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Dimaria v. Komatsu Forklift U.S.A., Inc.

United States District Court, E.D. New York
Jun 20, 2003
CV 02 589 (RJD) (E.D.N.Y. Jun. 20, 2003)


CV 02 589 (RJD)

June 20, 2003


This is a motion for summary judgment. At issue is whether the manufacturer, lessor and/or lessee of a forklift are liable in strict products liability or negligence for failing to order and install various safety devices for a forklift which injured plaintiff while he was working at an airport warehouse. For the reasons that follow, summary judgment is granted with respect to defendant Komatsu, and is denied with respect to Nippon and RCS.


On August 24, 1999, a forklift being operated by Denston Brisset struck and injured plaintiff Leonard DiMaria. The accident occurred in Building 79, the Nippon Cargo Airlines ("Nippon" or "NCA") facility at JFK International Airport. Mr. DiMaria had been shrink-wrapping a load on a pallet in the loading dock area, and Mr. Brisset, who was operating a Komatsu 5,000 pound forklift, had been placing a loaded pallet on the floor. Mr. DiMaria's foot was injured by the right rear wheel of the forklift truck. Both the forklift driver and Mr. DiMaria were employees of Worldwide Flight Services, a company which performed the warehouse "ground handling" work for Nippon in their cargo facility at JFK. (RCS letter, Exhibit D, Fernandez Tr. 10).

The precise circumstances of the accident are unclear. According to Mr. DiMaria, he was squatting down and tying a pallet, and as he was in process of standing up, he felt the impact of the forklift hitting him from behind. (DiMaria Tr. 57.) Mr. Brisset testified, however, that the forklift was stationary at the time of the accident: he was removing a skid from the pallet, and when he "turn[ed] the forklift steering wheel, [he] heard Mr. DiMaria cry, `Whoa, my foot.'" (Brisset Tr. 32.) It is also disputed whether the subject forklift had rear-view mirror or backup strobe lights. What is undisputed, however, is that the forklift in question did not have an audible back-up alarm. As Nippon's operations supervisor at JFK, James Fernandez testified, Nippon only ordered backup alarms for forklifts over 30,000 pounds. (Fernandez Tr. 24-25.) Moreover, he testified that Nippon opted not to install audible backup alarms in the smaller forklifts because "having eighteen forklifts in the warehouse, if they are all equipped with a backup alarm, it would be hard for everyone to work." (Fernandez Tr. 35-36.)

The subject forklift was leased by defendant Nippon from co-defendant RCS Electronic Equipment Corp. ("RCS"), which had purchased the forklift from co-defendant manufacturer, Komatsu. RCS and Nippon also had a maintenance agreement covering 18 forklifts, including the one involved in the accident.


A party moving for summary judgment is entitled to judgment as a matter of law if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The burden to show that no genuine issue of material fact exists lies with the moving party, with all ambiguities resolved, and all inferences drawn, in favor of the non-moving party. Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). When the evidence is so minimal that no rational juror could find in favor of the non-moving party, the Court should grant summary judgment. Id. at 1224.

All three defendants seek summary judgment: Komatsu, the manufacturer of the forklift in question; RCS, a company that purchased the forklift from Komatsu, leased the forklift to Nippon and contracted to repair and maintain the forklift; and Nippon, the lessee of the forklift, which allowed Mr. DiMaria's employer, Worldwide Freight, to utilize the forklift. Since there are different legal questions with respect to each defendant, we will address each party separately.

A. Komatsu: The Forklift Manufacturer

Plaintiff asserts that there are material issues of fact as to whether or not defendant Komatsu is liable under a strict products/defective design theory for failing to incorporate a back-up alarm, rear-view device, swiveling seat or alternative safety device in the forklift that it designed, manufactured and put into the stream of commerce. According to plaintiff's expert, Steven Kane, it is a "commonly-accepted safety standard" that an employer not use any moving vehicle with an obstructed rear view unless the vehicle has an audible reverse signal or there is an employee outside of the vehicle monitoring the back-up. Kane opines that Komatsu should have built a back-up alarm into the forklift, and should have interlocked this alarm with the operation of the forklift so that the forklift would be inoperable if the alarm were disabled. Plaintiff relies on Rosado v. Proctor Schwartz, 484 N.E.2d 1354 (N.Y. 1985), for the proposition that the manufacturer, not the buyer, is the best position to guard against the dangers inherent in a product.

