Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 315 [1980]). Defendants further argue that “the Appellate Division erred in failing to consider Smith’s conduct as a superseding cause of the accident absolving Appellants from liability.” Brief for Defendants- Appellants, pp. 39-40. Defendants did not advance that argument in their pretrial motion for summary judgment (R. 4247-4267), their post-trial motion pursuant to CPLR 1454318v1 44070.0001 63 4404(a) (R. 7538-7562), or their Appellate Division brief.5 Defendants may therefore not raise the argument before this Court. See Shapiro v. City of New York, 32 N.Y.2d 96, 101-102 & n.5 (1973); Karger, Powers of the New York Court of Appeals § 17:1 (Rev. 3d ed.). Independent of that, defendants did not identify and preserve the issue in their motion for leave to appeal. The Court should therefore decline to consider the argument under Quain v. Buzzetta Const. Corp., 69 N.Y.2d 376 (1987), in which it held: Although a grant of leave to appeal to this court ordinarily brings every reviewable issue before the court we hold that under rule 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), if a party in its application for leave to appeal specifically limits the issues it seeks to have reviewed, it is bound by such limitation and may not raise additional issues on the appeal. 69 N.Y.2d at 379. In any event, defendants’ superseding-cause argument lacks merit as a matter of law. As the Court held in Derdiarian v. Felix Contr. Corp., “[b]ecause questions concerning what is foreseeable and what is normal may be the subject of 5 Defendants filed their Appellate Division briefs with the Court of Appeals pursuant to 22 NYCRR 500.22(c). Plaintiff asks the Court to take judicial notice of them. See Long v. State of New York, 7 N.Y.3d 269, 275 (2006) (judicial notice taken of claimant’s criminal record on appeal from order arising out of Court of Claims action); Prince, Richardson on Evidence § 2- 209 (Farrell, 11th ed.) (“a court may take judicial notice of a record in the same court either of the pending action or of another action”). 1454318v1 44070.0001 64 varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve.” 51 N.Y.2d at 315. In Derdiarian, the Court held that the defendant contractor’s liability for failing to properly barricade a worksite was not vitiated by the intervening negligent conduct of a passing motorist, who lost control of his vehicle as a result of a medical emergency and crashed into the worksite. “A prime hazard associated with [the contractor’s dereliction] is the possibility that a driver will negligently enter the work site and cause injury to a worker,” said the Court. 51 N.Y.2d at 316. “That the driver was negligent, or even reckless, does not insulate [defendant] from liability,” the Court added. Id. Likewise, a prime hazard associated with inadequately guarded drivelines is the possibility that they will entangle persons positioned nearby. The jury here reasonably found that: (1) the plastic driveline shields were defective because the risk presented by their potential failure outweighed their alleged benefits, and (2) it was reasonably foreseeable such shields would not be replaced if they did fail. Therefore, although Peter Smith’s culpable conduct constituted a proximate cause of Jessica Bowers’s injuries, prompting the jury to apportion 30% of the fault to him, it did not constitute a superseding, intervening cause that severed the causal connection between the defective design and Jessica Bowers’s injuries. B. JESSICA BOWERS PROVED THAT EACH OF THE TWO DESIGN DEFECTS ON THE POST HOLE DIGGER 1454318v1 44070.0001 65 CONSTITUTED A DISTINCT SUBSTANTIAL FACTOR IN CAUSING HER INJURIES. Despite eye witness testimony tracing the entanglement of plaintiff’s jacket to the protruding nut and bolt, contemporaneous photographs showing the jacket wrapped around the bolted U-joint, and the simple logic that a protruding bolt attached to a rotating shaft is an entanglement hazard, defendants argue that there was inadequate proof of causation. For that reason, defendants further contend, plaintiff failed “to establish that a defect in the post hole digger proximately caused the accident.” Brief for Defendants-Appellants, p. 40. In so arguing, defendants disregard the critical fact that, had the post hole digger incorporated an adequate guard that held up throughout the useful life of the machine, Jessica Bowers would not have gotten entangled on the driveline. Defendants themselves concede “[i]t is undisputed that the accident would not have occurred and Ms. Bowers would not have been injured if the shield originally attached to the post hole digger . . . had been properly in place at the time of the accident.” Brief for Defendants-Appellants, p. 39. Therefore, plaintiff indisputably established that – irrespective of the role played by the protruding nut and bolt – a defect in the post hole digger (i.e., the inadequate shield) did proximately cause her injuries. Furthermore, when viewed in the light most favorable to plaintiff, as it must be, the evidence also establishes that Jessica Bowers’s clothing was entangled by 1454318v1 44070.0001 66 the protruding nut and bolt, which constituted a separate design defect distinct from the inadequate guard and a distinct proximate cause of her injuries. Peter Smith retrieved his tractor and post hole digger on the night of Jessica’s accident (R. 1313-1316; R. 1350-1351). They looked the same as they do in the Sheriff’s Department’s photographs, which were taken immediately after the accident, he testified (R. 1314-1316; R. 8307-8308). He observed that a portion of Jessica Bowers’s coat was wrapped around the U-joint that was attached to the gear box (R. 1316-1317). He unwrapped it, and “was paying attention” as he did so (R. 1317). He saw that the corner of one of the coat pockets had caught on the protruding bolt that secured the U-joint collar to the gearbox input shaft (R. 1317). Upon unwinding the coat, he observed that it “[l]ooked like the corner of her pocket” “first came into contact with the rotating drive shaft” (R. 1352). Thus, Mr. Smith directly observed that Jessica’s coat pocket caught on the protruding nut and bolt, pulling around the rotating driveline. Given the speed at which Jessica was pulled into the machine, the evidence as to how she became entangled could hardly be stronger or more compelling. The jury rationally found that Jessica’s injuries were proximately caused by the two defects identified by her expert, i.e., the protruding bolt and nut and the inadequate guard. Given Peter Smith’s testimony, the jury could have readily agreed with plaintiff’s argument that she had established by direct evidence that she was 1454318v1 44070.0001 67 injured because her coat caught on the protruding nut and bolt (Plaintiff’s Summation, R. 3992). Alternatively, the jury could have found that the evidence, although circumstantial in whole or in part, established that Jessica’s coat had caught on the protruding nut and bolt. As stated in N.Y. PJI 1:70 and charged to the jury in this case (R. 4057), facts may be proven by direct evidence, circumstantial evidence, or a combination of both, and a jury may give equal weight to both or greater weight to one or the other. In Schneider v. Kings Highway Hosp. Center, Inc., 67 N.Y.2d 743 (1986), the Court held: “We have on numerous occasions upheld or reinstated a jury’s verdict where the logic of common experience itself, as applied to the circumstances shown by the evidence, led to the conclusion that defendant’s negligence was the cause of plaintiff’s injury.” 67 N.Y.2d at 745. A plaintiff, the Court further held, may “establish a prima facie case of negligence based wholly on circumstantial evidence” if she “shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.” Schneider, 67 N.Y.2d at 744. Accord Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7 (1938); Markel v. Spencer, 5 A.D.2d 400, 407-408 (4th Dep’t 1958), aff’d, 5 N.Y.2d 958 (1959). 1454318v1 44070.0001 68 Furthermore, a plaintiff need not positively exclude every possible cause of the accident. Swensson v. New York, Albany Despatch Co., Inc., 309 N.Y. 497, 502 (1956); Grazier v. Snap-On Corp., 279 A.D.2d 448, 449 (2d Dep’t 2001). Rather, “the proof need only render the other possible causes so remote or technical that the verdict is based on logical inferences drawn from the evidence.” Grazier, 279 A.D.2d at 449. Moreover, in reviewing a verdict in plaintiff’s favor, a court must view the evidence – both circumstantial and direct – “in the light most favorable to plaintiff.” Bernstein v. City of New York, 69 N.Y.2d 1020, 1022 (1987). The court applied these principles in Seelinger v. Town of Middletown, 79 A.D.3d 1227 (3d Dep’t 2010), in which it held that a plaintiff who fell near a broken concrete abutment could prevail at trial even though his accident was unwitnessed and he did not know what caused him to fall. 79 A.D.3d at 1229- 1230. Noting that “[p]hotographs of the concrete abutment depict a broken and deteriorated condition where plaintiff would have been standing,” the court held that “[f]rom this evidence, a jury could logically infer that plaintiff fell because of the broken condition of the concrete abutment . . . .” Id., at 1230. See also Trzaska v. Allied Frozen Storage, Inc., 77 A.D.3d 1291, 1293 (4th Dep’t 2010) (even though plaintiff could not identify the specific cause of her fall, a jury could conclude that a nearby hazardous condition created by the defendant “caused or contributed to plaintiff’s accident”). 1454318v1 44070.0001 69 Here, the evidence is far stronger than that in Seelinger and Trzaska. Gary Hoover testified that he observed that Jessica’s coat was caught where the U-joint meets the gearbox input shaft (R. 2756). Peter Smith observed that Jessica’s coat had been caught directly on the bolt (R. 1317-1318). Given that testimony, the photographs of the protruding note and bolt (R. 8974 [bottom]; R. 8975 [top]; and R. 8978 [top]), the Sheriff’s Department photographs of the post hole digger immediately after the accident (R. 8958-8967), and the expert testimony of Thomas Berry as to the known propensity of protrusions to catch clothing (R. 1722-1724), a jury could “logically infer” that Jessica Bowers was injured because her coat was caught on the unguarded protruding nut and bolt. Although defendants’ expert, Alfred Bowles, M.D., testified that it would be speculative to so conclude, the jury was free to reject his opinion upon considering the totality of the trial evidence and applying its own experience, logic, and common sense. See N.Y. PJI 1:90 (jury may reject an expert's opinion if it finds the facts to be different from those which form the basis for the opinion, or if, upon considering all the evidence, it disagrees with the opinion). No one could be faulted for discrediting Dr. Bowles’s testimony. The doctor acknowledged that Peter Smith’s observation as to the coat’s contact point was an important factor in determining how the accident occurred (R. 2995), but posited that because there are folds, irregularities, and varying degrees of tightness, one 1454318v1 44070.0001 70 could not conclude that the piece of fabric at the end of the winding “had to have been the origination or the origin point” (R. 2972). He expressly conceded, though, that he “didn’t come in here to tell the jury what to believe. They are to think about this and believe what they wish to believe” (R. 2999). As Dr. Bowles properly acknowledged, the issue of proximate cause was for the jury. See Derdiarian v. Felix Contr. Corp., 51 N.Y.2d at 316 (“Given the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established” [citations omitted]). Upon considering the totality of the proof and applying their own common sense, the jurors rationally concluded that Jessica Bowers’s coat did in fact catch on the unnecessary protruding nut and bolt. Accordingly, there is no merit to defendants’ argument that, as a matter of law, plaintiff failed to establish that design defects in