Zapata v Ingersoll-Rand Co.

[*1] Zapata v Ingersoll-Rand Co. 2012 NY Slip Op 51564(U) Decided on August 15, 2012 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 15, 2012
Supreme Court, Kings County

Carlos Zapata, et ano, Plaintiffs,

against

Ingersoll-Rand Company, et al., Defendant(s).



32810/06



Plaintiff Attorney: Gorayeb & Associates, 100 William Street, Ste. 1205, New York, NY 10038

Defendant Attorney: Porzio, Bromberg & Newman, 156 West 56th Street, Ste. 803, New York, NY 10019

David Schmidt, J.

The following papers numbered 1 to 19 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1 - 5

Opposing Affidavits (Affirmations)6 - 12Reply Affidavits (Affirmations)13 - 19Affidavit (Affirmation)Other Papers

Upon the foregoing papers, motion sequence numbers 10 and 11 are consolidated for disposition. Defendant/third-party plaintiff Ingersoll-Rand Company (Ingersoll) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint of Carlos Zapata (hereinafter referred to as plaintiff) and Maria Zapata (hereinafter Carlos and Maria Zapata shall be collectively referred to as the plaintiffs) and all claims, cross claims and counterclaims against it (motion sequence number 10). Third-party defendant [*2]Whitey's Tire Service, Inc. (Whitey's), moves for an order, pursuant to CPLR 3212, granting Ingersoll summary judgment dismissing plaintiffs' complaint (motion sequence number 11).

Facts and Procedural Background

On April 29, 2004, while employed by Whitey's, plaintiff was sent to Belmont Racetrack to fix a flat tire on a tractor; the tire was manufactured by Specialty Tires of America, Inc. (STA). Plaintiff used an air compressor to inflate the tire. The tire exploded and the rim hit plaintiff, allegedly propelling him two stories into the air and causing him to sustain grave injuries, including the amputation of his right arm. The subject air compressor was manufactured by Ingersoll, who sold it to Byrne Compressed Air Equipment (Byrne), who sold it to co-defendant Murlynn Air Compressor Corp. (Murlynn), who sold it to Whitey's.

Plaintiffs commenced the instant action against Ingersoll and Murlynn, alleging that plaintiff would not have been injured if the air compressor had an adjustable regulator to reduce the air pressure in the accumulator/receiver tank and an output gauge to view the pressure in the tire that was being inflated. Accordingly, plaintiffs seek to recover compensatory and derivative damages, alleging claims based upon defective design, inadequate instructions and warnings, negligence, allowing the marketing department to make safety decisions, and breach of the implied warranty of merchantability. Ingersoll commenced a third-party action against Whitey's seeking indemnity and contribution, alleging that if plaintiff was injured while using the compressor in the course of his employment, his injuries were caused by Whitey's use, misuse, testing, maintenance, servicing or lack thereof of, of the compressor and/or its training of its employees in the use, inspection, testing maintenance and servicing of the compressor.

Plaintiffs' ArgumentAt his deposition, plaintiff testified that he is a 37 year old man who had 30 years of experience changing and repairing tires, both in Nicaragua and in the United States. Plaintiff worked for J-Tires in Brooklyn in 1993 for about a year and at Ganin Tires in the Bronx for about one year in 1994. While so employed, he learned that one could be killed while inflating a tire if it exploded while it was not in a safety cage, i.e., a metal frame that holds the tire in place so that it remains stationary. Although plaintiff used a tire cage at J-Tires and at Ganin, when he began working for Whitey's in 1994, he inflated tires by laying them flat on the ground. He would attach the air hose, count to five and then check the pressure until it was properly inflated. Plaintiff had never overinflated a tire in the eight years that he worked at Whitey's, using the same air compressor and the same procedure.

Plaintiff further testified that on the day of the accident, he had to take the tire off the tractor to repair it because the valve was facing into the tractor; he used the compressor and a pneumatic air powered jack and a pneumatic impact wrench to loosen the lug nuts on the wheel rim while so doing. He then placed the tire flat on the ground and assembled the air hoses. Plaintiff put a lever and a nozzle on one end, to attach to the valve stem on the wheel; he called this a spring clip. Towards the other end of the hose, he installed a lever valve that [*3]enabled him to open and shut the flow of air to the tire. Plaintiff so structured the hoses as a safety precaution in case the tire blew up. He attached the spring clip to the valve and counted to five; when he checked the air pressure, it was 15 PSI. Plaintiff then inflated the tire while he counted to five again; he then checked the pressure, which had risen to 30 PSI. He then inflated the tire while he counted to five a third time. When he disconnected the spring clip to check the pressure, the tire exploded. In an errata sheet, plaintiff changed his testimony and asserted that when he checked the pressure of the tire the second time, it was 30 PSI and the last time he checked it, it was 45 PSI. Accordingly, after again inflating the tire for another five seconds, the pressure would have been approximately 60 PSI when it exploded.[FN1]