Defendant Komatsu argues that safety devices such as back-up alarms and rear-view mirrors were options that it offered, but that Nippon opted not to have them installed. Komatsu points to the deposition testimony of Nippon freight services manager Tomoko Yamazaki and Nippon operations supervisor, James Fernandez, who both testified that Nippon chose not to request back-up alarms in the forklift in question and in all forklifts under 30,000 pounds. As they testified, they made this choice because they felt that the din of having 18 forklifts with backup alarms in the warehouse, in addition to the significant ambient noise created by the surrounding indoor and outdoor traffic, would render the backup alarms effectively useless. (Yamazaki Tr. 17; Fernandez Tr. 24-25, 42). Komatsu further maintains that a manufacturer cannot be held liable under a design defect theory where a worker is injured due to the absence of optional safety equipment where the purchaser was aware of its availability but opted not to purchase it. See Geddes v. Crown Equip. Corp., 709 N.Y.S.2d 770, 273 A.D.2d 904 (N.Y. A.D. 2000); Patane v. Thompson Johnson Equip. Co., 649 N.Y.S.2d 547, 233 A.D.2d 905 (N.Y.App.Div. 1996). Moreover, it cites the report of its expert, John Johnson, which notes without contradiction that the forklift was in proper working condition and complied with all of the applicable standards for forklifts at the time of the accident.

Under New York law, a defectively designed product is "one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction in to the stream of commerce." Voss v. Black Decker Mfg. Co., 450 N.E.2d 204, 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398 (N.Y. 1983) (internal quotations omitted). While generally, a manufacturer is considered to be "in the superior position to discover any design defects and alter the design before making the product available to the public," Voss, id., a more recent case, Scarangella v. Thomas Built Buses, Inc., 717 N.E.2d 679, 93 N.Y.2d 655, 695 N.Y.S.2d 520 (N.Y. 1999), provides a different standard where the manufacturer offers optional safety devices but the buyer opts not to purchase them. AsScarangella explains:

The product is not defective where the evidence and reasonable inferences therefrom show that: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product. In such a case, the buyer, not the manufacturer, is in the superior position to make the risk-utility assessment, and a well-considered decision by the buyer to dispense with the optional safety equipment will excuse the manufacturer from liability.
Scarangella, 717 N.E.2d at 683.

Applying this test to the case at hand, this Court concludes that plaintiff has failed to make a prima facie case that the lack of a back-up alarm or other backup safety devices on the forklift was a design defect. While there may be a question of fact as to whether or not the forklift in question was equipped with a rear-view mirror at the time of the accident, it is nonetheless clear that the "buyer" or in our case, the lessor and lessee of the forklift, RCS and Nippon, were sophisticated businesses with experience in the procurement and operation of forklifts (e.g., Nippon leased 18 forklifts from RCS for use in its warehouse and had been leasing them for at least five years), were aware of the safety options that were available for the subject forklift, considered whether or not to order safety devices such as the backup alarm, concluded that not having backup alarms might in fact be safer than having them in their specific work environment (e.g., a noisy warehouse), and therefore opted not to request backup alarms for their smaller forklifts. Thus the forklift in question, as purchased by RCS and leased by Nippon, was, as in Scarangella, "in the exact condition contemplated and selected by [the buyer] at the time of purchase." Scarangella, id.

Secondly, plaintiff has not demonstrated that in all normal circumstances, the absence of a backup alarm or other safety devices on a forklift is unreasonably dangerous. Indeed, sophisticated users such as Nippon and RCS determined that for their specific work environment, it would be safer not to have backup alarms on their forklifts. Additionally, the testimony of plaintiff's expert on commonly accepted safety standards is insufficient to create a factual question on this issue. Indeed, the standards plaintiff's expert cites merely state that:

No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:
(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or;
(ii) The vehicle is backed up only when an observer signals that it is safe to do so.
29 C.F.R. § 1926.601, OSHA, Subpart O-Motor Vehicles, Mechanized Equipment and Marine Operations (emphasis added).

To begin, there is no evidence that there was an "obstructed view" to the rear of the forklift. Indeed, Komatsu's expert, John Johnson, states to the contrary in his inspection report of the subject forklift: "The operator's compartment and the controls allow the operator to turn to look rearward, providing the operator visibility of the travel path. The operator can see a person behind the lift truck." (Johnson Report at 2.) Moreover, these standards fail to say anything about the commonly-accepted safety standards for how a forklift should be manufactured — indeed, they are geared to the actions of employers, not manufacturers. Furthermore, even if they did apply to manufacturers, such "standards" cannot overcome the fact that a "backup warning alarm is not mandated by any Federal or State law, rule or regulation." Patane v. Thompson Johnson Equip. Co., 649 N.Y.S.2d 547, 233 A.D.2d 905, 906 (N.Y. A.D. 1996); see also Geddes v. Crown Equipment Corp., 709 N.Y.S.2d 770, 273 A.D.2d 904. Moreover, defendants have submitted uncontroverted evidence to prove that the forklift in question had a Port Authority license plate, demonstrating that it passed all of its safety inspections. The sum total of this evidence simply does not create a factual issue about whether the absence of a backup alarm in all circumstances would be unreasonably dangerous; it conclusively proves that it is not.

