Sullivan v Invacare Corp.

[*1] Sullivan v Invacare Corp. 2009 NY Slip Op 51153(U) [23 Misc 3d 1136(A)] Decided on June 4, 2009 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2009
Supreme Court, Suffolk County

Brian Sullivan, Plaintiff,

against

Invacare Corporation and MED STAR SURGICAL & BREATHING EQUIPMENT, Defendants.



06-12291



BAUMAN & KUNKIS, P.C.

Attorneys for Plaintiff

14 Penn Plaza

New York, New York 10122

SEDGWICK, DETERT, MORAN & ARNOLD

Attorneys for Defendant Invacare Corporation

125 Broad Street, 39th Floor

New York, New York 10004-2400

CHESNEY & MURPHY, LLP

Attorneys for Defendant Med Star Surgical

& Breathing Equipment

2305 Grand Avenue

Baldwin, New York 11510

Thomas F. Whelan, J.

It is, ORDERED that these motions are consolidated for the purpose of this determination; and it is further

ORDERED that the motion (#

004) by defendant Invacare Corporation for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff's complaint as against it, is denied; and it is further

ORDERED that the motion (#

005) by defendant Med Star Surgical & Breathing Equipment for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff's complaint as against it, is also denied.

The plaintiff commenced this action sounding in negligence, breach of warranty and products liability for injuries he sustained is two separate incidents: (1) when the right leg/foot support for his motorized wheel chair allegedly malfunctioned and his right leg was drawn under the chair in November 2004, and (2) when the left leg/foot support malfunctioned and his left leg was drawn under the chair in December 2004. The motorized wheel chair was manufactured by defendant Invacare Corporation (hereafter Invacare) and was delivered, maintained, and repaired by defendant Med Star Surgical & Breathing Equipment (hereafter Med Star).

The plaintiff became a quadriplegic in 1994 and has used a "siff and puff" motorized wheelchair since then. He has owned three wheelchairs. He had the first wheelchair for about five years, the second was destroyed in a house fire in 2004, and the third, which is the subject of the instant action, was delivered in August 2004 . The plaintiff testified at his deposition that he did not recall any problems with the leg/foot rests on his first two wheelchairs. The plaintiff stated that he cannot see his feet when seated in his chair and that he often bumped into wall or doors, but that these bumps were not hard because the chair moved very slowly. The plaintiff testified to the effect that the leg/foot rests for the new subject wheelchair were "flimsy" or "weak," that they would swing out of position, and that they, in fact, broke. The leg/foot rests were replaced in October 2004, before his first accident, but it appears that the problems continued. At the time of the November incident, the plaintiff's mother had lowered his chair to the driveway via the van lift. The plaintiff stated that, as he moved himself towards the house, he felt something go wrong with his right leg, and that he later ascertained that the rest had broken and his leg had been drawn under the chair. His right leg was broken and was in a cast for six weeks. The plaintiff testified that during this time he was not well and was confined to bed, that he only left the house to go to the doctor, and that both leg/foot rests were again replaced on his chair. At the time of the December incident, the plaintiff testified to the effect that his right leg [*2]was still in a cast, that he was again proceeding on the driveway from the van to the house, that the left leg/foot rest broke and swung out, and that he could feel that his left leg was drawn under the chair, also resulting in a break. The plaintiff's mother testified at her deposition that, at the time of the December accident, she was behind the wheelchair as the plaintiff proceeded towards the house and that she saw the left leg rest swing out.

Kevin Mooney (Mooney), the rehabilitation technology supplier for Med Star, testified at his deposition that his job included, among other responsibilities, evaluating repairs and that he sometimes performed the repairs himself. He was familiar with the plaintiff and his prior wheel chair, and delivered the subject replacement wheelchair to the plaintiff on August 6, 2004. The subject chair came with power elevated leg rests, as had the previous chair. At the plaintiff's request, the power elevated leg rests were replaced with manual elevated leg rests. Mooney testified that he had no way of knowing of complaints about the rests made by the plaintiff or his family directly to Med Star, other than the work orders he received requiring him to go to the plaintiff's residence. On September 10, 2004 he went to the plaintiff's residence to adjust the wheelchair's computer. On October 21, 2004 he went to the residence to replace the leg rests after the plaintiff's mother advised him directly that they were broken. When he arrived at the residence the rests were not on the chair and he never saw them. Mooney testified that he ordered new leg rests and that the new rests were delivered directly to the plaintiff's residence.[FN1]