Ingersoll's Contentions

In support of its motion, Ingersoll argues that plaintiff cannot make out a prima facie design defect claim because the compressor was and still is "reasonably safe" as designed and marketed. Ingersoll further contends that the compressor was not unreasonably dangerous without an adjustable output pressure regulator, with corresponding gauge and pressure switch, and that adding these components would not have made the compressor safer or prevented plaintiff's injuries. In addition, Ingersoll argues that the lack of these components did not proximately cause plaintiff's injuries, since the evidence establishes that plaintiff did not over-pressurize the tire, so that it did not explode off the rim for that reason; rather, the tire burst off the rim without sustaining any significant damage because it was misaligned and not properly seated on the rim during inflation. In addition, the evidence establishes that plaintiff disregarded widely accepted safety measures for inflating truck tires; alternatively, Whitey's failed to provide proper training and equipment for the job.

Finally, Ingersoll contends that it provided adequate warnings in its product literature and on the machine and that the warnings plaintiff contends should have been given were not necessary because plaintiff was well aware of the dangers associated with inflating truck tires. Moreover, Ingersoll avers that plaintiff deliberately ignored the warnings that were prominently displayed on the tire:

SPECIFIED INFL. 56 P.S.I. COLD

FOR SPEEDS UP TOMAX LOADFOR SPEEDS UP TOMAX LOAD

10 M.P.H.478025 M.P.H.4080

A second warning on the tire stated that:

WARNING/MOUNTING[*4]

TO AVOID SERIOUS BODILY INJURY (1) USE PROPER SIZE RIM AND PARTS. (2) FASTEN TIRE ON TIRE CHANGER OR USE SAFETY CAGE. (3) USE EXTENSION AIR HOSE WITH IN-LINE GAUGE AND CLIP-ON AIR CHUCK. (4) NEVER INFLATE ABOVE 35 PSI TO SEAT THE TIRE BEADS.

Ingersoll also submits an affidavit from Steven R. Thomas, a professional engineer, in support of its motion. Therein, Mr. Thomas opines that the tire did not explode and separate from the rim because it was over pressurized, as contended by plaintiff, and that the air compressor was safe for its intended use at the time that it was designed, manufactured, marketed, sold and used by plaintiff. More specifically, Mr. Thomas states that based upon plaintiff's corrected deposition testimony that he inflated the tire to approximately 60 PSI when it exploded, the pressure was only 4 PSI over the pressure rating of 56 for the tire. Mr. Thomas alleges that the tire would not have exploded if inflated to 60 PSI, since the rating of 56 PSI is for the tire when it is "cold;" tires, however, are manufactured to withstand higher pressure when the temperature increases, as when the tire is in use. He also points out that neither the wheel rim nor the tire showed the type of physical damage that would be present if the tire exploded and separated from the rim due to over-pressurization. Mr. Thomas explains that a tire would separate from the rim only if a tire bead [FN2] failed, if the additional pressure caused a large tear in the sidewall or if the bead seat area of the wheel became grossly distorted during inflation. In this case, none of these conditions were present, since the tire and beads appeared to be structurally intact. Mr. Thomas further asserts that this is evidenced by the fact that the tire was inflated after plaintiff's accident and that it held air.

Accordingly, Mr. Thomas concludes that the tire exploded because it was not properly aligned or "seated" on the rim. Mr. Thomas explains that in this case, the beads of the tire "seat" on the portion of the rim that has a 16 inch diameter; the rim also has a well area that is 14 inches in diameter and an outer flange of 17.75 inches, which keeps the tire from passing over the outer edge of the rim as it inflates. He thus alleges that a portion of the tire bead had to have been positioned in the lower, 14-inch well area when it was being inflated; so positioning the tire caused it to gap opposite the misaligned portion of the bead and that allowed the tire to pass over the outer flange. This conclusion is further supported by the fact that the tire shows two symmetrical distortions on one side of the tire bead that are approximately 10 inches a part. When the bead was forced over the flange, the energy contained in the compressed tire was suddenly released, which resulted in the explosive force that caused the subject accident. Thus, a pressure regulator set at 56 PSI would not have helped plaintiff seat the tire properly on the rim and accordingly would not have prevented the accident. [*5]

Mr. Thomas further opines that the air compressor was not defectively designed, since it was not built for home use, but was meant to be used by "sophisticated end users to provide a dependable source of compressed air for a number of industrial applications." In this regard, the air compressor was set to a 150 PSI load and a 175 PSI unload, i.e., the compressor would pump up in the air receiver tank to 175 PSI and then throttle down to 150 PSI. This allowed the end user to determine the appropriate method to use the air compressor. Further, there is no evidence presented to establish that the air compressor did not work as intended on the day of the accident so that it was, therefore, reasonably safe for its intended use and was not unreasonably dangerous without an adjustable pressure regulator. Moreover, there are no codes, regulations or industry standards that require an air compressor of this type to be built with an adjustable pressure regulator. Nor would an adjustable regulator have prevented the bead from becoming misaligned on the wheel's bead seat area and passing over the wheel's outer flange.