Lastly, Komatsu has demonstrated that Nippon and RCS were best able to balance the benefits and dangers of the various safety devices. Indeed, only they, not Komatsu, knew the conditions of Building 79, how the forklifts would be used there, and how the workers who utilized the forklifts would be trained. While plaintiff attempts to distinguish this case from Scarangella by arguing that in Scarangella, the buses in question were not frequently put into reverse and did not encounter constant flows of pedestrian traffic, as do the forklifts in this case, this distinction does not change the fact that such a risk-benefit calculus was something that Nippon and RCS were in a superior position to assess. Indeed, plaintiff's citation of the facts of Scarangella only serves to highlight that the conditions of a worksite and thus the necessity for a safety device like back-up alarms on a forklift may vary, thus putting the employer or user in a better position to gauge whether to purchase them or not. See Rosado v. Proctor Schwartz, Inc., 484 N.E.2d at 1357 (1985) (holding that the manufacturer is in the best position to know the dangers inherent in a product only where the dangers do not vary depending on the jobsite). Accordingly, Komatsu's motion for summary judgment is granted, and all of plaintiff's claims against Komatsu and its defective design claims against the other two defendants are dismissed.

B. The Buyer/Lessee: Nippon

Defendant Nippon contends that plaintiff's negligence claims should also be dismissed because there are no triable issues of fact that it is liable for a dangerous condition on property in Building 79. Nippon cites a number of cases which hold that to be held liable for a dangerous condition on property, a party must have both a duty to maintain an area as well as sufficient notice of a dangerous or defective condition that would allow the party to remedy the condition. See Raffile v. Tower Air, Inc., 695 N.Y.S.2d 116, 264 A.D.2d 721 (N.Y.App.Div. 1999); Gordon v. American Museum of Natural History, 501 N.Y.2d 646, 492 N.E.2d 774 (1986); Ouachtouki v. Neerg Second Corp., 686 N.Y.S.2d 790, 259 A.D.2d 604 (N.Y.App.Div. 1999). Nippon first argues that there was no dangerous condition to begin with on the property because the subject forklift was not defective. Furthermore, Nippon asserts that even if there was a dangerous condition, since RCS was responsible for maintenance of the forklifts, "Nippon could have no notice of a dangerous condition." (Nippon Letter Brief at 6.) Lastly, Nippon argues that it is undisputed that none of its employees were operating the forklift at the time of the accident and that it was in no way responsible for the training of Worldwide's employees in operating forklifts. Thus, Nippon asserts, it cannot be held liable in negligence for the accident.

The Court finds Nippon's arguments unpersuasive. To begin, all of the cases it cites concern a property owner's negligence with respect to dangerous conditions on property, such as wet floors and stairs on which individuals had slipped or lead paint in a property's walls. The instant case, however, does not concern the negligence of a landowner with respect to a hazard on land but rather, the potential negligence of a lessee of equipment in its decision to forego certain optional safety features. Thus, the case is more akin to the case that plaintiff cites,Vliet v. Crowley Foods, Inc., 693 N.Y.S.2d 338, 339-40, 263 A.D.2d 941, 942 (N.Y.App.Div. 1999), in which a food company delivered dangerously-stacked milk crates to a store which later injured the plaintiff. In that case, the Court found the defendant "under a duty not to create a dangerous condition that was likely to pose a foreseeable risk of injury to others." This duty, as explained by another case, Havas v. Victory Paper Stock Co., 402 N.E.2d 1136, 49 N.Y.2d 381, 386 (N.Y. 1980), arises from the foreseeability of the risk created by the party: "[W]henever one person is by circumstance placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." Id. (internal citation omitted). In such cases, ordinary negligence principles should be applied (i.e., 1) Did the defendant breach its duty to exercise reasonable care, and 2) Was plaintiff's injury proximately caused by defendant's breach?).

This Court finds that there are triable issues of fact as to whether Nippon breached its duty of care in deciding not to order certain safety features for the forklift in question. To begin, were strobe lights or rearview mirrors actually installed in the subject forklift at the time of the accident? RCS' expert testifies that there were, but other testimony suggests that there were not. Secondly, with respect to the safety devices that the jury finds were not installed, was the choice not to install them reasonable, given the circumstances? Considering that these jury questions remain, defendant Nippon's motion for summary judgment on the matter of negligence is denied.