the post hole digger caused her accident and consequent injuries. Defendants concede that plaintiff would not have been injured if a driveline shield was in place, and plaintiff presented extensive evidence that the shield was not in place due to a fundamental defect in the post hole digger’s design. Additionally, the evidence was more than sufficient to support the jury’s finding that Jessica Bowers’s clothing was entangled due to defendants’ use of the unnecessary protruding nut and bolt on the U-joint/gearbox connection. As 1454318v1 44070.0001 71 plaintiff established through her expert, and as defendants’ own witnesses admitted, the incorporation of that nut and bolt constituted a design defect because it violated the fundamental safety design precept requiring that – whenever possible – hazards be eliminated from a product and not simply covered up (R. 801; R. 963-964; R. 1740-1743; R. 1769-1770). Therefore, even if there were merit to defendants’ contention that they cannot be held liable for supplying a defective guard (and the argument has no merit), defendants would nevertheless be liable because the unnecessary protruding nut and bolt constituted both a distinct design defect and a distinct substantial factor in causing Jessica Bowers’s injuries. POINT III PETER SMITH DID NOT SUBSTANTIALLY ALTER THE POST HOLE DIGGER WHEN HE REMOVED THE BROKEN REMNANTS OF THE PLASTIC SHIELD In Point I of their brief, defendants contend that Peter Smith disabled an existing safety feature on his Series 906 HD post hole digger when he removed the broken remains of the plastic shield that had covered the connection between the driveline and gearbox. Therefore, defendants argue, they are entitled to judgment as a matter of law under the authority of Robinson v. Reed-Prentice Div. of Package Mach. Co., in which the Court of Appeals held: “Substantial modifications of a product from its original condition by a third party which render a safe product defective are not the responsibility of the manufacturer.” 49 N.Y.2d 1454318v1 44070.0001 72 at 479 (citations omitted) (emphasis supplied). See also Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525, 532 (1991) (“a manufacturer, who has designed and produced a safe product, will not be liable for injuries resulting from substantial alterations or modifications of the product by a third party which render the product defective or otherwise unsafe” [emphasis supplied]). CNH and Niagara Frontier further contend that, no matter how foreseeable it was that the shield would disintegrate, Mr. Smith’s removal of the remnants and continued use of the machine with no guard in place insulates them from liability as a matter of law. Defendants rely upon the Robinson Court’s holding that “[p]rinciples of foreseeability . . . are inapposite where a third party affirmatively abuses a product by consciously bypassing built-in safety features” 49 N.Y.2d at 480. As demonstrated in Subpoints A and B, below, neither argument has merit. Nor is there merit to defendants’ contention that, if the Appellate Division’s order is not reversed, manufacturers will be obligated “to design safety features that never wear out.” See Brief for Defendants-Appellants, pp. 34-37. As demonstrated in Subpoint C, below, the Fourth Department stated no such thing. Rather, the court held that – upon considering the trial proof in light of existing New York law – the jurors reasonably found that Peter Smith’s post hole digger was defectively 1454318v1 44070.0001 73 designed, and that each of the two separate design defects constituted a proximate cause of Jessica Bowers’s injuries. A. PETER SMITH DID NOT SUBSTANTIALLY MODIFY THE POST HOLE DIGGER FROM ITS ORIGINAL CONDITION AND THEREBY RENDER A SAFE PRODUCT DEFECTIVE. It is axiomatic that, because a product incorporating a design defect was not reasonably safe when sold, the manufacturer and seller of such a product cannot avoid liability under Robinson v. Reed-Prentice Div. of Package Mach. Co., which applies only when a third party has rendered a safe product defective by substantially modifying it. 49 N.Y.2d at 479. Robinson is inapplicable here because – given the presence of two separate design defects in the Series 906 post hole digger – Peter Smith could not and did not “render a safe product defective” when he removed the remnants of the broken plastic shield. Mr. Smith testified at trial that, soon after he began using the post hole digger, the guard began to get “chewed up” and “pushed up” (R. 1273-1274). The damage continued to grow worse with time, he said, and the guard “tore off” multiple times (R. 1274). In an effort to keep the shield operational after it was torn off, Mr. Smith repeatedly reattached it to the gearbox using a succession of larger washers beneath the bolt heads (R. 1274). Within “[a] couple years,” Mr. Smith testified, the guard was no longer functional because it “wouldn’t properly stay on anymore,” and no longer covered the connection between the driveline and 1454318v1 44070.0001 74 gearbox input shaft (R. 1275-1276). He did not replace the guard, he said, “[b]ecause it didn’t hold up” (R. 1276). Mr. Smith’s trial testimony comported with his deposition testimony, which the court considered in denying defendants’ motions for summary judgment (R. 6482-6484; R. 6580-6581; R. 6623-6628). Simply stated, the off-the-shelf plastic shield that defendant used on the heavy duty post hole digger was destroyed within approximately two years of its sale when it was used for its intended purpose (digging holes) under actual field conditions. The shield’s remnants were not providing any protection when Peter Smith removed them, and they would not have prevented Jessica Bowers’s accident if they had been left on the machine. Thus, contrary to defendants’ argument, Peter Smith did not eliminate or disable a key safety feature. Rather, he removed the vestiges of a broken shield that was no longer providing any protection against the rotating components it was meant to cover. Mr. Smith’s actions therefore do not absolve defendants from liability as a matter of law under Robinson, as he did not effectuate a substantial modification of the post hole digger “from its original condition” and thereby “render a safe product defective.” 49 N.Y.2d at 479 (emphasis supplied). The precedents cited by defendants involving intentional efforts to bypass or remove functioning safety devices do not control because Peter Smith did not purposely disable, bypass, or remove a functional guard. See Kromer v. Beazer 1454318v1 44070.0001 75 East, Inc., 826 F.Supp. 78, 79, 81 (W.D.N.Y. 1993) (safety interlock device on printing press had been disabled by tying up the actuator switch with a rag or string); Vega v. Stimsonite Corp., 11 A.D.3d 451, 452 (2d Dep’t 2004), lv. dismissed, 4 N.Y.3d 759 (2005), lv. dismissed, 6 N.Y.3d 805 (2006) (owner of road-marking machine had materially modified it by removing factory-equipped parts and substituting others in their stead); Wyda v. Makita Elec. Works, Ltd., 232 A.D.2d 407, 408 (2d Dep’t 1996) (employer had wedged safety guard open with a piece of wood). Moore v. Deere & Co., 195 A.D.2d 1044 (4th Dep’t 1993), lv. denied, 82 N.Y.2d 663 (1993), is also distinguishable. The plaintiff in Moore did not contend that the missing guard was defective, or that it had failed to hold up under reasonably foreseeable use. Rather, he expressly argued that his “only claim in this case is that the tractor was defective because its design did not incorporate a ‘kill switch’ located near the tractor’s PTO shaft which would allow a person located behind the tractor to immediately disengage the power to the PTO shaft in an emergency by activating the switch” (emphasis supplied in part).6 The Appellate Division rejected plaintiff’s argument, holding that it “was conclusory and insufficient to defeat summary judgment.” Moore, 195 A.D.2d at 6 See pages 4-5 of plaintiff’s brief in Moore v. Deere & Co. (App-3 to App-4 hereto) and the affidavit of plaintiff’s expert, pages R. 93-94 of the Moore Record on Appeal (App-5 to App- 7 hereto). 1454318v1 44070.0001 76 1045. It further held that, because defendant had established that “the removal of the safety shield was the proximate cause of plaintiff’s injuries,” defendant could not be held “liable for injuries proximately caused by a material alteration of the product that destroys the functional utility of a key safety feature.” 195 A.D.2d at 1045. Moore did not involve – and the court did not address – the question of whether the designer, manufacturer, and seller of a product containing a defective guard should be permitted to shift the entire responsibility for that defect to an end user who did not replace the guard when it failed as a result of the design defect. Wood v. Peabody Int’l Corp., 187 A.D.2d 824 (3d Dep’t 1992), also cited by defendants, is distinguishable on similar grounds. The plaintiff in Wood was injured when a trailer door suddenly opened, striking him. 187 A.D.2d at 824-825. The trailer had originally been equipped with latches that would have prevented the door from opening unless they were affirmatively released. Id. at 824. Plaintiff’s employer removed the latches prior to the accident because they had been damaged when the trailer was pushed by another vehicle after getting stuck in the mud. Id. at 826. The plaintiff in Wood did not contend that the latches constituted a design defect, and that they had failed to hold up when the trailer was used in the intended or reasonably foreseeable manner. Rather, he sought to impose liability based solely on the manufacturer’s failure to provide adequate warnings and instructions 1454318v1 44070.0001 77 informing plaintiff how to use the doors.7 The Third Department rejected that argument upon the ground the potential danger was patent. 187 A.D.2d at 825-826. Therefore, said the court, “the City’s tampering with the safety locks feature of the trailer was the [sole] proximate cause of plaintiff’s injuries.” Id. at 825. Thus, like Moore, Wood is inapplicable here because, unlike Jessica Bowers, the plaintiff was not alleging that a necessary safety component failed due to a defective design. Furthermore, there is no merit to defendants’ contention that, under the reasoning of Wood, Peter Smith was obligated to purchase an optional auger extension, and that his election not to do so insulates defendants from liability as a matter of law.8 Defendants did not raise that argument in their motion for summary judgment (R. 4241-4267), their post-trial motion (R. 7535-7562), or their Appellate Division brief. They may therefore not raise it before this Court. Shapiro v. City of New York, 32 N.Y.2d at 101-102 & n.5. In any event, the argument is without merit. Peter Smith testified that the standard auger permitted him to dig holes that were sufficiently deep (R. 1264; R. 1330). James Suhr, the SMC expert upon whom CNH relied in moving for 7 See plaintiff’s brief in Wood v. Peabody Int’l Corp. (App-8 to App-23). 8 The court in Wood noted – in dicta that was not essential to its dismissal of plaintiff’s failure-to-warn claim – that the trailer’s owner could have purchased optional push plates that would have covered the latches. 187 A.D.2d at 826. 