In addition, Mr. Thomas alleges that plaintiff and his employer failed to comply with OSHA Regulation § 1910.177, which sets forth the safety requirements to be followed in inflating a tire on a single-rim wheel. Briefly summarized, these regulations require that an employer provide a tire cage that must be used, unless the tire is otherwise properly restrained. Further, the hoses provided should have a clip-on chuck and an in-line valve with a pressure gauge.

Finally, Mr. Thomas avers that Ingersoll provided the appropriate instructions and warnings regarding the potential hazards of using the air compressor. In this regard, because of the many uses to which the air compressor could be put, there are innumerable custom output piping arrangements available, so that the distributors, dealers and end users could customize any desired regulator. Mr. Thomas thus contends that Ingersoll was not obligated to provide warnings that specifically pertain to inflating tires; since the air compressor had so many different uses, including a warning for all possible uses would reduce the effectiveness of the warnings for the key instructions and dangers.

Plaintiffs' Opposition

In opposition to the motion, plaintiffs rely upon an affidavit from Jeffrey Ketchman, a professional engineer, to argue that the accident occurred due to a bead break that was caused by the internal over-pressurization of the tire, and that the bead break may have been pre-existing. In so arguing, Mr. Ketchman relies upon an x-ray taken of the tire taken by Scott Rair on April 1, 2011 that shows a clean bead break on the side of the tire that was lying on the ground while plaintiff was inflating it. The break was at the point where the high strength steel that is wound multiple times around the tire to form the bead was spliced together; such a break can only be seen on an x-ray. Since the tire was re-inflated to 56 PSI by Whitey's after the accident and retained its integrity and shape, Mr. Ketchman claims that the break occurred when the pressure inside the tire exceeded 56 PSI. Mr. Ketchman also contends that plaintiff's deposition testimony establishes that he did not use a tire cage because one was not provided to him, that he properly seated the beads of the tire on the rim, [*6]that he inflated the tire using his counting method, that his last reading of the pressure gauge revealed that the pressure in the tire was 45 PSI and that the tire then exploded when it was over-pressurized.

Mr. Ketchman thus concludes that plaintiff's accident could have been avoided if the air compressor had an adjustable pressure regulator and a pressure gauge built into the compressor, so that an unsophisticated end user like plaintiff could not have over inflated the tire beyond its safe limit of 56 PSI. In this regard, plaintiffs also argue that it has not been established that Ingersoll ever advised Byrne and/or if Byrne ever advised Murlynn of the availability of add on regulators and gauges or provided any manuals or training with regard to the use of the equipment; Mr. Aurora, a co-owner of Whitey's, testified at his deposition that he was not so advised. Thus, plaintiff had no choice but to leave the settings on the compressor at 150 PSI and 175 PSI, as pre-set at the Ingersoll factory, and rely upon his necessarily less safe "counting method" to determine the pressure in the tire while it was being inflated. Mr. Ketchman thus argues that these safeguards should not have been sold as accessories, but should have been provided for every air compressor, since the air compressor, as sold, was not reasonably safe, and Ingersoll did sell some air compressors that were so equipped, thereby establishing that the technology existed and the cost would be de minimis. Finally, plaintiffs argue that no warnings were provided by Ingersoll with regard to using the air compressor to inflate tires.

Ingersoll's Reply

In reply, Ingersoll provides an affidavit from Rick Mauk, as expert in mechanical engineering technology who is employed as the Manager of Tire Engineering for STA, who alleges that he is familiar with the tire that injured plaintiff. Mr. Mauk explains that the tire was designed to be used on farming equipment and was engineered to support a maximum weight of 4,780 pounds when traveling at a speed not to exceed ten miles per hour. The tire beads are manufactured to accommodate the maximum load, speed and inflation pressure specified by the Tire and Rim Association of America. To meet this standard, the tire has a bead comprised of 19 steel wires encased in vulcanized rubber and wrapped in a circular fashion. Based upon an industry standard formula, the subject tire is required to have 49 steel wires per bead to meet a safety factor of 1 while not supporting any weight and not rotating from being in use. The subject tire therefore exceeds the recommended standard by five and one-half times. Mr. Mauk thus contends that the tire is capable of withstanding far greater inflation pressure than 56 PSI. Further, Mr. Mauk alleges that by specifying the 56 PSI rating, STA was not stating or representing that the tire would explode if the pressure exceeded that amount.