C. The Buyer/Lessor: RCS

Defendant RCS asserts that, unlike Nippon, claims against it should be dismissed because plaintiff's expert fails to allege any specific negligence against RCS, the expert's report and the deposition testimony of all witnesses make no mention of any failure by RCS to maintain or repair the subject forklift, and RCS had no involvement in Nippon's decision regarding whether or not to install optional safety devices such as backup alarms and strobe lights.

The negligence claim against RCS is at best a close one. While the Court agrees that plaintiff has submitted no evidence to suggest that RCS was negligent in its maintenance or repair of the subject forklift, it finds that there are factual questions as to whether or not RCS had a role in Nippon's decisionmaking about whether or not to order or install optional safety devices. Indeed, Nippon's freight leasing manager, Tomoko Yamazaki, testified in her deposition that she relied on the skill and judgment of RCS to determine what optional equipment should be used in the forklifts leased by Nippon. (Yamazaki Tr. 34-35.) Moreover, Nippon's chief supervisor for Building 79, Joseph Fernandez, testified that Nippon relied on RCS to ensure that their forklifts complied with OSHA regulations (Fernandez Tr. 37), and that Nippon would not have had to request that rearview mirrors be installed on the forklifts they leased because "Bob [Gallopi, the owner of RCS] was familiar with the OSHA requirements." (Fernandez Tr. 42). If the factfinder were to credit such testimony, it could choose to hold RCS negligent for improperly advising Nippon as to what safety devices it needed. Hence, on the issue of negligence, the Court is compelled to find that a jury question exists as to whether RCS, along with Nippon, breached its duty of reasonable care in choosing not to install optional safety devices in the subject forklift.

RCS has raised a secondary issue in its letter brief, namely the indemnification provision in its maintenance contract with Nippon. As RCS relates, the first paragraph of this contract states,

Customer assumes all risk and liability arising from its rental, possession and use of the equipment and agrees to indemnify and hold RCS harmless from any and all loss, damage, claims, suits, liens, penalties, liability and expenses (including attorney and fees) howsoever arising or incurred because of such rental, possession and use including, but not limited to, injuries to or death of persons or injuries to or destruction of property, loss of and damage to the equipment, and loss resulting from the inability to use and operate the equipment for any reason.

(Maintenance Agreement of June 7, 1995.)

RCS explains that this provision clearly provides that Nippon will defend and indemnify RCS for any lawsuits arising out of the use of any of the 18 forklifts. Nippon, however, has refused thus far to defend or indemnify RCS, and in its letter brief, explained that "[s]ince there was no negligence on the part of NCA as to the manufacture, maintenance, or operation of the subject forklift, NCA owes neither indemnification nor contribution to any of the co-defendants." (Nippon Letter of February 26, 2003.)

The Court finds that should RCS prove at trial that it is not negligent for plaintiff's injuries, Nippon shall be liable to RCS for indemnification and defense costs, including attorney's fees and expenses. Indeed, the indemnification agreement was negotiated by two sophisticated parties in an arms length transaction see Hogeland v. Sibley, Lindsay Curr Co., 366 N.E.2d 263, 265, 42 N.Y.2d 153, 158 (N.Y. 1977), and the language providing for indemnification is quite clear and unambiguous. The Court cannot grant RCS' motion for indemnification as a matter of law, however, because New York's General Obligation Law § 5-322.1 bars parties from making agreements which "indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons . . . contributed to, caused by or resulting from the negligence of the promisee, his agents or employees." Thus, until the factfinder determines that DiMaria's injuries were not caused in whole or in part by RCS's negligence, the Court cannot order that Nippon indemnify RCS.


Accordingly, defendant Komatsu's motion for summary judgment is granted, as are the motions of all three defendants on the issue of strict products liability. Defendant Nippon and defendant RCS' motions for summary judgment on the issue of negligence are however denied, as is RCS' motion on the matter of indemnification.


Summaries of

Dimaria v. Komatsu Forklift U.S.A., Inc.

United States District Court, E.D. New York
Jun 20, 2003
CV 02 589 (RJD) (E.D.N.Y. Jun. 20, 2003)
Case details for

Dimaria v. Komatsu Forklift U.S.A., Inc.

Case Details

Full title:LEONARD DIMARIA, Plaintiff, against KOMATSU FORKLIFT U.S.A., INC., RCS…

Court:United States District Court, E.D. New York

Date published: Jun 20, 2003


CV 02 589 (RJD) (E.D.N.Y. Jun. 20, 2003)

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