1454318v1 44070.0001 78 summary judgment, likewise stated that the standard auger enabled Mr. Smith to dig all the holes he needed for his viticulture operation (R. 4516, ¶ 8). Defendants interposed no evidence that the use of an extension would have eliminated incidents where the auger gets sucked into the ground, causing the shield to deform and strike the rotating driveline. In fact, the evidence shows, the use of an auger extension would have generated greater problems given augers’ propensity to drill themselves as deep as possible, become lodged in the ground, and have to be dug out by hand (R. 1265; R. 1402-1403; R. 8221). If an extension were in place it would allow the auger to dig deeper, exacerbating the risks of binding and driveline overload while simultaneously increasing the difficulty of extricating the stuck augers by hand. Accordingly, defendants are not entitled to judgment as a matter of law based on Peter Smith’s use of a standard auger. Rather, his use of the standard auger constituted a factual issue that the jury could take into account in determining liability and apportioning fault. In sum, therefore, there is no merit to defendants’ contention that they are entitled to judgment as a matter of law under the reasoning of Moore v. Deere & Co. and Wood v. Peabody Int’l Corp., which are distinguishable on both their facts and the plaintiffs’ theories of liability. This action is, however, analogous in all respects to Ruthosky v. John Deere Co., 235 A.D.2d 620 (3d Dep’t 1997), which 1454318v1 44070.0001 79 the Third Department decided five years after Wood. The plaintiff in Ruthosky was injured when his right arm became entangled in an unshielded PTO driveline on a manure spreader. 235 A.D.2d at 621. In moving for summary judgment, the defendant manufacturer established that, at the time the machine was made and sold, safety shields had been bolted in place over the driveline. Id., at 622. In opposing the motion, plaintiff interposed the affidavit of a professional engineer who opined that the shields had “the potential to crack, fall off and not be replaced,” thereby creating “an inference that the spreader was unsafe as designed.” Id. The expert described alternative designs that were economically and technically feasible at the time the spreader was manufactured and opined that, if one of the alternative designs had been in place, the accident would not have occurred. Id. In this case, similarly, Jessica Bowers’s expert, Thomas Berry, opined that the manufacturer’s incorporation of an inexpensive, off-the-shelf plastic shield on Peter Smith’s post hole digger constituted a design defect because it was not adequate to provide protection throughout the useful life of the machine (R. 1791- 1792; R. 1800-1902; R. 1923-1924). Like the expert in Ruthosky, Mr. Berry also opined that agricultural equipment engineers have long been known that guards that are destroyed will commonly not be replaced if the machine still functions (R. 1792; R. 1793). Mr. Berry identified economical and durable design alternatives 1454318v1 44070.0001 80 and opined that – if they had been used – Ms. Bowers would not have been injured because they would have been in place, and shielded the U-joint/gearbox connection (R. 1801-1810; R. 1824-1840; R. 1851). In particular, he said, the integral guard (Plaintiff’s Exhibit 161) – which was technically and economically feasible in the mid 1990’s – would have both held up throughout the machine’s useful life and rendered the post hole digger unusable if it was not present (R. 1803-1811; R. 1838-1839; R. 1851). B. PETER SMITH DID NOT CONSCIOUSLY BYPASS THE POST HOLE DIGGER’S BUILT-IN SAFETY FEATURES. In Robinson v. Reed-Prentice Div. of Package Mach. Co., the Court held that if a “third party affirmatively abuses a product by consciously bypassing built- in safety features” a manufacturer may not be held liable no matter how foreseeable such conduct may be. 49 N.Y.2d at 480 (emphasis supplied). In so holding, the Court was addressing situations in which a third party intentionally disables or removes a safety device to “meet its own self-imposed production needs.” Id. In the case before it, for example, the owner of a plastic molding machine cut away part of a safety barrier so it could be used to manufacture strung beads. Id. at 476-477. In the present case, on the other hand, Peter 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 1454318v1 44070.0001 81 took to bore a hole. Rather, the shield disintegrated to the point of uselessness while Mr. Smith was using the machine for its intended purpose. Therefore, defendants are not insulated from liability under the principle that, regardless of foreseeability, a manufacturer has no control over a third party’s conscious election to bypass a fully operational safety device to suit his own needs. The Third Department’s decision Neri v. John Deere Co., 211 A.D.2d 915 (3d Dept 1995), is instructive here. The plaintiff in Neri sought damages for injuries sustained when his shirt became entangled in an exposed portion of the PTO shaft on a forage wagon. A clip used to hold the safety shield in place had slipped out of position, exposing a portion of the shaft. Defendants moved for summary judgment dismissing the design defect case based on a “substantial modification of the power take off unit.” The court rejected the defendant’s argument, stating “there’s no record evidence that a . . . third-party affirmatively abuse[d] [the] product by consciously bypassing built-in safety features.” 211 A.D.2d at 916 (emphasis supplied). Here, likewise, Peter Smith did not consciously bypass an operational, built- in safety feature. Nor did he abuse the post hole digger, as defendants also assert. Mr. Smith testified that, in the normal course of digging holes, the guard sometimes comes in contact with the ground, pushing the shield against the rotating driveline (R. 1263-1269; R. 1273; R. 1329; R. 1396; R. 1402-1403). SMC 1454318v1 44070.0001 82 engineer Kermit Hillman, CNH engineer Steven Schlotterbeck, and defense expert Ralph Shirley all admitted that such contact is foreseeable (R. 843; R. 845; R. 1116-1117; R. 3397-3398). Plaintiff’s expert, Thomas Berry, also testified that such contact is foreseeable (R. 1796-1799). Mr. Berry further testified that, given the shield’s flexibility, it was equally foreseeable the shield would bend and come in contact with the rotating drive line, thereby damaging the shield (R. 1799-1800). Contrary to defendants’ assertion, the Operator’s Manual did not advise users to avoid contact between the shield and the ground. CNH engineer John Riffanacht admitted that the Operator’s Manual contained no such language (R. 1176). In fact, the manual states only that the auger should not be submerged above the flighting “as this will cause binding and overloading” (R. 8220, Col. 1). That is the only reference to a potential issue related to digging depth, and it does not relate to guard damage. Thus, it cannot be said as a matter of law that Peter Smith abused the post hole digger when he dug holes in such a fashion that the shield at times contacted the ground. Rather, the jury could find, he used the machine as intended or used it in an unintended but entirely foreseeable manner. See Micallef v. Miehle Co., 39 N.Y.2d at 385-386. 1454318v1 44070.0001 83 The Drafters’ Comment to N.Y. PJI 2:120 is instructive on this issue, and establishes that Mr. Smith did not misuse his post hole digger to such an extent that defendants were relieved of design-defect liability as a matter of law. The Comment states: “Misuse of a product which is so outrageous that there is no product defect, and, therefore, no liability at all should not be confused with the use of the product which was not intended but was reasonably foreseeable.” Id., Comment, subd. E. In explaining the distinction, the Drafters state: “The difference may be clarified by example: to put metal objects in a food blender causing the glass to shatter and injure a third person is to use the blender for an unintended purpose, relieving the manufacturer of liability. The manufacturer of a motor vehicle, however, has a duty to design a vehicle that will minimize the aggravation of injury in the event of a collision because in actual use collisions occur frequently enough to be within the expected use of such a vehicle.” Id. Under that analysis, the manufacturer of a post hole digger would have no liability if the owner damaged or destroyed a key component by using the machine in an utterly unintended and unforeseeable manner, e.g., by moving the auger up and down, jackhammer fashion, to break up concrete pavement. Peter Smith used the post hole digger for its intended purpose, however, and the jury could and did find that the methods he employed were reasonably foreseeable, thus imposing upon defendants the obligation to take such expected use into account. 1454318v1 44070.0001 84 C. DEFENDANTS’ LIABILITY FLOWS FROM THEIR INCORPORATION OF A PLASTIC SHIELD THAT WAS UNFIT FOR ITS INTENDED OR FORESEEABLE USES, NOT FROM THEIR FAILURE TO BUILD AN INDESTRUCTIBLE MACHINE. CNH and Niagara Frontier argue that, under the Fourth Department’s reasoning in this case, manufacturers will henceforth be obligated “to design safety features that never wear out.” See Brief for Defendants-Appellants, p. 34. The imposition of such a duty, defendants further argue, runs contrary to existing case law recognizing that designers and manufacturers do “not have a duty to design invincible, fail-safe, and accident proof products that are incapable of wearing out.” Mayorga v. Reed-Prentice Packaging Mach. Corp., 238 A.D.2d 483, 484 (2d Dep’t 1997). There is no merit to defendants’ argument. Defendants’ liability flows not from their failure to provide an indestructible product, but from their provision of a safety shield that was unreasonably insubstantial given its intended purpose and foreseeable use. Under defendants’ argument, the manufacturer and seller of a mechanized product would be insulated from liability if, at the time of sale, hazardous moving components were covered by any form of shield, regardless of how durable it was. Under that view, CNH and Niagara Frontier could have satisfied their duty of care by incorporating a lampshade as a driveline guard. That is not and never has been the law in New York. Rather, as stated in Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., manufacturers must 1454318v1 44070.0001 85 design their products “so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is use in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.” 39 N.Y.2d at 385-386 (citations omitted) (emphasis supplied). Under that principle, which was duly charged by the trial court (R. 4065), the jury found that the plastic shield on Peter Smith’s post hole digger was not reasonably safe. The verdict was entirely rational given the trial proof. It is undisputed that, fewer than two years after Peter Smith acquired the post hole digger, the plastic shield that covered the U-joint/gearbox connection had broken, fallen off, and been reinstalled multiple times until it finally lost all efficacy as a guard (R. 1273-1276). Only then did Mr. Smith remove the remaining shards (R. 1274-1276). In the ensuing years, Mr. Smith and his employees continued to use the post hole digger to bore holes in Mr. Smith’s vineyard (R. 1268; R. 1334). As in the two years leading up to the shield’s disintegration, the auger would at times drill so deep that the U-joint/gearbox connection would contact the ground (R. 1263-1266; R. 1268-1270; R. 1288-1290; R. 1329-1330). The post hole digger nevertheless continued to operate without a problem (R. 1246; R. 1260-1262). Defense expert Ralph Shirley, who inspected the post hole digger in October 2008, testified that “the gearbox was in good condition” at that time, four years after Jessica Bowers’s 1454318v1 44070.0001 86 accident (R. 3157, 3159). “I didn’t see any oil leaks or that kind of thing,” he said (R. 3159). Thus, apart from the shield, the post hole digger successfully performed its intended function and remained intact throughout the entire time Peter Smith owned it – something it would not have done if he was abusing or misusing it. The guard – which should have been one of the sturdiest components because it serves as the bulwark against inadvertent contact and injury – proved to be the only fragile part on the entire post hole digger. That is not surprising given the fact that, at $6.14, it was also the cheapest component on the machine (R. 1047; R. 1684). Although the spiral flighting on the auger wore down, decreasing the diameter of the holes that Mr. Smith dug and necessitating the auger’s replacement, (R. 1276; R. 1373-1375), such wear is expected given that soil is inherently abrasive. Likewise, power saw blades must be regularly