Ingersoll also relies upon an affidavit submitted by Glenn D. Follen, a tire analyst and consultant who has been employed in the tire industry for 42 years and who owns his own company that is engaged in the forensic inspection and analysis of failed tires. Mr. Follen first alleges that he agrees with Mr. Ketchman's opinion that the x-ray of the subject tire evidences a bead break proximate to the splice. He further avers that it is know that when [*7]the splice overlap is included in an obstructed or "hung up" area of the wheel rim, stress concentrates at the sensitive inner end of the overlap and becomes a focal point, which may cause a bead to break. He also notes that Mr. Ketchman's opinion that the bead break may have occurred prior to plaintiff's accident refutes his contention that the bead break occurred from the over-pressurization of the tire.

Mr. Follen goes on to argue that Mr. Ketchman's assumption that the tire exploded because it was over-pressurized because it seated properly and remained on the rim when re-inflated by Whitey's after the accident is erroneous. In this regard, he also asserts that there could not have been enough pressure in the tire for the bead to break if it was properly seated on the rim because the tire was manufactured with a "factor of safety" to ensure that the tire can withstand significantly more inflation pressure than the pressure inscribed on the tire. In Mr. Follen's experience, tires are commonly manufactured to withstand approximately three times the recommended air pressure specified on the tire when it is in a dynamic state, i.e., when it is in use and subject to the forces of load, torque and rotation. Here, STA confirms that the subject tire was manufactured with 49 steel wires per bead, or two and one-half times the calculated amount required for a tire designed to support 4,780 pounds, rotating on a vehicle at ten miles per hour. Thus, the tire is capable of withstanding 140 PSI when in a dynamic state, which is two and one-half times the 56 PSI.

Mr. Follen also explains that basic tire engineering principles compel the conclusion that when a tire is in a "static" state, i.e., it is not subject to any load or rotation, it can withstand a much higher inflation pressure. Accordingly, since plaintiff inflated the tire when it was lying flat on the ground, the tire bead's strength is five and one-half the recommended pressure, or at least 308 PSI. From this it follows that it was not possible for plaintiff to have over inflated the tire, since the air compressor that he was using had a maximum discharge pressure of 175 PSI and accordingly would not have allowed him to inflate the tire beyond that level. In fact, since plaintiff testified that he counted to five when he inflated the tire after the gauge indicated that the pressure was 45 PSI, he would have had to have inflated the tire for additional 87 seconds to reach 308 PSI, even assuming that the air compressor that he was using could reach that level, which is not the case here.

Mr. Follen thus asserts that since it is impossible that the tire exploded because it was over-pressurized, it must be concluded that it exploded because it was not properly seated on the rim. Mr. Follen explains that if a tire is properly seated, every section of the bead will work uniformly to accommodate increasing pressure. If the pressure inflates above the 308 PSI, i.e., above the tire's safety factor, the over-pressurization would cause the carcass to severely rupture, which would, in turn, cause significant and visible damage to the tire. In this case, the tire was visibly intact, until x-rayed, which is evidence of a low-pressure bead break. Thus, the tire bead broke at low pressure because it got "hung up"in the well area of the rim and never seated properly. Explained briefly, when a tire is to be inflated, it is placed onto the rim and centered in the well area. As it is pressurized, the beads slide up from the well to the outer flange. If a section of the beads cannot slide up to the flange, "chording" [*8]occurs. This means that instead of having all of the steel wires in the bead evenly supporting the increasing pressure, the inner most wire that is hung up supports most of the pressure, if not all, and will break at a low air pressure, often at the specified rating of the tire. Mr. Follen opines that that is what happened here, which conclusion is also supported by his inspection of the rim itself, which revealed that it was severely rusted, which can create a great deal of friction that would hinder proper seating. In addition, plaintiff's deposition testimony does not indicate that he lubricated the rim, which would also substantially increase the chance of a hang up. Mr. Follen also contends that the fact that Whitey's was able to re-inflate the tire is of no significance, since the tire was re-inflated using different procedures and equipment and it cannot be determined if it was seated in the same place on the rim. Moreover, it is impossible to know how a tire with a bead break is going to react to inflation pressure.

Plaintiffs' Reply

In reply, plaintiffs first argue that Mr. Thomas, who was proved wrong in asserting that there was no bead break in the tire, fails to offer a reply affidavit. Plaintiffs also argue that Mr. Mauk's affidavit is "vague, ambiguous, unsubstantiated and full of hearsay." For example, plaintiffs allege that Mr. Mauk's affidavit fails to advise the court or the parties of when the tire was manufactured; how he knows that there are 49 wires per bead or how the bead is configured; and the mathematical basis of the "industry formula" utilized to calculate the maximum load, speed and inflation pressure of the tire. In addressing Mr. Follen's affidavit, plaintiffs argue that the warning on the tire does not contain any language indicating that the 56 PSI refers to the pressure when the tire is cold; he now agrees that there was a bead break; he concedes that the inflation pressure could have been as high as 60 PSI when the tire was cold; and his conclusion that there was a hang up is not substantiated by admissible evidence and is contradicted by plaintiff's testimony.