The defendants now move for summary judgment dismissing the plaintiff's complaint. They rely upon the deposition testimony of Mooney and of Roland Mentessi (Mentessi), Invacare's senior project engineer. Mentessi testified that he inspected the subject wheelchair and also inspected the foot/leg supports, including the "rigging" and hanging baskets which the plaintiff alleges failed to perform adequately. He testified that the rigging was made of Invacare's standard steel tubing, which is of adequate strength for its intended purpose, and that the rigging appeared to have been subjected to considerable abuse. The cover for the release handle was missing or taped to the side, the tubing and hanging basket was bent or warped and showed abrasions beyond that of normal wear and tear, and the mounts were distorted. Mentessi concluded that the plaintiff impacted a solid object "which left the release handle unsecured in the mechanism for a significant period of time," and that the plaintiff continued to use the wheelchair in that condition, "resulting in the device loosening and falling out."

The gravamen of the defendants' motions is that the plaintiff has failed to identify a theory of products liability, by failing to offer direct evidence as to how or why the accidents occurred, and by failing to indicate the nature of the alleged defect or any alternate design which would have altered the occurrences. However, it is well settled that "[a] plaintiff need not adduce direct evidence of a specific defect, but, depending on the circumstances, may rest on proof that the product did not perform as intended by the manufacturer" (Taft v Sports Page [*3]Shop, 226 AD2d 974, 640 NYS2d 698 [3d Dept 1996] quoting Larkin Trucking Co. v Lisbon Tire Mart, 210 AD2d 899, 900, 620 NYS2d 654 [4th Dept 1994]). Here, both defendants contend that the plaintiff's circumstantial evidence of a defect in the rests -that they failed to safely support his legs- is insufficient to withstand their summary judgment motion because he has not identified the precise defect which caused the failures. They rely on Mentessi's conclusion that the plaintiff abused or misused the chair, which permitted the release mechanism to remain unsecured, and then continued to use the chair, resulting in the disproportionate wear and bending of the rigging. Assuming, without deciding, that the plaintiff continued to use the chair when the leg rests release mechanism was unsecured, the defendants have not eliminated all questions of fact as to the cause for the initial problem. While the defendants conclude that it was the plaintiff's operation of the chair ("impacting" objects) which precipitated the problems, the plaintiff testified that is was normal for his chair to bump into walls or doors because he could not see his feet, but that such bumps were not hard because the chair did not move very fast. "Where causation is disputed, summary judgment is not appropriate unless only one conclusion may be drawn from the established facts' " (Speller v Sears, Roebuck & Co.,100 NY2d 38, 44, 760 NYS2d 79 [2003], quoting Kriz v Schum,75 NY2d 25, 34, 550 NYS2d 584 [1989]). Moreover, it is the movant's initial burden on a summary judgment motion to establish that the product was not defective as a matter of law (Schlanger v Doe,53 AD3d 827, 861 NYS2d 499 [3d Dept 2008]; Triple R Farm Partnership v IBA, Inc., 21 AD3d 1260, 801 NYS2d 666 [4th Dept 2005]; Porter v Uniroyal Goodrich Tire Co., 224 AD2d 674, 674, 638 NYS2d 702 [2d Dept 1996]). Conclusory allegations regarding the absence of a defect "may not serve as a sufficient predicate for summary judgment" irrespective of the plaintiff's proof (Carrington v Commissioner of Westchester County Correctional Facility, 278 AD2d 352, 718 NYS2d 618 [2d Dept 2000]; Coley v Michelin Tire Corp., 99 AD2d 795, 472 NYS2d 125 [2d Dept 1984]) and a defect in a product may be proved through the use of circumstantial evidence that the product did not function as intended by the manufacturer (Codling v Paglia, 32 NY2d 330, 337, 345 NYS2d 461 [1973]; Dubecky v S2 Yachts, 234 AD2d 501, 502, 651 NYS2d 602 [2d Dept 1996]; 1 Weinberger, New York Products Liability § 18:09). Here, the Court finds that neither defendant met its initial burden (Calandra v Crane Plumbing, 54 AD3d 665, 836 NYS2d 485 [2d Dept 2008]). Further, the plaintiff's complaint also alleges that Med Star negligently maintained or repaired the chair, and the Court finds that Med Star also did not meet its initial burden as to this claim. Accordingly, summary judgment dismissing the plaintiff's complaint is denied.



Dated:___________________________________________________Thomas F. Whelan, J.S.C. [*4] Footnotes

Footnote 1: Mooney's testimony is conflicting as to whether the leg rests were replaced twice -once before the November accident and then before the December accident - or just once. Plaintiff testified they were replaced before both the November accident and the December accident. There is no testimony as to who installed the replacement rests.