Lee v Hino Motors, LTD.

[*1] Lee v Hino Motors, LTD. 2005 NY Slip Op 50976(U) Decided on June 28, 2005 Supreme Court, Kings County Lewis, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2005
Supreme Court, Kings County

Timothy Sau Tsang Lee, ), Plaintiff,

against

Hino Motors, LTD., HINO DIESEL TRUCK, INC., EXPRESS CONCRETE, INC. and BIAGIO ) MENDOLIA, Defendants. HINO MOTORS, LTD., HINO DIESEL TRUCKS (U.S.A.), INC. Third-Party Plaintiffs, FISH KING ENTERPRISE, INC., and JIAN BIN YANG, Third-Party Defendants. EXPRESS CONCRETE, INC. and BIAGIO MENDOLIA, Second Third-Party Plaintiffs, FISH KING ENTERPRISE, INC., and JIAN BIN YANG, Third-Party Defendants.



8263/99

Yvonne Lewis, J.

On December 26, 1996, a non seat-belted Timothy Sau Tsang Lee, the plaintiff passenger of an eight point two five ton Hino Truck [1987 FB model], being driven on the eastbound lane of the Long Island Expressway by his co-worker, Jian Bin Yang, sustained internal injuries and required a below the knee right leg amputation following a rear end collision with a 40 ton cement mixer truck. Defendant third-party plaintiffs, Hino Motors, Ltd., and Hino Diesel Trucks (U.S.A.), Inc., have moved herein for summary judgment to dismiss the plaintiff's complaint and all cross-claims with prejudice, pursuant to CPLR 3212. They have done so on the grounds that the plaintiff's claims are predicated on two distinct grounds. First, by Mr. Yang's negligence [*2]which was conceded in his deposition testimony wherein he admitted to having been focused on his own vehicle such that he didn't take notice of any other cars and could not stop in time when the driver of the cement mixer applied his brakes. Second, by the contention that the Hino truck has "insufficient crash-energy absorption components, defective welds in the front end, and incorporated an unwarranted cab-over design" and that "Hino failed to warn of the alleged hazards of riding in a small cab-over engine [COE] style truck." To assert his claim against Hino, the plaintiff is said to rely on the "second collision" doctrine whereby a "motor vehicle manufacturer can be held liable where, although a defect did not cause an accident, it enhanced plaintiff's injuries." (See Bolm v. Triumph Corp., 33 NY2d 151, 350 NYS2d 644).

The defendant third-party plaintiffs submit that "[b]ased on the weight and speed of the vehicles involved, the forces unleashed by the impact, the unique configuration of the vehicles involved, and the unique circumstances of the accident [Yang swerved to the left causing the left passenger side of the Hino truck to bear the brunt of the impact, and the rear end of the cement mixer protruded over the front bumper of the Hino truck such that it had no opportunity to absorb the crash energy], it is highly unlikely that any alternative COE design of the Hino FB's class, including a tank-like structure, could have prevented the un-belted plaintiff from sustaining serious or fatal injuries. In addition, Hino has submitted expert evidence demonstrating that the Hino FB model met all relevant [European and U.S.] standards for crash worthiness." Hence, the defendant third-party plaintiffs argue that the plaintiff has failed to sustain its burden pursuant to Garcia v. Rivera, 160 AD2d, 274, 553 NYS2d 378 (1st Dept. 1990), citing Caiazzo v. Volkswagenwerk, A.G., 647 F2d 241 (2d Cir. 1981), of furnishing proof of an alternative safer design, practicable under the circumstances; proof of what injuries, if any, would have resulted had the alternative, safer design been used; and, some method of establishing the extent of enhanced injuries attributable to the defective design. In addition, the defendant third-party plaintiffs note that "courts have also rejected failure to warn claims in second collision cases where the suspect feature of a vehicle's design is open and apparent (citing, Aghabi v. Sebro, 256 AD2d 287, 681 NYS 333 (2d Dept. 1998); Banks v. Makita U.S.A., Inc., 226 AD2d 659, 641 NYS2d 875 92d Dept. 1996); Lonigro v. TDC Elecs., 215 AD2d 534, 627 NYS2d 695 (2d Dept.); Mangano v. United Fishing Service Corp., 251 AD2d 589, 690 NYS2d 680 (2d Dept. 1999); and Driesenstock v. Volkswagenwerk, A.G., 489 F2d 1066 [4th Cir. 1974]). Accordingly, it is the defendant third-party plaintiffs' position that they are entitled to summary judgment inasmuch as the "plaintiff cannot show that any reasonably designed COE truck of the same class as the 1987 Hino FB could have prevented the un-belted plaintiff from sustaining serious injury in the accident."