In his affidavit, Mr. Ketchman adds that while the bead was broken on the subject tire, the break did not occur during this accident, but instead happened during some other servicing prior to this accident. In support of this contention, Mr. Ketchman also points out that plaintiff submitted an affidavit in which he stated that he heard the tire and the bead pop and seat and now submits an affidavit in which he states that he lubricated the tire and the rim; this assertion is supported by photographs that show that the lubricating gel had dripped. Mr. Ketchman again argues that the at the time of the accident, the separation of the tire from the rim occurred at a pressure greater than 56 PSI; he thus concludes that it would not have exploded if plaintiff was using an air compressor with a pressure regulated output, so that it could have been set it at 56 PSI. Thus, although the tire held in place when re-inflated by Whitey's to 56 PSI, it is unknown at what pressure the tire exploded. Further, Ingersoll did not establish that its air compressor was not unsafe for its intended purpose, since it is clear that if the pressure had been set to 56 PSI, this accident would not have happened. Indeed, the fact that Ingersoll sold smaller compressors with adjustable regulators illustrates the value of such a device and its economic feasibility. Mr. Ketchman also avers that Ingersoll is not [*9]relieved of this obligation by relying upon the end user to procure appropriate safety accessories.

Ingersoll's Reply

In responding to the new affidavits, Mr. Follen points out that in his initial affidavit, Mr. Ketchman states that the bead break could have occurred prior to the subject accident, but concluded that the break occurred on the day of the accident because plaintiff over-inflated the tire. In his reply affidavit, however, Mr. Ketchman concedes that in this case, the tire pressure was not high enough to break an intact bead because the compressor could not supply it. Instead, Mr. Ketchman now argues that if the bead hang up and breakage occurred in this accident, it was because the break was caused during some other servicing prior to this accident. Accordingly, Mr. Ketchman is now arguing that plaintiff was injured while attempting to inflate a defective tire. More significantly, Mr. Ketchman now argues that the tire exploded because the pressure was increased to 60 PSI, and accordingly continues to argue that the accident could have been prevented if the air compressor had a pressure regulator that prevented the pressure from going above 56 PSI. Mr. Follen argues that this conclusion is erroneous, however, since once a tire has a broken bead, its structural integrity is severely compromised and its overall strength, durability and ability to handle inflation pressure cannot be determined. Thus, since one cannot determine what inflation pressure is safe for a tire with a broken bead, the presence of a regulator and/or gauge on the air compressor would not have prevented the accident.

In addition, Mr. Follen again explains that the fact that the tire was re-inflated to 56 PSI on the day after the accident is without significance, since the rate of inflation, positioning of the tire and where the tire was seated on the rim all could be different and any one factor would have impacted the tire's performance. More significantly, Mr. Ketchman argues that plaintiff inflated the tire to approximately 60 PSI, thereby arguing that the tire could be safely inflated to 56 PSI, but not to 60 PSI. Mr. Follen asserts, however, that the difference of 4 PSI is not significant and, as noted above, it is impossible to determine the pressure at which a tire with a broken bead will separate from the rim. For this reason as well, having a regulator that set the air pressure from the compressor to 56 PSI would similarly not have prevented the accident. This is further supported by plaintiff's testimony, which indicates that the tire did not explode immediately after he stopped inflating it, but instead exploded a few seconds later, when he unclipped the air hose, since the delay in time is due to the progressive failure of the individual component parts in the tire bead breaking as it approached destruction.

Mr. Follen thus concludes that plaintiff sustained injury because he inflated a defective tire and he did not place the tire in a protective cage before doing so. Moreover, the tire stated on its side that it should be inflated to 56 PSI when cold. It is known by tire manufacturers that the tire's internal pressure will increase by 5 to 10 PSI when the tire experiences increased temperatures from being in use or because of an increase in ambient temperature. From this is follows that whether plaintiff inflated the tire to 56 PSI or to 60 [*10]PSI, the tire was within normally expected operating pressure when it came off the rim. Accordingly, if the tire was properly seated, as argued by Mr. Ketchman, it came off the rim because the tire was defective, not because the air compressor did not have a regulator or gauge.

Mr. Mauk submits another affidavit in which he alleges that a broken bead is very serious and would have significantly compromised the tire's structural integrity and its ability to safely contain inflation pressure; even with a broken bead, the tire would still be able to handle some inflation pressure because of the multiple plies. Nonetheless, a tire with a broken bead should never be mounted on a rim or inflated, since the PSI indicated on the tire wall applies only if the tire is serviceable. Mr. Mauk further emphasizes that the warning on the tire states that to avoid serious bodily injury, the tire repair person should always fasten the tire on a tire changer or use a safety cage and use an extension air hose with an in-line gauge and clip on air chuck

Mr. Thomas also submits a supplemental affidavit in which he states that when he prepared his first affidavit, he had not seen the x-ray of the tire that showed a bead break and, like the other investigators, did not know that there was a bead break. Moreover, at the time that the earlier affidavit was prepared, Mr. Ketchman had concluded that the tire exploded off the rim because it was over-pressurized; he now is of the opinion that the accident occurred because plaintiff inflated a damaged tire, although plaintiffs still argue that the air compressor was defectively designed because it was not built with a user adjustable outlet pressure monitor and discharge pressure gauge and that these features would have prevented the plaintiff's accident. This in not the case.