replaced when they become dull through use. Contrary to defendants’ argument, guards on mechanized equipment are not similarly intended to require regular replacement as a part of “routine maintenance.” Nor are owners expected to replace safety shields on a periodic basis in the same way they maintain machinery by regularly lubricating it. Rather, as Thomas Berry testified, a guard should be designed so it will remain intact and in place throughout a machine’s expected life (R. 1791-1792; R. 1802). Likewise, 1454318v1 44070.0001 87 SMC designer David Horrman admitted that protective guards should be constructed of material “substantial enough . . . to withstand all known conditions,” and that guards should be constructed of material that is similar in quality to a machine’s other components provided that it does not affect the machine’s utility (R. 1071 [emphasis supplied]). Under defendants’ analysis, a manufacturer could satisfy its obligation to produce and market a reasonably safe product by incorporating protective components that would foreseeably not hold up over the life of the product, and thereby shift to the owner the obligation to repeatedly replace those components in order to keep the product safe. The adoption of that principle would overrule existing New York law by insulating manufacturers from liability even though their products were “not reasonably safe” because “the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner.” Voss v. Black & Decker Mfg. Co., 59 N.Y.2d at 108. In sum, neither the jury’s verdict nor the Appellate Division’s decision manifests an implicit determination that defendants had an obligation to market a machine whose component parts could never be broken or wear out. Rather, as the Appellate Division correctly observed, the jury’s verdict in this case was predicated on evidence that the “the plastic gearbox shield” was defective because it “could be damaged by normal use or foreseeable misuse of the digger” (R. 13a). 1454318v1 44070.0001 88 That finding comports with the fundamental precept enunciated in Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., and with the Third Department’s decision in Ruthosky v. John Deere Co., 235 A.D.2d at 622. Furthermore, the jury’s apportionment of liability to Peter Smith, SMC, CNH, Niagara Frontier, and the Estate of Gary Hoover belies defendants’ assertion that manufacturers will face “limitless liability” based on an owner’s failure to maintain a product. Under New York law, juries regularly apportion fault to individuals whose culpable conduct in using a defective product contributed to the plaintiff’s injuries, thereby reducing the defendant manufacturer’s proportionate liability. See Sheppard v. Charles A. Smith Well Drilling & Water Sys., 93 A.D.2d 474, 477-478 (3d Dep’t 1983) (plaintiff’s or third party’s misuse or mishandling of a product that is not reasonably safe is relevant to the issues of comparative fault and liability apportionment); accord Schafer v. Standard Rwy. Fusee Corp., 200 A.D.2d 564, 565 (2d Dep’t 1994). The verdict here demonstrates jurors’ collective ability to consider the totality of the evidence and rationally apportion fault among all the entities whose culpable conduct – although arising from differing relationships, and assessed under distinct legal theories – constituted substantial causes of the plaintiff’s injuries. 1454318v1 44070.0001 89 POINT IV THE VERDICT WAS NOT BASED ON IMPROPERLY ADMITTED EVIDENCE A. THE COURT DID NOT PERMIT THE INTRODUCTION OF IMPERMISSIBLE “TEST” RESULTS. There is no merit to defendants’ contention that plaintiff was improperly permitted to introduce evidence as to the post-accident “testing” of a replacement driveline shield. Prior to Peter Smith’s trial testimony, plaintiffs made an offer of proof outside the jury’s presence with respect to the admissibility of evidence as to Mr. Smith’s installation of a new shield in June 2005 (R. 1214-1241). Before hearing the proposed testimony the Trial Judge ruled that if Mr. Smith had been engaged in the conduct of a “test” or a demonstration performed for purposes of trial, he would not permit the introduction of proof (R. 1201-1202). During the offer of proof, Mr. Smith testified that in June 2005 he purchased and installed a new shield (R. 1213-1214). He then operated the post hole digger several times while it was photographed (R. 1215-1216). Mr. Smith identified photographs of the new shield (R. 1214; R. 1218; Photographs, R. 8259-8261). During the offer of proof, Peter Smith testified that from June 2005 through October 2005 the post hole digger was used in the same manner it had always been used (R. 1217). As was common, he stated, the machine was operated by his employees (R. 1231-1233). There was no “testing” of the machine, he stated (R. 1454318v1 44070.0001 90 1233). Mr. Smith also identified photographs of the shield as it looked during the course of an October 12, 2005 inspection (R. 1218; Photographs, R. 8262-8265). The trial court held that Mr. Smith could testify as to the shield’s replacement and the use of the machine thereafter (R. 1238). In addition, the court held, plaintiffs could introduce into evidence the October 2005 photographs showing how the shield looked after four months of use (R. 1241). During the course of his testimony before the jury Peter Smith testified as to the same facts addressed during the offer of proof, i.e., his installation of a new shield in June 2005, his use of the machine to dig several holes, his employees’ use of the post hole digger during the normal course of operations in the ensuing four months, and the damage that the shield sustained during that time (R. 1280-1292). The court admitted into evidence the photographs depicting the new shield as it appeared on the day of installation and the day of the October 12, 2005 inspection (R. 1241; R. 1290). Plaintiffs’ expert, Thomas Berry, did not predicate his expert opinion regarding the plastic shield’s inadequacy upon the damage that occurred to the replacement shield following its installation in June 2005. Defendants, on the other hand, elicited testimony from their own mechanical engineering expert, Ralph Shirley, to the effect that Peter Smith had not properly installed the new shield in June 2005 (R. 3233-3234; R. 3255-3259). In addition, defendants themselves moved into evidence photographs showing the damaged condition of the replacement shield 1454318v1 44070.0001 91 in October 2005 (R. 3243-3245; R. 8987-8988). Furthermore, counsel for CNH and Niagara Frontier broached the topic of the October 2005 condition of the replacement shield during the course of her summation, arguing that Peter Smith and his employees had intentionally abused the shield after it was installed in June 2005 (R. 3925-3927). Thus, contrary to defendants’ argument, the trial court did not improperly admit scientific proof of a post-accident “test” or “demonstration” of the plastic shield’s durability. Rather, the court permitted the introduction of factual evidence as to Peter Smith’s installation of a new shield and the subsequent condition of that shield following the post hole digger’s operation in the ensuing months. The court then permitted CNH and Niagara Frontier to assert, through their expert and their attorney, that the damage depicted in the photographs was caused by intentional misuse. B. THOMAS BERRY’S EXPERT TESTIMONY AS TO CAUSATION WAS PROPERLY ADMITTED. The trial court did not err in permitting Thomas Berry to opine that the connection between the driveline U-joint and gearbox input shaft constituted a substantial factor in causing Jessica Bowers’s injuries because her clothing got caught on the protruding nut and bolt (R. 1787). Mr. Berry testified that he had education, training, and experience in hazard analysis, which entails the identification of hazards engendered by machinery (R. 1710). Addressing the hazards posed by 1454318v1 44070.0001 92 rotating parts, Mr. Berry stated that the entanglement hazards presented by drivelines are greatly enhanced when there is a protrusion (R. 1723-1725; R. 1884-1885; R. 1901). Mr. Berry also testified that he had education, training, and experience in the investigation of entanglement hazards (R. 1776). He testified on cross-examination that he had performed testing on PTO shafts to determine how clothing can become entangled (R. 1884). He observed that, unlike with a smooth shaft, clothing will immediately snag on a protrusion and start wrapping around the shaft (R. 1884). Mr. Berry further testified on cross-examination that rotating U-joints, while hazardous, are less likely to catch clothing than sharp protrusions (R. 1900-1901). As the Court of Appeals held in Selkowitz v. County of Nassau, 45 N.Y.2d 97 (1978), “[w]hether or not expert testimony is admissible on a particular point is a mixed question of law and fact addressed primarily to the discretion of the trial court.” 45 N.Y.2d at 101-102. And, as the Court held in Price v. New York City Hous. Auth., 92 N.Y.2d 553 (1998), a trial court may conclude that an expert is qualified “through long observation and actual experience” derived “from the real world of everyday use.” 92 N.Y.2d at 559 (citation and internal quotation marks omitted). In the present case, the trial court did not abuse its discretion in allowing Thomas Berry to testify that in his opinion Jessica Bowers’s coat had gotten 1454318v1 44070.0001 93 entangled on the nut and bolt (R. 1787). In Office Park Corp. v. County of Onondaga, 64 A.D.2d 252 (1978), aff’d on Appellate Division opinion, 48 N.Y.2d 765 (1979), the court held that “[w]here an expert’s opinion is wholly speculative (i.e., there is no proof of the existence of a single fact in the case upon which the theories of the expert were based), the expert’s opinion is not entitled to probative force.” 64 A.D.2d at 259. Here, Thomas Berry’s opinion was properly predicated on: (1) his professional knowledge and experience as to the varying risks posed by rotating shafts, U-joints, and sharp protrusions (R. 1722-1725; R. 1884-1885; R. 1900-1901); (2) his own inspection of the connection on Peter Smith’s post hole digger (R. 1725-1726); (3) his examination of the Sheriff’s Department photographs showing the coat immediately after Jessica Bowers was taken to the hospital (R. 1787-1789); and (4) Peter Smith’s testimony that, upon unwinding the garment, he observed that the pocket had in fact been caught on the nut and bolt (R. 1787). Contrary to defendants’ further argument, the trial court did not abuse its discretion in permitting Thomas Berry to testify that there is a recommended procedure whereby emergency response personnel will “slowly unwrap” something that is entangled on a driveline until they reach “a solid connection onto the shaft” in order to “identify the entanglement, where the – what caused the entanglement on the shaft” (R. 1786). 1454318v1 44070.0001 94 Even if this Court concludes that the trial court improvidently exercised its discretion, defendants in any event sustained no significant prejudice. The testimony as to the existence of an EMT protocol took up thirteen lines in a 3,600-page trial transcript (R. 1786). Mr. Berry did not assert that he was an EMT. Moreover, he acknowledged on cross-examination that so far as he knew Peter Smith was not an EMT, and did not follow any formal protocols when unwrapped Jessica Bowers’s coat on the night of the accident (R. 1881). Furthermore, as the Court held in Selkowitz, a “defendant [is] of course . . . free to impeach the plaintiffs’ expert or to offer a different opinion through its own qualified witnesses.” 