It is the plaintiff's contention, in opposition to the Hino defendants' request for summary judgment, that the subject accident occurred when ". . .defendant Mandolia, who was driving a commercial truck for his employer, defendant Express Concrete, moved into plaintiff's lane of travel at an unsafely slow speed." The plaintiff also asserts ". . .that the Hino truck was not crash worthy because, in reasonably foreseeable collisions, its design allowed too much crash energy to be transferred to occupants of the truck instead of being absorbed by components outside of the occupant survival space." The plaintiff argues that a genuine issue of factsufficient to defeat the Hino defendants' motion for summary judgmentexists for the jury to decide since ". . .Hino blames the third-party defendant Yang and the severity of the accident for plaintiff's injuries [*3]while the plaintiff claims that the accident was reasonably foreseeable and plaintiff's injuries could have been avoided with any one of a number of alternative designs." That argument does not squarely address the defendant third-party plaintiffs' request for summary judgment vis-a-vis the plaintiff's cause of action under the "second collision" doctrine. However, his submission that his experts have concluded that ". . .the occupant survival space is too easily compromised in foreseeable collisions and too much crash energy is transferred to occupants instead of being absorbed by components outside of the occupant compartment, and that the significant risks associated with the design did not outweigh its highly questionable benefits" does speak to issues of fact divergently construed by the respective experts. This disparity in assessments is even more pronounced by the plaintiff's insistence that the testing to which the Hino defendants refer was inadequate since the European standards were sub par and the so-called equivalent U.S. models were much heavier and therefore better crash force absorbers. According to the plaintiff's expert, there are clearly alternative designs which ". . .would have made the subject vehicle safer and would have prevented or minimized [the plaintiff's] injuries[;]" e.g., a conventional truck; a modified conventional/COE design like commercial vans and UPS delivery trucks; or, strengthened front end components utilizing a heavier bumper assembly with heavier connections to the underbody frame, in conjunction with adding a grill guard. The grill guard component is admittedly an after market addition to improve occupant compartment crash worthiness that was neither standard equipment nor an option on the subject vehicle. The plaintiff also furnished expert testimony to the effect that the "impact of the accident was approximately 20 m.p.h. and not 50 m.p.h. as stated in the [Hino defendants' expert affidavit]. . . .[since] both vehicles were moving at similar speeds in the same direction at the time of the collision. Thus the force of the collision was not overly severe." Accordingly, the plaintiff's injuries would not have occurred or would have been significantly less, especially as concerns the lower leg injury.

Finally, the plaintiff notes that "a product that is defectively designed is one that was properly manufactured in accordance with the specifications intended by the manufacturer but the

product as designed is unreasonably dangerous. . . .[and] in order to make out such a claim, it must be demonstrated] (1) that the manufacturer marketed a product which was not reasonably safe in its design; (2) that it was feasible to design the product in a safer manner; and, (3) that the defective design was a substantial factor in causing the plaintiff's injury (citing Voss v. Black & Decker Mfg., Co., 59 NY2d 102 [1983]). "Factors to be considered in assessing the product's design include (1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that it will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of the user's awareness of the product's potential danger, and (7) the manufacturer's ability to spread the cost of safety-related design changes (citing a third Department case of Searle v. Suburban Propane Div. of Quantum Chem. Corp., 263 AD2d 335). The plaintiff adds that "questions of design defect have specifically been held to be inappropriate for summary judgment relief" (citing Bolm v. Triumph Corp., supra, 33 NY2d 151 [1973]). Furthermore, the plaintiff asserts that the three prong test for establishing "second collision" claims necessarily entail expert testimony that create issues of fact that are inimical to summary adjudication. The fact is a plaintiff must offer proof of a reasonable alternative design [*4]that is safe and practicable under the circumstances; demonstrate what injuries, if any, would have resulted had the alternative, safer design been used; and, establish the extent of enhanced injuries that resulted from the defective design, all of which have been established by its expert witnesses in this case and are disputed by the Hino defendants and their experts.