In the first instance, Mr. Thomas explains that plaintiff's testimony establishes that he did not inflate the tire beyond 56 PSI. Although his testimony changed, he still stated that the last time he checked the pressure on the tire, it was 45 PSI; he then counted to five when he inflated it again. Because of the pressure differential between the air leaving the compressor and the air inside the tire, as the air pressure in the tire increased, the pressure differential decreased and, as a result, the tire inflated at a slower rate. Accordingly, if one relies upon plaintiff's testimony, the tire would not have been inflated beyond 56 PSI the third time he inflated it. From this it follows that having a pressure regulator on the air compressor set to 56 would not have prevented the accident. Further, although Mr. Ketchman believes that the tire exploded off the rim at a pressure higher than 56 PSI, he acknowledges that the pressure would not have increased above 60 PSI. Mr. Thomas again alleges that if the tire was dangerously unstable at 60 PSI, it would not have been safe at 56 PSI, since 1 PSI to 4 PSI is insignificant for a properly designed tire. For this reason as well, having a pressure regulator set at 56 PSI would not have prevented the accident. He thus concludes that plaintiff was injured not because the air compressor was defective or unsafe in any way, but because plaintiff failed to follow proper safety precautions. Ingersoll also points out that in their opposition papers, plaintiffs attach information about air compressor in which it stated that "[g]eneral purpose regulators can be expected to maintain a pressure [*11]level within plus or minus 2-5 PSI range on average," which statement also supports the conclusion that an increase in pressure of 4 PSI is insignificant.

The Law

It is well established that summary judgment may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The party moving for summary judgment "bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law" (Holtz v Niagara Mohawk Power, 147 AD2d 857, 858 [1989]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see e.g. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Dat v City of New York, 271 AD2d 635, 635 [2000]).

Once such a showing has been established, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez, 68 NY2d at 324, citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). It is equally well settled that in making the determination of whether a movant has satisfied the requisite burden of proof, the nonmovant is entitled to the benefit of every favorable inference (see e.g. Negri v Stop & Shop, 65 NY2d 625 [1985]; Louniakov v M.R.O.D. Realty, 282 AD2d 657 [2001]). Finally, on such a motion, the court is not to determine credibility, but whether a factual issue exists (Capelin Assoc. v Globe Mfg., 34 NY2d 338 [1973]).

Turning to the specific issues raised herein, it is well settled that "[a] cause of action in strict products liability lies where a manufacturer places on the market a product which has a defect that causes injury" (Robinson v Reed-Prentice, 49 NY2d 471, 478 [1980], citing Codling v Paglia, 32 NY2d 330, 342 [1973]). "There are three distinct claims for strict products liability: (1) a mistake in manufacturing . . . (2) an improper design . . . or (3) an inadequate or absent warning for the use of the product'" (Rinaldi v EvenFlo Co., 75 AD3d 500, 501 [2010], quoting Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55, 61-62 [1980]). As is also relevant to the issues now before the court, " [i]n general . . . the strict liability concept of "defective design" [is] functionally synonymous with the earlier negligence concept of unreasonable designing'" (Denny v Ford Motor Co., 87 NY2d 248, 258 [1995] [citations omitted]; accord Adams v Genie Indus., 14 NY3d 535, 543 [2010]).

A products liability claim may also be predicated upon a design defect. 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 into the stream of commerce" (Robinson, 49 NY2d at 479.) "To establish a prima facie case in a strict products liability action predicated on a design defect, a plaintiff must show that the manufacturer marketed a product which was not reasonably safe in its design, that it was feasible to design the product in a safer manner, and that the defective [*12]design was a substantial factor in causing the plaintiff's injury" (Gonzalez v Delta Intl. Mach., 307 AD2d 1020, 1021 [2003], citing Voss v Black & Decker Mfg. Co., 59 NY2d 102 [1983]). In addition, "to establish a prima facie case, the plaintiff is required to show that the defectively designed product caused his injury and that the defect was the proximate cause of the injury" (Micallef v Miehle Co., 39 NY2d 376, 386-387 [1976]). "By proximate cause in the context of strict products liability for design defects, we mean that after weighing the various factors and concluding that the design was defective the jury has decided that the defect was a substantial factor in causing plaintiff's injury" (Voss, 59 NY2d at 109-110, citing Rainbow v Elia Bldg. Co., 79 AD2d 287, 289 [1981]; 1 Weinberger, New York Products Liability).