45 N.Y.2d at 103. Defense expert Alfred Bowles, M.D. testified that there was no EMT protocol governing the unwrapping of entangled objects (R. 2970-2971). Thus, the jury was presented with conflicting expert opinion. Upon considering the totality of the proof and applying his or her own common sense, any reasonable person could reject Dr. Bowles’s assertion that it was impossible to say where Jessica Bowers’s coat caught, and conclude instead that it had gotten entangled on the protruding nut and bolt. 1454318v1 44070.0001 95 POINT V THE JURY’S VERDICT WAS BASED UPON LEGALLY SUFFICIENT EVIDENCE In Point VI of defendants’ brief, defendants contend that there was not legally sufficient evidence to support the jury’s apportionment of 35% of the fault to CNH, while at the same time apportioning only 30% to Peter Smith and 3% to Gary Hoover. This Court should not even consider that argument because defendants did not preserve it in the lower courts or in their motion for leave to appeal. Rather, defendants argued only that the verdict was against the weight of the evidence insofar as it apportioned fault. See Defendants’ post trial motion (R. 7555-7559); Defendants’ Appellate Division brief dated March 26, 2012, pp. 38-47; Defendants’ motion for leave to appeal, pp. 29-32. This Court could not have addressed defendants’ weight-of-the-evidence argument under the well-settled principle that “[a] ‘weight of the evidence’ determination is a factual one that [the Court of Appeals has] no power to review.” Heary Bros. Lightning Protection Co., Inc. v. Intertek Testing Services, N.A., Inc., 4 N.Y.3d 615, 618 (2005) (citing Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 498-500 [1978]). See also Gutin v. Frank Mascali & Sons, Inc., 11 N.Y.2d 97, 99 (1962) (“The theory that the verdict arrived at was much against the weight of the evidence could be argued to the Trial Court and to the Appellate Division but not to the Court of Appeals” [citations omitted]). 1454318v1 44070.0001 96 Having realized that they cannot press their weight-of-the-evidence argument in this Court, defendants now seek to recast the argument as one involving the legal sufficiency, rather than the weight, of the evidence. The Court should rebuff defendants’ argument under Shapiro v. City of New York, 32 N.Y.2d at 101-102 & n.5, and Quain v. Buzzetta Const. Corp., 69 N.Y.2d at 379. See discussion at page 63-64, above. If it considers defendants’ liability-apportionment argument, moreover, the Court should reject it on the merits. Under Cohen v. Hallmark Cards, a court may set aside a jury’s finding on the ground that it was not supported by sufficient evidence only where “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial.” 45 N.Y.2d at 499. The jury’s apportionment of liability here was completely rational in light of the trial proof, particularly when it is considered in the light most favorable to plaintiff and every possible inference is drawn in her favor. Dinardo v. City of New York, 13 N.Y.3d at 874. Jessica Bowers presented proof that, pursuant to universally recognized design principles: (1) hazards must be designed out of a product if at all possible; (2) if hazards cannot be eliminated in the design phase, they must be shielded through the use of guards that will last the life of the product based on its foreseeable uses, 1454318v1 44070.0001 97 whether intended or unintended; and (3) warnings must be provided as to any hazards that cannot be eliminated or shielded (R. 787; R. 904; R. 941-942; R. 963-964; R. 1715-1718; R. 2841). In addition, plaintiff introduced expert proof that, within the field of agricultural design and engineering, it is well known that users of equipment will commonly not replace shields or guards that break or fall off if the equipment can be used without them (R. 1792; R. 1923-1924). Jessica Bowers also presented evidence that SMC, with CNH’s knowledge and concurrence: (1) changed the Series 906 HD’s design in 1995 from a protrusion-free design to one using an unnecessary protruding nut and bolt at the gearbox connection; (2) purposefully rejected the use of protrusion-free slide collar or countersunk nut and bolt at the connection; and (3) incorporated an inadequate plastic shield over the protruding nut and bolt and surrounding area without testing its durability and longevity, particularly under real-world conditions (Statement of Facts, pp. 11-18, above). In addition, Ms. Bowers presented expert proof that the use of the protruding nut and bolt and the inadequate plastic shield constituted design defects, and that safe design alternatives were technologically and economically feasible (R. 1740-1743; R. 1759-1767; R. 1800-1803; R. 1848-1850; R. 1914-1915). Given that proof, the jury reasonably found that SMC, CNH, and Niagara Frontier were each responsible for Jessica Bowers’s injuries, apportioning 30% of the fault to SMC, 35% to CNH, and 2% to Niagara Frontier (R. 4118-4119; R. 8193). 1454318v1 44070.0001 98 The jury’s apportionment of only 2% of the liability to Niagara Frontier, the retailer, establishes that it carefully assessed the various defendants’ respective degrees of culpability based on their abilities to influence the product’s design. Likewise, in apportioning 35% of the liability to CNH even though SMC designed and manufactured the post hole digger, the jury recognized that CNH was in the best position to ensure that the post hole digger incorporated no design defects and was reasonably safe for its foreseeable uses given the company’s size, market experience, economic dominance over SMC, final approval of the machine’s design, and ultimate responsibility as the seller of “Ford” and “Ford New Holland” products. The jury’s apportionment of 30% of the liability to Peter Smith was supported by legally sufficient evidence. Jessica Bowers introduced evidence that it was foreseeable the Series 906 post hole diggers would at times be used in such a fashion that the guard would contact the ground and press up against the rotating shaft, thereby sustaining damage (R. 1796-1799). Although Mr. Smith did not replace the original shield once it fell apart, Jessica Bowers established that that was by no means uncommon (R. 1792; R. 1923). In addition, plaintiff presented evidence that the incorporation of a protruding nut and bolt on the gearbox connection constituted both an inexcusable design defect and a substantial cause of her injuries (R. 1722-1725; R. 1769-1770; R. 1787). Although Gary Hoover testified that Peter Smith had replaced the original bolt with 1454318v1 44070.0001 99 an over-length one prior to the accident (R. 3586), Mr. Smith denied having done so (R. 1318-1320). The jury was, of course, free to credit Mr. Smith and find that the hazard presented by the replacement nut and bolt was identical to the hazard presented by the original protruding nut and bolt. Defendants further argue that the jury disregarded the fact that Mr. Smith ostensibly misused the post hole digger by having a person on the ground assist the operator, who was positioned on the tractor’s seat (Brief for Defendants-Appellants, p. 58). In so arguing, defendants ignore the fact that the Operator’s Manual and parts diagram indicate that an optional Auger Positioning Handle could be purchased and attached to the gearbox, establishing CNH’s awareness that it was sometimes necessary to manually position the auger (R. 8219; R. 8228; R. 8251-8252). Upon considering the totality of the evidence, the jury reasonably found that, although Mr. Smith bore substantial liability for Jessica Bowers’s injuries, it was nevertheless exceeded by the liability collectively apportioned to SMC, CNH, and Niagara Frontier. The jury’s apportionment of 3% of the liability to the Estate of Gary Hoover is likewise supported by legally sufficient evidence. Mr. Hoover was not employed on Peter Smith’s grape farm, and did not regularly use Mr. Smith’s post hole digger (R. 1244-1245; R. 1301). Rather, he briefly helped Mr. Smith dig some holes in 2000- 1454318v1 44070.0001 100 2001, when Mr. Smith was in the operator’s seat, and then dug some holes with one of Mr. Smith’s employees over the course of two days in 2003 (R. 2731-2738). Gary Hoover never saw the Operator’s Manual, and was unaware that the machine had originally had a shield over the gearbox connection (R. 1305; R. 2741- 2742). In using the post hole digger on October 2, 2004, first with his wife, Lori Hoover, and then with his stepdaughter, Jessica Bowers, Mr. Hoover employed the same method he learned from Mr. Smith (R. 2744-2754). Mr. Hoover said he believed that Jessica was standing away from the machine (R. 2754-2757). He turned forward to engage the PTO and then turned around again, upon which he saw Jessica hanging on the driveline (R. 2755-2756). Upon considering the totality of the evidence, therefore, the jury could – and did – reasonably determine that Mr. Hoover bore slightly more responsibility for Jessica Bowers’s injuries than did Niagara Frontier, but substantially less responsibility than Peter Smith, SMC, and CNH. 1454318v1 44070.0001 101 POINT VI THE JURY CHARGE WAS IN ALL RESPECTS PROPER A. SUBSTANTIAL MODIFICATION. Contrary to defendants’ argument, Supreme Court’s charge regarding their substantial modification defense was not “patently erroneous.” According to defendants, the court improperly instructed the jurors that a post-sale substantial modification was nothing more than a factor the jury could consider in determining whether a product was defective. That is not true. In fact, the court expressly charged: A manufacturer and/or seller of a product that is reasonably safe for its intended use cannot be held liable for personal injury under strict liability based upon a design defect if after the product leaves the possession and control of the manufacturer there is a substantial modification that proximately causes the Plaintiff’s injuries. [R. 4068-4069 (emphasis supplied).] In addition, the court told the jury: A manufacturer’s duty does not extend to designing a product that is impossible to abuse or one whose safety features may not be circumvented. Material alterations at the hands of a third-party which work a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature, however foreseeable that modification may have been, are not within the ambits of a manufacturer’s responsibility. [R. 4069.] 1454318v1 44070.0001 102 Thus, contrary to defendants’ contention, the court properly instructed the jurors that they could not find defendants liable if (1) the post hole digger was reasonably safe for its intended use at the time of manufacture, and (2) Peter Smith substantially modified the machine by removing or otherwise circumventing an adequate, non-defective safety feature. Nor is there merit to defendants’ contention that the trial court erred in failing to employ defendants’ verdict sheet. Under defendants’ proposal, the jury would have been asked: “Did Peter Smith make one or more substantial modification(s) to the 906 HD posthole digger after it left the possession and control of the manufacturer?”; and “Was a substantial modification to the 906 HD posthole digger by Peter Smith a proximate cause of the October 2, 2004 accident?” (R. 8078, ¶¶ 3-4). The jury was told that if it answered “yes” to the second question it was not to answer the two succeeding questions, which asked: “Was the Model 906 HD posthole digger defectively designed when it left the manufacturer?”; and “Was a design defect in the posthole digger at the time of manufacture a proximate cause of the October 2, 2004 accident?” (R. 8078, ¶¶ 5-6). The proposed charge was misleading, prejudicial, and contrary to New York law. As this Court held in Robinson v. Reed-Prentice Div. of Package Mach. Co., a manufacturer is insulated from liability only if a third party (1) substantially 1454318v1 44070.0001 103 modifies a product “from its original condition,” and (2) thereby “render[s] a safe product defective.” 