The Hino defendants submitted a reply affirmation after the matter had been deemed submitted for decision to which the plaintiff interposed a letter of objection. In addition, third-party defendants, FishKing Enterprises, Inc. and Jian Bin Yang, oppose the forwarding of a short form decision by J. Tingling of the New York County Supreme Court by plaintiff's counsel which denied summary judgment to the Hino defendants in an unrelated matter. These post oral argument submissions were untimely and improper. In any event, this court finds that a ruling in an unrelated matter on grounds unknown to it cannot be of significance in its determination herein. Furthermore, a cursory perusal of the mentioned reply affirmation revealed nothing more than an attempt to refute by critiquing the credentials of the plaintiff's experts, pointing out alleged inaccuracies in the testing methodologies utilized and inadequacies in the proposed safer designs, as well as an attempt to vouch for the Hino experts above and beyond those proffered by the plaintiff. Such arguments resulted in nothing more than highlighting additional issues of fact.

A party is entitled to summary judgment upon a demonstration that there exists no genuine issue of material fact. Materiality is determined on the basis of substantive law (See Anderon v. Liberty Lobby, Inc., 477 US 242, 106 S. Ct. 2505 (1986). Once the moving party meets the initial burden that there is no issue of material fact, the burden shifts to the non-movant to establish that a trial is required because a disputed issue of material fact does exist (See Weg v. Macchiarola, 995 F2d 18 (2d Circ. 1993). "In weighing a motion for summary judgment, the court must accept as true the non-moving party's evidence and make 'all justifiable inferences' in the non-moving party's favor"[and] the standard for review is "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." (Anderon v. Liberty Lobby, Inc., supra).

Bolm v. Triumph Corp., supra, 33 NY2d 151, established that a manufacturer could be held liable for "defects in design which do not cause accidents but do enhance or aggravate injuries. Relying on Larsen v. General Motors Corp., 391 F2d 495 (8th Circ. 1968), the New York Court of Appeals adopted the view that ". . .this expansion of liability was limited to those damages or injuries which were sustained 'over and above' those that would have occurred in the collision absent the allegedly defective design." In a second collision case, the plaintiff must ". . .prove the existence of a design or manufacturing defect or the manufacturer's failure to provide adequate warnings. Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 463 NYS2d 398 [1983]. If the plaintiff relies on the design defect theory, then she also must show that an alternative safer design was feasible. Caiazzo v. Volkswagenwerk, A.G., supra, 647 F2d 241, (2d Cir. 1981), citing Huddell v. Levin, 537 F2d 726 (3d Cir. 1976); Garcia v. Rivera, supra, 160 AD2d 274, 553 NYS2d 378 (1st Dept., 1990), appeal denied, 77 NY2d 801, 566 NYS2d 586 (1991); Burgos v. Lutz, 128 AD2d 496, 512 NYS2d 424 (2d Dept. 1987). In addition, the second collision plaintiff has the burden of proving the extent of the enhanced injuries attributable to the defect. (See Caiazzo, supra; Garcia, supra; Held v. Ball, 123 AD2d 507, 507 NYS2d 98 (4th Dept. 1986); Cornier v. Spagna, 101 AD2d 141, 475 NYS2d 7 [1st Dept. 1984]). Evidence of enhanced injuries 'will generally, perhaps even necessarily, be in the form of expert testimony.'(See [*5]Caiazzo, supra).

In the matter sub judice, while the Hino defendants satisfied the initial burden of demonstrating that no issue of material fact was apparent in the design safety of the Hino truck involved in the subject accident, the plaintiff in turn met its burden of raising triable issues with regards to that conclusion. In short, it remains for a jury to determine, based on the expert opinions advanced by the respective parties, whether the plaintiff would have sustained the loss of his right leg despite the non use of his seat belt if the 1987 FB model Hino Truck herein concerned had or could have been reasonably redesigned and/or modified in the manner advanced by the plaintiff. To make that determination, the finders of fact will necessarily have to assess the validity of the testing methodologies, the qualifications of any experts, and the feasability of any alternative designs. Accordingly, the defendants/third-party plaintiffs', Hino Motors, Ltd., and Hino Diesel Trucks (U.S.A.), Inc.'s, motion for summary judgment to dismiss the plaintiff's complaint and all cross-claims with prejudice, pursuant to CPLR 3212, is denied. This constitutes the decision and order of this Court.

_________________________________

JSC