A plaintiff may also recover in strict products liability or negligence when a manufacturer fails to provide adequate warnings regarding the use of its product (see e.g. Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 297 [1992], citing Voss, 59 NY2d at 106-107; Torrogrossa v Towmotor Co., 44 NY2d 709 [1978]; Wolfgruber v Upjohn Co., 72 AD2d 59, 62 [1979], affd 52 NY2d 768 [1980]). A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its products of which it knew or should have known (see generally Rastelli, 79 NY2d at 297, citing Cover v Cohen, 61 NY2d 261, 275 [1984]; Alfieri v Cabot Corp., 17 AD2d 455, 460 [1962], affd 13 NY2d 1027 [1963]; Donigi v American Cyanamid Co., 57 AD2d 760 [1977], affd 43 NY2d 935 [1978]; 1 Weinberger, New York Products Liability § 18:04). "A manufacturer also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable" (Liriano v Hobart Corp., 92 NY2d 232, 237 [1998], citing Lugo v LJN Toys, 75 NY2d 850 [1990]; McLaughlin v Mine Safety Appliances Co., 11 NY2d 62 [1962]; 1 Weinberger, New York Products Liability, § 17:07, at 17-10 [2d ed]).

The law is also clear, however, "that there can be no duty to warn of a known hazard, since the plaintiff must establish that the failure to warn was a proximate cause of the injury" (Vail v KMart, 25 AD3d 549, 551 [2006] [citations omitted]). Stated differently, "the duty to warn of a product's danger does not arise when the injured is already aware of the specific hazard (see, Lombard v Centrico, Inc.), or the product-connected danger is obvious (see, Heller v Encore of Hicksville, 76 AD2d 917)" (Lonigro v TDC Elecs., 215 AD2d 534, 535-536 [1995]). "Thus, in appropriate cases, courts could as a matter of law decide that a manufacturer's warning would have been superfluous given an injured party's actual knowledge of the specific hazard that caused the injury" (Liriano, 92 NY2d at 241, citing Smith v Stark, 67 NY2d 693, 694 [1986]; Bigness v Powell Elecs., 209 AD2d 984, 985 [1994]; Baptiste v Northfield Foundry & Mach. Co., 67 NY2d 693 [1986]; Lombard v Centrico, Inc., 161 AD2d 1071, 1073 [1990]).

Hence, the "knowledgeable user" doctrine "relieves a manufacturer of liability on a failure to warn theory where the purchaser or user knows or has reason to know of the dangerous propensities of the product independent of the information supplied to him by the manufacturer or distributor" (Billsborrow v Dow Chemical, 177 AD2d 7, 16, fn [1992]). [*13]Finally, to succeed on a cause of action sounding in a failure to warn, the plaintiff has the burden of showing that had a different warning been given, he or she would not have used the product that caused his or her injury, i.e., under well settled law, to prove proximate cause, a plaintiff has the obligation to adduce proof that had a warning been provided, he or she would have read the warning and heeded it (see generally Mulhall v Hannafin, 45 AD3d 55, 60-61 [2007], citing Sosna v American Home Prods., 298 AD2d 158 [2002]; accord Reis v Volvo Cars, 73 AD3d 420 [2010]).

To succeed on a breach of warranty of merchantability claim, the plaintiff must establish that the product was not fit for the ordinary purposes for which such goods are used (Bradley v Earl B. Feiden, Inc., 8 NY3d 265, 273 [2007] [citations omitted]). More specifically, to establish a prima facie case with respect to liability on a cause of action to recover damages for breach of implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose, a plaintiff must demonstrate that the subject product had fundamental structural deficiencies and design flaws, which required extensive repairs and design modifications, making it unmerchantable and not fit for its particular purpose of reselling to the general public (see generally Bimini Boat Sales v Luhrs Corp., 69 AD3d 782, 783 [2010]). Further, even if a claim for breach of the implied warranty of merchantability and a claim in which a design defect claim premised on strict products liability is distinguishable from a design defect claim premised on breach of the implied warranty of merchantability, dismissal of the implied warranty of merchantability claim would be required unless there is evidence that the warranty was breached (see e.g. Perez v Radar Realty, 34 AD3d 305, 306 [2006]).

Finally, as is also relevant herein, the law is clear that one manufacturer has no duty to warn about another manufacturer's product when the first manufacturer produces a sound product which is compatible for use with a defective product of the other manufacturer (Rastelli, 79 NY2d at 297-298; accord Rabon-Willimack v Robert Mondavi Corp., 73 AD3d 1007 [2010]).