49 N.Y.2d at 479. Defendants’ proposed verdict sheet omitted those critical elements of the substantial modification defense, thereby misleading the jury into concluding that any “modification” that could be deemed “substantial” would absolve CNH and Niagara Frontier of liability even if it did not render a safe product defective. Therefore, the trial court properly declined to adopt defendants’ proposed verdict sheet, and instead employed the Pattern Jury Instructions’ special verdict form (R. 8189-8195). See N.Y. PJI 2:120 SV-1. B. THE BURDEN OF PROOF. Defendants, without any elaboration, assert that the trial court’s charge “mischaracterized Plaintiffs’ and Defendants’ respective burdens of proof.” Brief for Defendants-Appellants, p. 54. The charge was, in fact, correct (R. 4052-4054; R. 4068). The court properly instructed the jurors that Jessica Bowers had the burden of proving that the post hole digger was defectively designed, and that the design defect or defects were a substantial factor in causing her injuries (R. 4054). In addition, the court properly instructed the jurors that CNH and Niagara Frontier had the burden of proving the liability of Jessica Bowers, third-party defendant Estate of Gary Hoover, and settled defendants Peter Smith, Walterscheid, NEAPCO, and SMC (R. 4054). 1454318v1 44070.0001 104 The instruction comports with settled New York law. See PJI 2:120 (“The burden of proving that [plaintiff's] negligence contributed to . . . her . . . injuries is on defendant”); Bigelow v. Acands, Inc., 196 A.D.2d 436, 438 (1st Dep’t 1993) (the non-settling defendant “bore the burden of establishing the equitable shares attributable to the settling defendants for purposes of reducing the amount of [its] own responsibility for the damages”). Thus, the trial court’s charge was appropriate, and the wording was not confusing. More importantly, defendants have not established that they were somehow prejudiced by it. Furthermore, there is no merit to defendants’ contention that Supreme Court committed prejudicial, reversible error by instructing the jury that it could find NEAPCO, Walterscheid, and SMC “were at least also responsible” if the jury concluded the post hole digger contained a design defect (R. 4053-4054). Defendants contend that the instruction improperly implied that defendants were necessarily at fault to some extent. In making that argument, defendants quote a small portion of the charge and disregard the context in which it was used. The court charged: “CNH and Niagara Frontier claim that the post hole digger was not defectively designed. . . . They also claim that if the machine was defective and if that defect was or those defects were a substantial factor in causing injuries to Jessica Bowers, that the entities who were involved in the design, 1454318v1 44070.0001 105 manufacture and distribution of the post hole digger; that is, NEAPCO, Walterscheid and SMC Corporation are responsible for the defective design or at least also responsible” (R. 4053-4054 [emphasis supplied]). Thus, contrary to defendants’ argument, Supreme Court properly informed the jurors that they could find that (1) the post hole digger did not have a design defect, (2) if a product defect did exist, settled defendants NEAPCO, Walterscheid, and SMC were wholly responsible for it, or (3) if a product defect did exist, NEAPCO, Walterscheid, and SMC were “also responsible” along with CNH and Niagara Frontier. CNH and Niagara Frontier sustained no arguable prejudice as a result of the charge, as it properly instructed the jury as to the liability findings that were open to it. In any event, defendants waived their objection to the language by failing to object to it at the conclusion of the charge (R. 4088). C. STRICT PRODUCTS LIABILITY. There is no merit to defendants’ assertion that the trial court committed reversible error in incorporating language from N.Y. PJI 2:125A into its products liability charge. The court, in concluding its charge as to products liability, instructed: A manufacturer that uses in its product any party manufacture by another is under a duty to make such inspections and tests of the part as a reasonably prudent manufacturer in his business would recognize as necessary to secure a finished product reasonably safe for its intended or foreseeable use. That duty may exist even 1454318v1 44070.0001 106 though the part was obtained from a reputable manufacturer. [R. 4066.] The language was drawn directly form PJI 2:125A, and the Drafters’ usage notes expressly state that it is to be employed “if the defendant is a maker of a product containing assembled component parts or materials.” As explained in the Drafters’ Comment, “[a] manufacturer that uses in its product any component part or material manufactured by another is under a duty to make such inspections and tests of the part or material as a reasonably prudent manufacturer in its business would recognize as necessary to produce a finished product reasonably safe for its intended or normal use.” Comment, N.Y. PJI 2:125A (citations omitted). The charge was warranted in this case, as SMC used other manufacturers’ component parts when it manufactured the post hole digger, and CNH marketed the completed product as its own. Contrary to defendants’ argument, the language did not mislead the jury by conflating a negligence standard with the strict product liability charge. Although the pattern language that the court employed referred to a manufacturer’s obligation to act “as a reasonably prudent manufacturer” would, that instruction is not materially different than the products liability charge’s incorporation of a “reasonable person” standard of care. See N.Y. PJI 2:120. Indeed, the Court of Appeals has now recognized that there is no material distinction between a strict products liability “defective design” claim and a common-law claim for negligent design. Adams v. 1454318v1 44070.0001 107 Genie Indus., Inc., 14 N.Y.3d at 543 (citations omitted). “[T]he standards in Voss apply to both,” the Court held. Id. Finally, there is no merit to defendants’ assertion that the trial court failed to advise the jury that it was to assess the reasonableness of the post hole digger’s design at the time it was manufactured and sold. The court expressly stated that the jurors were to consider whether the machine was defectively designed “at the time [it] was marketed” (R. 4067). 1454318v1 44070.0001 108 1454318v1 44070.0001 109 CONCLUSION Supreme Court and the Appellate Division correctly held that CNH and Niagara Frontier were not entitled to judgment as a matter of law under CPLR 3212(b), 4401, and 4404(a). Furthermore, the jury’s verdict was reported on a proper verdict sheet and was predicated on properly admitted, legally sufficient evidence that was duly considered in light of an appropriate charge. The Court of Appeals should therefore affirm the Appellate Division’s Order entered November 16, 2012, which affirmed the trial court’s Judgment entered September 30, 2011. Dated: Buffalo, New York August 15, 2013 Respectfully submitted, LIPSITZ GREEN SCIME CAMBRIA LLP By: s/John A. Collins JOHN A. COLLINS Attorneys for Plaintiffs-Respondents Office and P.O. Address 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 Telephone: (716) 849-1333 Facsimile: (716) 855-1580 APPENDIX . To be argue ,:! by: JAMES M. MALOY, ESQ. Estimated time of argument: 15 Minutes Vie State of Priv pork 6.uprente Court Rppettatt ;Ellington fourtb ?Department STEVEN L. MOORE, Plaintiff-Respondem, DEERE & COMPANY and GOODRIDGE FARM SUPPLY, INC., fendants-..4ppellants. DEERE & COMPANY, Third-Party Plain VS. DAVID BARRIE, RICHARD BARIE and ROBERT BARIE d/b/a LOR-ROB D URY FARM s/h/a/ DAVID BALRIE, RICHARD BARIE, ROBERT BARIE AND ROBERT BARIE FAMILY BENEFIT TRUST d/b/a LOR-ROB DAIRY FARM and D & D FARMS, Third-Party De endarzts. BRIEF ON BEHALF OF PLAINTIFF-RESPONDENT The Law Offices Of JAMES J. MORAN Attorney.s for Phintiff-Respondent 8685 Sheridan Drive Williamsville, New York 14221 Telephone: (716) 634-7950 JAMES M. MALOY, ESQ., Of Counsel APP-1 FACTUAL BACKGROUND On October 10, 1986, Steve Moore, then 16 years old, was em- ployed as a farm hand by the third-party defendant, Lor-Rob Dairy Farms. On that day, Steve was transporting corn silage from a field on the farm to an area of the farm known as the pit silo area, where the corn was unloaded. To do this, Steve was operating a John Deere model 4020 tractor and a John Deere model 125 chuck wagon. The tractor was used to pull the wagon loaded with corn to the pit silo area. There, the unloading of the wagon was accom- plished by connecting the wagon to the tractor to enable the power generated by the tractor to operate the wagon's unloading mecha- nism. This connection was accomplished by attaching the wagon's power take-off (PTO) shaft to the tractor's PTO, located at the rear of the tractor. Once this connection was made, power from the tractor's engine could be routed to the tractor's PTO causing the wagon's PTO shaft to rotate and operate the unloading mechanism. The only control designed to direct and regulate the flow of the tractor's engine power to the PTO is located forward and to the right of the operator as he is seated in the tractor's driver seat. Just prior to the accident, Steve had stopped the tractor at the pit silo area and had connected the wagon's PTO driveline to the tractor's PTO shaft. He then climbed into the tractor's driver seat and engaged the power to the tractor's PTO using the PTO le- ver. He set the tractor's controls so as to cause the wagon's PTO driveline to rotate at 500-600 RPM's. R. 77) .After about one minute, when the corn began to flow out of wagon, he increased- the RPM's to appro> mately 1000-1500, (R, He then slowly moved the tractor and .gon rd .abOut 10 feet while the corn was unl t_he APP-2 The plaintiff' only claim in this case is that the was defective because its design did not incorporate a "k switch" located near the tractor's PTO shaft which wouJ ground in the pit area. This took approximately 8 minutes. (R. 81) He then slowed the PTC, to about 800 RPM's, dismounted the tractor, walked to the wagon, adjusted the speed of the wagon's unloading mechanism, turned and took two steps toward the tractor when he slipped on a pile of corn and fell forward. (R. 81) He reached out to stop his fall and his right hand glove came in contact with the rotating PTO shaft. Part of a shield which covered the PTO shaft of the wagon had been previously damaged and removed. R. 45- 47) The sequence and timing of the events whi.11 followed Steve's glove contacting the shaft are crucial to the proper understanding of the plaintiff's claim. First, Steve's right glove contacted the shaft, then his coat became entangled in it; the rotating shaft then started ripping his sleeve off and his arm was pulled into the shaft. (R. 86-92) At that point, he was kicking with his feet and hitting with his left hand at the back of the tractor. His body was then pulled or flipped around the rotating PTO shaft., He re- members going under the shaft a couple of times" (R. 92) before he lost consciousness when his head struck the tongue on the wagon. He estimates that from the time he made contact with the PTO, shaft until his employer, Mr. Bane, disengaged the power to the tractor's PTO was "about 31/2 to 5 minutes." (R. 85) ARGUMENT THE FACTS OF THIS CASE DO NOT BRING IT WITHIN THE "SUBSEQUENT MODIFICATION" RULE OF ROBINSON V. REED-PRENTICE son located behind the tractor o immediately disenqage APP-3 power to the PTO shaft in an emergency by activating the switche This,design defect was a cause of Steven Moore's injuries. In support of its Motion for Summary Judgment below, Deere submitted an affidavit of Wendell Van Syoc an engineer employed by Deere. Nowhere in that affidavit does he address the issue of the design defect claimed in this lawsuit, i.e., the absence of a kill switch on the tractor. Instead, Appellants argue that the proximate cause of Steve's injuries was the removal his employer of a safety shield from the wagon's PTO drivelin , and that the removal of this shield con- stitutes a "subsequent modification" sufficient to relieve Appel- lants of liability. The appellants ask this Court to find that this case comes squarely within the rule of Robinson v. Reed-Prentice, 49 NY2d 471 (1980) and later cases applying that rule, including Frey v. Rockford Safety Equipment Company, 154 App.Div.2d 899 (4th Depit 1989) and Aviles v. Eagle Picher Corp., 167 App.Div.2d 495 (2d Dep't 1990). The Robinson line of cases essentially establish a rule that operates to relieve manufacturers of liability where the product in question undergoes a subsequent modification by someone other than the manufacturer which substantially alters the product and s the proximate cause of plaintiff's injuries. However, is clear that the removal of the damaged saf& shield from the wagon is not the kind of "modification" contemplat- ed by the Robinson rule. In fact, the removal by Lor-Rob of the accidentally-damaged shield from the wagon is not a "modification" at all in the Robinson sense. To the extent that th e of the wagon is deemed re1evaL to the plaintiff's t , s APP-4 Exhibit B—Affidavit of Sherwood B. Menkes STATE NEW YORK SUPREME COURT COUNTY CF GENESEE STEVEN L. MOORE Plaintiff AFFIDAVIT Index No. 40886 DEERE c COMPANY GOODRIDGE FARM SUPPLY, INC Defendants DEERE & COMPANY Third Party Plaintiff DAVID BARIE, RICHARD BARIE and ROBERT BARIE d/b/a LOR-ROB• DAIRY FARM s/h/a DAVID BARIE, RICHARD.-BARIE -rOBERT BARIE AND ROBERT BARIE FAMILY-- BENEFIT TRUST d/b/a LOR-ROB DAIRY FARM ond D c D FARMS Third PaLty Defendants SHERWOOD B. MENKES, being duly sworn, Poses and says: am a . professional engineer licensedthe State of New or and the State of New Jersey, and am a professor of mechanical i^g , at the City Collegeof the City University of New York. I make this affidavit opposition to the motion of the defendant, Deere & Company, for summary judgment. am familiar wit actor Model amd tne Deere silage wagon Model 125 inVo ved in this case. am an witn the sian of stmoar tr actors .-4 t: manufact urers other than Dee re Company '71e aonen 94 Exhibit B Affidavit of Sherwood B. Menkes have reviewed the Affidavit of Wendell Van Syoc and clear :hat it does not addres ue of the defective design of the " del 4020 tractor. I am familiar with the facts or accident herein. have reviewed the depositions in this case. I have viewed the photographs which have been marked as exhibits at those deposi- tions. It is clear from my review those depositions and photographs that the tractor involved n this incident was not designed with a kill switch located in close proximity to the PTO: 8. At and prior to the date of this accident, it was within the state-of-the-art in the farm equipment manufacturing business to design into tractor's similar to the one involved in this incident, kill switches in close proximity to the PTO. In fact, other manufacturers had specifically designed kill switches in close proximity to PTOs on similar tractors years prior to the happening of this accident. I am aware that such a kill switch was desi,led and incorporated on a tractor manufactured by International Harvester. In my opinion the John Deere tractor Model 4020 was defective in that its design did not include a kill switch Located in close proximity to the PTO.• -10. The failure of Deere and Company, to incorporate in its design of the Model 4020 -tractor such a kill switch, ,involving known area of danger on the tractor, in my opinion constitutes a des:. ,-4 fect. NOTARY PUBLIC 1I-- B, ,11t , r1kt , s further opinion, that the presence of such'ci switcn wouid have enabled Mr. Moore to immediately disengage the power to the PTO and thus eliminate o substantially reduce the serious. hjuries he suffered. WHEREFORE, your deponent respectfully requests that the motion of Deere & Company for summary judgment be denied, together with whatever further or different relief the Court deems proper. Sherwood B. Menkes worn to before me this day of February, 1992 '1 fl Ho tr 15 Jilintit.6i4:. ew York Supreme Cour Pigt*Airlinerif against., 'P.tiA13(.)tri , :41 .4tid \I l RILANC)1.11A 1 ( 1.)eleriih i n't.- • NIT. RNA F: 1().N AI • (.701-WORAVION, Y P( )i.j( if I PSI rhird Fai iv iv , t1,:i,.; nt 1111:ZI 1 ANIII'11.1., INC .Seeond agiw:.±z (II N" ( 1 riard-Airtv /)efi , I • fl•t: • Brit" for 1 laintif is-Appellants-Kt-1mm evil% dutorney,s. jor 75 Washing -Stfee.1 lolighiceeps1&:: N I 26 I 014)1 454: 32541 111../VCER 1)A 1 Gt.)1,11STI% !,4 (3.1 urasel ichcss. Co Je.x. 1()' — , rr: eanstaTmor..no.mar:" ativeushrtril. szly Rv..1t1 giig 1•49 . 91-04472 APP-8 :StateMent PursUant To (PLR 5531 Pt.eitminarY Statement 'Quos ion Preeented . H ckgrOtind Farts Relevant M . ThiA A6n.nai The detective trailer The acc ident On 06c:ember . 18, 1903 Plaintlf mxtensive (shd permanent head injuriea.. .The .-0 ,1 sPuted. fac .tual 'Record On Summary: Judgment am. conf tictin9 versions. of tho natruct ion- manual Thp contrary oral and written instructions Thu'. disputed decals on the traitor doors The Pocifilon On Summary judgment Arqumont SUMMARY JUDGMENT- SHOULD HAVE .BEEN .DENIED BECAUSE THE - RECORD PRESENTS MATERIAL ISSUES OF. FACT WITH RESPECT TO EAl3ODS WARNI NGS The standard tobe a ppli ed the conIlict.Lng-manuals The.coritrary oral and i4ltten . instrtictiohs The disputed PresPrIce of iiipt.ructi h deceils' POINT. r THE ADEQUACY OF PEABODY 1 , S WARNINGS IS A QUF,.ST I ON OF FACT FOR THE JURY Suck! TIM' SUMMARY JUDGMENT SHOULD HAVE BEEN DEN I,ED the doq down latcheu first 10 The risk of the door open.. The -•ritk of th e- door 8ticklng 12 The risk of .1. 0..q01 • th. do down Litt, c.s.400 • - 1 4:4fl • -BR EF-.017 'PLAINTIF S ApPELLANTS RESPONDENTS - Preliminary tatement - In -t Pr'c")al injury product liab litY act on ) athtiti 4 UWM 0 MIlq" .14t LIL ULLier t 1-.11w aupIeMei putcheau county Belsne 7 S C ) entered April. 3 199 grantor Mammaty. j ugmcnt to defendant Peabody -internattonal Corporation Peabody Opo'n I t mo .t-lort.. :Peabody r.i7.0toppea; 4) f corn s( mut- of tt.10:.:::Order . as .q anted 3urnmry fudgMent to defOndaftt Depem:lab . f, .Repair ( '1 )op :71dab1 ° upon its cross-mOti on. P1 al nt tt f do not . appeal from -44t portion of the order (1 2) 'P1a0Atiffs motTOn in this Court to dismiss PeabodY' cro a ppdi on the ground it is not art aggrieved - party has been he.1 i in - - abeyance and ref err,ed to the bench that wil1 hoax the pp al . nd cTowd-appoal. (Ord6r, July 1; 1991 ) Question P res Ated product 1 (b 111 ty act . on where the ° idence. adduced on :manufauturer summary judgment mot. ton con U I ctt tit (5 pet; -nal.. u r10 • ekl. ..Opt ap4 ad qurcy.. -.of .t tft!... watninqs-( 1./(;7T.I. i.. '0: y . 1 .11 9.1Tfent?: 0bMit 4 rloweT t o ..1,o ..6•• 10 4 qupt.tioh. s. Jr .es..:. , ..(...X.gtoti.nd.-'FACts: . . .:... „.. ...... ...... . . . . ..... [ , 'ovant... ....Thial . ......t.t,p e i ri0 ft; fe ive traile to Wood, fathr of 1. ht with-a •etiti :c tf041.' 126,1 was paip. fd CA Of --Aldo 4T.eeo e oi s wao APP-11 3M be CItY tranSfer tatiOn to -landfill operated by d -fondant - Al 1%40: Landfill', Inc. 326) The trailer plaintiff dr(;)0 was ono o f th'e manufactured by Peabody. and purchased b the City Pouqhkoepste tn 1979, (in.) . The rear of the trailer has two doors :one a 6. the othat:, , Dutch style (IL 65, :327, .3357371.:. .:.1.3.0th.-• are 111n-qed on th :10.:t. • 1 •..UPPer door .- hap. three latches on the 10f..t $ .14 'cont:61 - 400.(i1 on the .:17-AT ;et the t15', Lowet dObr.,. wh, ed ,-pJAint4f I, hag two tat:0es on th& left s de•contr011 ed.. by a... •.. the rear. of •• the .trUck and kdentiOa.j.. to no upper door (15 ..(160.r 121 5,0 . haol.• foul. dog down 141..tche .ti tho boLt. QUL, 4 , 6i, 311) control led, by a lever on the side of the t rai er These "dog down latches had been prey i Ou 'SA disabled on t he t a.L ler that ured plaintiff (16, 347 - 48) so they wcire not bo 1 r 4 ult:10-d ( 320). lhe accident on et ember 18 190!" A.“;.Or P rit lit pOs4 tipped the tranafer trai le- larldtt he opened the up p r door ox the tra ii Without J , fficu 326 ) = Th6 1 oWer door w(,uld. not open .because 0 1 - of he Bide 1 atches as stuck 1 328) . A3 plunti ff pulled an t e door t o frec it, th 1.tun suddenly sprang free ond the door ung and struck hird Jr the hOad 185 09 -32.0.) - = Al Turi . Landfill, this app e j4.n.Ot appear on hses4Mm.at 1 APP 12 Pjjntjtt to.! titfitifrient .-:11 • -.PLalnti t •:f1e:te4 .. m c -)rcqand ku aCch rjt./152 He now haa a punit..'04• 0.pag'0 and bc,ar. on. hii• fo ,- Ohe:e10... (152k e he 911.1 erOd extensive dental ç nourologicat and p ,04,/ I ci I I fl j T I Ikt-44(1 *11. (3 Pum:On0E- Ong M.Pilt - c hrePdcrwn (15 5 3j Frdo December 18, 1985,the c. a of L Idfe n tti Fio.pt.oitipot 1988, p1 .61.fitliff was tr. 4te_d 13. : t fttlei3 . 3t b hopI t ila Inc:4)4111'g une::- peek admisdiOn to liPds° ' River Psychl lc •-(1:010,, OT ( 4' S) In.•• te Lwo and a halt-11At period a tOr: the , acc dont )1alat ft w s of ton -unable to .work, m '4 nq 215 .) dpys C 6) Reroid On Summary :.JUdgplon.t. Tt t 41 rd on th i0. summar.y. 1. 40qMoOt • motl on pr be nta. tflr6(..! -...mettori.:44 pkI1 of f oct with pusOp t o the adequa y of ttlo stT4 t I on and . %.0 rn thgs pr. Ov j dod wi t ii 4, no tro. 11 or. •ThO...1 -9.75.. Vola oh ot thfLpporatiOn manual:vor ua th 79 • V.erglOn,:...eltbet . of wh'ich me41 Aye. • been pro (led tJi the tra tAor tu i I oprat. on Inst ..ec - iton.11. n 1. V 9 T." Ole. if: All er etsb0 . t h is ciontrar7 Y 3 pr os6ntp• of • I ntrucripn„. deca1 n th0 r thoear. iler. The e dence.. pro tered on the :!ildt' on confLtcted on the6e- Sti 14 la fl 3C-711 that, tno motion should not have ru granted APP-13 • the Uitrctton manual cha*1ea Oea ty t he Superintendent of. Sanitation (160) 1 led: that ',1iterature came with the trailers' (364) Dependable i I. ieqod.ly '...upp.Ued. 1 1975: edition of. an "Operation and:: , Mainthance: pahuitt, , '401 141, whIle PO:40ply- alli•Ogod14 Uppeu t 1979 ed.i.:tjc No OM 25 6 7 9 (1I; 1 5 391) I.61 patty could not ay wht.h t the two: vets iortu . ovr .193 In tho 1975 ipanu61 no instritidtiono. • • for 000n4n4 .t46tat 1A.3 11 1'1(1 P.41 (-7I:t494 to be mounted on the ro4ir.; of t he t r IN • 1 - 919''..: ..04ch .•.1 n0.3-...10 33. 6.90- (upper • • • . • •• 0114 A ( lower ta Ligate) axe i and . .i.60:4t intended ioat I on ea c h • taiilgivt :e: • 40c4f00 . :(14)- A. 1:thoUgh..I here are 'Warn trig" and .! . Cou.t. te A f•t.oc In th 19.75' fri:Otituo.: th.ene - cle.• not Addr.egs t h • danqer o be i rig .0.14 [ad• th0.• t he I owe r doo•r .ati:hefi (404.) 4oL do thi- •11:6(r.r.r. at i vt in3tip6ti ono In the. 1q7 5 nuint)01 - ant ti I iny yam 1...11.1p.t roapect •• . :t..:11.6:"1 -.)wer.H...debt (.40 )What 'vei'.e::...auti ...o.01-L! or !!.idar .h..I ru3r.:4 t:Ivat port,4 I n to othet•-p0p4ctn 00-odure! ck1hg the tr I or, pa 'ging the tra Hf or and opening he? upper 06)7:: ( The 979 ianual 1 1lustrate hat tnstrLctlonh and .wa .rhin.q.p to have brn xed to tho.•re3r of . thc trier (32, 34). But the 164er gate opening ,0.444ns. no •:•t,o4rin•ihqs.. clitettzlOnEi ( 2) The • watta ns :•and 'C';#31 .4 t:i 1..abel. t 110 :1.97 matiu 4 APP-14 The d. agtam n the 1979•manua for op ninq t e lo wer qa.te Mf N state s ai 8tep . 4 !-.Release standard . bottom latch . This Td.:140Wed by hla narrative ( 35 ): The de- latches :operate the same as • the ..upp er A0Or (See : Figure:2 . arid should be released - =Arst. Thi a language L..-, identical to the 19.75 versicin 36, 4 t, warnings that the lower door: might spri,..q open (4(15') •lho-:*(„:0htrary oral and writ ten ins t tic t on nhsa f davit in opposition to summary judgment, p la n Li t exp1tned how he had been taught to open the trai. r dobrs 327) : , Was instructed to open the -doors y xrst . . . .901 ng- to . the -s ide of - the trailer and pu 1 1 ing a handle.. which would disengage "dog .dewn" latches - 'holding - the rear bott torn door. I waS - t.hen . . _ tnstruCted - to go to the tear of the trailer and, - ng open. the- top door. and .then - the bottom door _ _ - to . A1 toW the garbage out . P1 a Int I I supervisor, Charles Beatty, he Superintendont ,an it at ion hac so been I nstructed 10 rel ease the latches in th Ot(4 :41pToliontatI ye from the: coMpan .e it 1 Abo pc! dable, h was n6t Sure which (36 .0 63 367-6)), contrast Pau 1 Vitae on behalfo Peabody ave fed based only on fl tflstruction manua that the 9 r pe ing -Ale lower Join were to be doee in the reverhe order: release tnP atches a the .eal ot t aiir then tostde te t ai i er 1:.„0 to do q down -. latches (12, 15 35736) . . . . . al on Paul WiSe, Peabody: s ciime e cm tha t; • the- , weLo no n t4. 70 larts . on the...bac 01 ' t'ihr on ilAW. et, APP-15 door_ cOn Latent . with. t. ,t .197 5 manu-61 1 0, 404 ) In ) oft 4ummary judgment, hoievoT, he said that instruction tccl sh°-uld- have- been af fixed o the. xe r door at the v., i me of manu t ACturo- • Crç1 LncJ to the 1979 manual (34 ., 52). PlOnti1r.6 ore, there were no instructiont, pn mo i1ler,lloor ft tte time o f the accident (328). The ..Decision On S MMilly.Juggpent P a i ritIff a Urged tr inadoquacy of Peabody warni nqs . uPp6.81. 11q . BummarY Judgment (33 1 . 333) . The court df-w-isior ncrod '0110 isaue ( ) 4 f nItn4 . a0e tt) ny.f.)1A i • •subli .eiVOnt. *A41' t,6J41.t to •gpVpilfitl. • t.).1i Rpb:ins. ory 3 clice, 49 NY.2, 47 1 1980 guff* t po NT SUMMAHY JUPGMENT SHOULD HAVE BEEN DEN I ED 8EcAUli-E THE R ECORD PRESENTS MATERIAL I SSUES . _ OF FACT WITH RFSPFCT TO PFA BODY ' MARNINGS The s Lancia rd t. be dP.Pliod 1 fundamen.al that upon application to umMary dqmen 8 Sue finding r'other than sue determibatic 1 1 t h & key - iJ th -3 - . proco.th re Loy e ' A ad t1 4 e uot-ed 1r , , 27 D ( 1P1 t Per) , 4.. 1 man% nt i 3th Century-- Fox 1 ..' Corp... _, 3 NY2d . _ . , ( 957 The proponent of a - sumMary juOgmeht notion must maX6-a.priMa facie . showing_of - entitleMent to - judgMet as a matter of 1i, tende .Lng sufficient. , -0VidePce e liminate any aterial ssues of 'Oct. .. . . . - from ,th... a e(see r uckerman r''' ty ofNew:York, 49 . -4Y2d -551 562 F Sillman t , b .CentUrv -Tox Film. Corp.., 3 195 4). r i uie. to make u,.., showing . r res denial or q -.- regardless- - of the su 6.1c1ehey of the o rv APP-16 •;•::papexs. Matt:0 r :•••of RedemJ1On Chu•r:c:th . ..•:•ot '141::1•112Aills. o . • .. • 649; 0..eptiez Rea1y, 43 AIJ2d 68, 969) • •.. ,.........:: • .............„.......... New •••:Y: 17:k Ain.. V• . C6.n.tler6 4Y2d 85 1 :r very notUtp. , do not u1.4.04••l end to euitini:04;q: 1 • Chfra0d0t,. 45: NY 2d 4 1, . 4 1979: ) • • • •(t1irtInq mirnii1 • e440106t bel ow; ha. t :1( 1.:7 i 4 rOar MQ6nt.ed instruct ion d9c04 P must have Oeen the on ent wit the :traill:1 ,0r tit;o: record 4.4.4" ) Tj tad 1q1te eiw I nil Ih 75 manUdI 14,31)1 ts t ro pnc1s 0.ti-ossthi wIdth. the trail or ' 40.4.). The tAi lgat e dr."11Wifig I. the 19 79 man4a I clop - wo- ane s aqr of3 the wAdt h f the . t r- a l ha 10 (3J5)... (7.1. LtTO: 19 i5 tthi ttaiI I cOn04 .0t6ht• or , . t I Ike 1 y t hftt he I 1 15 mnu 1 1 the nn p.t cv1 ded v.,/ith the.. Al:..ht-.1 1 oast th0 t. 1 on of .W1I.(7h Manua t.•wat3a t u ii y .prQv.t.(ted I n.( 6.1,10)6T 04(j1te.F1 t .Thin di.*p6te. III ma t .04(440t he t 1: •1 he. we n I irvJ 1 nAu t ifl co.1114ii I4ftuoIn this l- etbody s pec614At L6b0 t I Lor 1,.r.ary.: r.tf.:!riplve or. '13um 11 y pidqrnPn purpos0 I PO4in - 41.(0Prit;, ..• :5.E34'.th .que5t..16a.6 'which..:Manual•had 44.04 -P.t„bvid.0 ,itI taody count .04. e •y. point ing. to An approV'a te.:: Of p 1 2 „ • ,.... : .. ... .'.br t119 .1....owv.I.:. gtto 1.-in ...tuttion decA . ( ...5 .3.04t).90 1 riirrt .1liaf• -4 " v7:if04.004 11. ten.( .1- t thAS de Of if rh.. j9 ..... 1 04P.W741 ''''' , It uC when '• the tx-4 let t. 0a.r.,.was. mar41. 40.tur4 ...:.. : • • . ,.• APP-17 4 8 '3OcI ii - : .,M4y 1979 shippc In August 1 q79 :Trto r00(2)1A:Hcoe13:: , rot fiupportUri roici oP o Opp r( e dra1 dped not::: ilopO it wa imrnedirr J„ 1Corpo.t."6t voxy: PP4POOY P : 4rod: ) 0:v ctorix tO soppOr t etetid t.) .e 'c,701.10.iuded f r QM th0A dt93 that Me 19 79. tnon.44:1- .was .on t with rht trlfl f' No )vIden.e tht 1.8 6:t fr c t hc! . rl the 1915 ma riu . 1. ts _ow I I. 0'1 o : )171d: -1979: inL1yiui1 14 not, U 1 t 1 ont le "975 rndnud I wit-p px o v I 0 d It t nvx f or 0 (414.Q..!31 JO, I .11( t hc t Wo troriue.11. •6 dl v I- 4 J0 fl ' i q -ii r 00.#,(01 Win t U I 1 y .proi.,40ed tfifiue pt it wall twolt..ot ro ror tu qt.ant i u.rniniry udgmen ..:Tho.,:(7-011.t .:ra.c.v••01- 11 -.-41114:: . .. . - ... .. w.rtt t..-eiri.. Illat.... ,v1Ict ons • - ...., • ... • c.nort t 04 tIit.....t. ..tno !.!..i.t:ipc:r..1:11 _,:r,.111dor.it... 0 %4iti tl. ibt.i ” ;e.iiC . i r ed• .: . 11- 4 41 t';16,4•,iiwit now I ot-5.'2,..ta;.1;e. -.. the:t 1.74 .ns fe..r. re,. ij1 e r , rt'l.p.r...o•si n La • .U. .c..flpt• .. It ?Pe • t4.0 or po.rionoiloro ( ...1(i.1: - i 6.2 ) Ito t.:. ,E-ft.-3t_lf I :4 t h.Tit , to-.:t ..W.a 6 tnOTu :01)0117;0:jilt v= to u6hook Ivor on the 410e of Cho 1 t. :i 10- t o 1 . )aso the doq down lat....cher.1, then return to thc:." 1 - 0a r• øf :.t h .0 I 4 1 an.c.I no 5 t IC 1 iite:ft0f) 367 '. 68 ) . Th I 1 uh !_::: iy .. t.0 both 1 nt ruct n nia lima !,411::irch d:1 r- ho ,..,; id :1itt -4-ir . !!.4hoi (1 . be relib. , a pe :, t at.t110:- ear rt .0-to . ra I -..1- r , : .(') I old:od by trio: dOrj down Lai.t.h0 : .!. :xin .t...-0.116.d fectrA 't: he sId.* ' -Or 36 405 ) rnphas is ad( •re ut; 1eat tetiiiiony . 'Pe69.-dy expo rt rc1y• rcx.itct wntt, :he rfo. fittal .• cotained hi.E did not d.LrCVE • Be. APP-18 At PeO.t it creatoci a c:redibilit 4oLle at cannot be retiolvp. ( 1 3116:maryi judgment . . , C42.. in Ass ocA ates v Globe Mfg - 34 NY 2( •• q.-couTf 0e1 .9.w.•...44por ed- his dl 3U it y b'etwen. : b(:)...cly 0 .m4.:tiir1iiTs 4 :...„: ...„ ,.. ,.. . .. CTA41..J: uoriclirefiRi. w:i tti.o.ii• y•!•00.01,'i- a iii-i .nnv- 9- • th,-iti th4.i. r*...-Ar:-.• e: 4 t y i, 1 L'. . ( m L ,, .e- . ■ i-i 1 .6=1At I,-.f.l....1 ....thi.td . .unnUirtheted. paragraph): rho re,COt4: ...C .:.1.0.a..i..: ........,. ,.... .,.. .. ...,........ th..4)..t. :1. 1.14. .011y had :461E3 trutt ed p.I.a.inti.:If a s• t had 01:5 i?.. .. . . • • . earl... fl by • .t.r.t. r reitt i L 'iho t i1 ned gOatty 9 ). trr,i d l upu ted e, )ence ty.ci 0-17: deCais wr 1.tt n two manuals) and its oral instruction' rho thoug itli-gtxtact Poabody own expert, Paul Wise init. ial 1.y c 4 f, riled there :Woro TIO f.hist„.r. (MB on the roar of the trail r with - respect to opening t he 0.0T 0 , 4Q4) I y t he t Ime the tiuuma ry j udgme n 1 1110 t I on was Rid do , ).( W dt4 3 i rninj the tntructions it Led in the 1979 manua ihou I( e boon eI ft I xed t all r "tC)4.44 .1V-il was...b6.6.0d sol ely on the .1979 manual . • 10M0113 et tef.e.l. vor, whettmr th,, rAiiud i was. actual .. t0y1lod w :.ho 1 lior r4rincl • he deti in.j rid or 'cird FvenI I tuid boon., ) '41.1v .i, iL Ion 01 instruct .lon decal' 00S not prove they vmre t I •SInce p1 i nt. I f•:•swor0 the'rQ o such n he t r4:d 1213), thel: proience or ahence is a. atiipu ted, a TP t I I I I :.i6(0.1.ttI 1 .q. • t h0 •.. 6P41. .f..a.11 o f uramar APP-19 POINT t THE ADEQUACY--OF PEABODY'S-WARNINGS . . . ' .A-QuE-STQN -0E-.F.AC.T . V9PIR-THE: . j 11 .YY:SuCH THAT .§.11Mtl#RY JUDGMENT SHOULD HAVE SEEN DENIED, rt .400*.7f y cAse 6110g1ng eqj,ure ,) warn r Lo ..a4o.clita'e4: - .01. - tA6•w4TTII.40 given . n all but the.••thOi 1Pff)1 00'gf-f4 ..(= be a:t: 1 :e11.7ter.' -ightfaC6 Inc - .,102. AN.4 642,642 ..19e4)• •Acc TO AD2 c1 .168 (AO', alf 0,50. ( 0.9 In cOO1 y v t.•3rter Wall ace L Inc..• :i.02 4:L2:o 64 itho. D ' i I n I pari_t1 Department reve. t...sed. o tOrmaT AiqOP.(140,.....:MaP 14.1A.qpTer 11 fit ii u re to.-warin ..:KorwdIroc.t4Ohs.....•.16r-Aheri .tOper •-• 1:11Adeq041.J'i') (1 a t 6 4 L.omphas4 ,.c. add..,1(11 H •Tho: - rialt- 01-00L, hitiq , the dOI cOwn Intch6s. fIrSt- PvabOdY• tK.N.. 1.1. 0 0• no w rning that the dog..doWn.-I atchesracii, olwr. tvd• . Thp stronqes.t 11% n(]tUqC I n the manual . hat lotchos 'slould be released first" (15, 405 tPM010Sig I s no we Of the consequences Of failing to heed thi s. :This inadequate 4s mttter - la The risk of the door- In the case at bar, Peabody never w rned plain iff or h -employer of the specific risc that th l or door could spvi the latches here rel sed in the rever e order from tha APP 20 t e _flUnU1 q Noo of .th lower gate openicj instructi3n 1 the manut s mentioned this spectfic tisk (35, 404 -40 ) Nore th #10d t. b.6 on th rear I. (hut neve rovon :n :t.1714 L B k: ( 34 , 2 ): -T:1)0 IS no i tZflot 110 : , t) "trlIct if-41 ncLud0J-tlit4 fWecific 1110. GOY - 10nguago oven Suagesting the ill it y of a .m-1 /1,4ine4. - sdoc:Ir 1 t 3 •can ho fort vd optr -..7.fictd....0.y:....oxpahs I ori - ..o C.S.60 v r Ion .:The•j0wor.-: i40.s. 1:eop. I nipor t of t h I 0, 1 ortIqu4e.lo Is t hat t hi hot t om doc.)r woo 1 d not bo(Aufl 0 01 t he t e nt t I 1- 11-.•! A :4 rifqr: cItizItt I fl t 1 f t colicor r• d In t h 1 I aria LyS,i ,( 4 jh I t onc I ur ion woo Id follow whpthor or not.the dOq down 1 1 che 4t4hbl , . n o It heir .0 v 0111. ..:0.•ta in IWCpr.donc'e • with POcibotiy s I 0t3t:CA:W I tonq 4641d a 1way heie 1.2 . i-On at th.f" . fe:Ar of tho trhit.o . WhenoyOt thlp I owo r late wi I u liv ohlAtti;:hod, riSk...•of 1 ho tioC. t I c uld: •(1. 4 • .7 (.1.c..:).4 riot_ (.lbvieIte P,papody....s. duty to warn J. h t. t'!Ab94. - reitf-e.d t tut Ion that. qa o 11s6 t o that risX, Peabodv oI :inctutI ons specifically caIed tor the operater..•tb be...at the . - on of Ut tt 10t. after oeninq t h ciug down 16:t nes. fIrrst. Te.:abody lro did not warn of the-tH.sk of dt.ablirj tho latcheb (see infre)..„ tihih A... 180 1 aUlt0 .1 e tb4.. Teat . of•th6 411er . . . . . . to unlatch pr.111(4 (Tor) APP-21 Pe0 1 10(Y d d tvtwari that the direr' result foLlowInt t igtruct 018 ; of- drsabl 1Pg—the d down latches be- sprl nq i ng r Plaintiff- knew.- --of thisrisk: but. di bot know why..the t.e( Since It w s•-becau e of Peabody s faijure t o n . )r 0-St=elle:t. p riipterl -y,Peabody breached its duty Put another waY, Oanufacl:turer-. qanno misinst Uct an ultimate iv.svr , theb hope tht - the and I:60'ns. to .. avoid the r4Sk created ) W.1 .:44bfOrtion 1(1409 .(4y.•.j:40qt,04 •oWn Manuals in ins.rU(..tnci . usors cf . t i i (-'4. Oltf i r 1 1 tr 4 hod a duty to • warn ...81.) t I (.7.41,L y tr hat t 1 ii k thiit the oWe.r door . ot.111. (.4. jT no • .1"1. (.w4. • Ufl 1 t h tflq: h r al ly, in the manuals or oh the trail t th.rehy rais.ing jury ques t tob a to ti10:A40(1U4Cyj 01 iti warnings.. SuMmaryj idgMbj.:sh9Uld h buk.t.,11 y. Ca rtoz Via 11 ace Inc supra -; 102 AD2 The tisk :Of .tho door Jaicklnl Nor did Poabody anywhere warn of the puss lb I Ii t.y that the deora Iniqht total 1 r t all to ,orwri as happened -here 4 17 ) Warn tnqs w t th ros:pect t pd 1 ng on the doors or of applying. bulldozco,r prossuro as - Pl a intl ftstarted to do here - (184-89 were net p ovided In the manuals or orally ( 3f5) . The t isk of - disabling the d9g. own-. latches• Peabody admitted it did . not - marn against the :danger of disablin he dog down; latches (395) which ee des gned to keep the operat r -clear of the -rear - of- the trai when 'ow door.was opened (39 APP-22 There Qat.)• no-sp h warning on the tZ'ailet• ItseLf . Peabody - . knew that these transfer tratlet.s f 1PlUr1t1y t )u)C AMO uL t v.4.1) ITO D.RInc/.- -..emptie0: . . . . . . . landfills (755). .1t also know that t..ho tra .11.ers•w r•.6f- ten moved bi beinq pu hed frOm behind e.cOgn -itton-( f this foreseeahli misuse of f t!'l product odbody .4o0 •PPS:.14 st 4.t.tac11..' a-push .p1ato to. the te.t.07•:••of t - a 1 1 o c). t c. .(15 77 . ) But 1?..t15.40o0y nivr to 1 1 Itt.ry, thift v.rfi.. i.1:1•,0E).): .1.3 opt Ion Or 1 . .t.S.it .sed. {,) tj'h 0.! f•A :1421,:tfi { • 75 6 5•71 I nt1 , Pc abtdy xpt' t h r T I i 1)1,Vi An ,n- isrt.i ..t.it:4:■0 1 . 4 . 4 I::.rior . 0 .! eft1(7 ..•fi I uo. )w rn t t'. 110.,• • ) ; ri .oc....4n r;- I k r.e y p.t.rf.r. 11.1 11u I t111 101- (lilt if t•••• t“.. .11Iutt • oroa.kyo:1.6143 miiiuso• I t.,•ho• 1. • .*.ti a A e.11. :.11). i.7)11 ) f I ic t • th-f.i.!-.. : :.1(..r•r: m A n Cs. brorAkie RL08 A 1n 24 1.'0)-2. 1 1, Q, 41.1: Wel) ' 1 9. tf,6 .1( qt x• V.1:a(::' . ..1•1 1 • 1 A1). 2. .0 94 1 4:t h 1: 9 9 ()•• rt r i CA:tv . In I( 1 0.1 r .1., t IS) AD . .c1 5. 0 1 (11 t 1. ) 19'901 . ; . Conc 111 .1 ion The order appealed t in shou 1d bit-ft r ev i rn d and t no ma t. remanded. for trial Dated:. - PO49hk4ePsiov New York . 0c t obe .:.-- 25, 1 -991 Respectful v uOmitted GELLERT & CUTLER P Attr)rneYs for P1inL1f ls Appel lahtg- Respondents Terry D. _Horner 'Paul Of API"-23