Discussion

Ingersoll has made a prima facie showing that plaintiffs have failed to establish a cause of action sounding in products liability. In so holding, the court notes that although plaintiffs seek recovery based upon numerous theories, their argument is premised upon the contention that Ingersoll is liable for plaintiff's injury because the subject accident would not have occurred if the air compressor that plaintiff was using had been equipped with a pressure regulator and an in-line pressure gauge. The facts established herein, when viewed in the light most favorable to plaintiff, establish that this was not the case. Instead, plaintiff was injured when he inflated a defective tire without seating it properly on the rim and/or without taking proper safety precautions. More specifically, the x-rays taken of the tire by plaintiffs' expert, Mr. Rair, establish that it had a bead break. The affidavits of Ingersoll's experts, Mr. Thomas, Mr. Follen and Mr. Mauk, establish that the subject tire was engineered to withstand a pressure of 308 PSI, far above the pressure of 60 PSI to which plaintiff claims [*14]that he inflated the tire. More significantly, the air compressor that plaintiff was using on the day of the accident could not possibly have over inflated the tire, since it did not produce air pressure in excess of 175 PSI. Thus, without regard to whether the air compressor had a pressure regulator and/or an in-line pressure gauge, the accident would not have been avoided, since it must be concluded that plaintiff was injured when he inflated a defective tire without taking proper safety precautions. As noted above, Ingersoll cannot be held liable for a defective product produced by another manufacturer (see e.g. Rastelli, 79 NY2d at 297-298; accord Rabon-Willimack, 73 AD3d 1007).

The affidavits of Mr. Ketchman fail to refute Ingersoll's prima facie showing that the sole proximate cause of plaintiff's injuries was his own negligence in failing to properly seat the tire on the rim and failing to follow accepted safety procedures (see generally Bruno v Thermo King, 66 AD3d 727, 729 [2009]). In this first instance, the probative value of Mr. Ketchman's opinions is severely undermined by the fact that he changed his opinion during the course of this action in an effort to oppose whatever arguments plaintiffs raised, without any explanation or reason (see generally People v Phipps, 220 AD2d 238 [1995], lv denied 87 NY2d 849 [1995] [the court had an obligation to weigh the conflicting opinions of the experts and was not obligated to accept the latest opinion of the expert who had changed his mind]; Imaging Intl. v Hell Graphic Sys., 17 Misc 3d 1123A [2007], appeal dismissed 60 AD3d 450 [2009] [the court found the expert's testimony unreliable because he changed his opinion without any analytical justification for doing so]).[FN3] In addition, Mr. Ketchman fails to establish that Ingersoll received any prior complaints with regard to the use of the air compressor (see generally Langer v. BJ's Wholesale Club, 39 AD3d 714, 715 [2007]), which also serves to undermine plaintiffs' claim that air compressor was unsafe as designed.

Moreover, [a]n expert's affidavit offered as the only evidence to defeat summary judgment must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor" (Adamy v Ziriakus, 92 NY2d 396, 402 [1998] [citation omitted]):

"[A]lthough CPLR 4515 permits an expert witness to state an opinion without specifying the data upon which it is based, it does not avoid the necessity for presentation of such data. Its purpose is, rather, to make the expert's presentation more readily understandable by permitting the opinion to be stated on direct, and leaving the development of the data on which it is based for cross-examination (Richardson, Evidence § 370 [Prince 10th ed]). It does not, however, change the basic principle that an expert's opinion not based on facts is worthless (Cooke v Bernstein, 45 AD2d 497, 500; see, Tarlowe v Metropolitan Ski Slopes, 28 NY2d 410)." [*15]

(Caton v Doug Urban Constr. Co., 65 NY2d 909, 911 [1985]).

Thus, unless an expert's opinion is supported by foundational facts, such as the results of actual testing, a deviation from industry standards, or statistics showing the frequency of consumer complaints or injuries resulting from the alleged product defect, it lacks sufficient probative value to raise a triable issue of fact as to whether the subject product was not reasonably safe in its design (see e.g. Rabon-Willimack, 73 AD3d at 1009-1010; Martinez v Roberts Consol. Indus., 299 AD2d 399, 399-400 [2002]). In this case, none of Mr. Ketchman's affidavits have such a basis, and are accordingly insufficient to raise an issue of fact sufficient to defect Ingersoll's prima facie showing of entitlement to summary judgment.

Also relevant is that Mr. Ketchman fails to present evidence that he has any practical experience or personal knowledge in the area of the design of tires or air compressors (see generally O'Boy v Motor Coach Indus., 39 AD3d 512 [2007]; D'Auguste v Shanty Hollow, 26 AD3d 403 [2006]; Martinez, 299 AD2d 399). The court further notes that Mr. Ketchman's affidavits provide no evidence of a regulation or industry-wide standard in support of plaintiffs' claim of a design defect (see generally Ver-eczkey v Sheik, 57 AD3d 527 [2008]). More specifically, in response to Ingersoll's assertion that there are no controlling industry standards, Mr. Ketchman points to OSHA Regulation § 1910.177, which pertains to safety procedures for inflating tires. "OSHA regulations are not applicable here . . . since those regulations generally govern employee/employer relationships, not strict products liability actions between employees and manufacturers" (Jemmott v Rockwell Mfg. Co., 216 AD2d 444, 445 [1995], citing Berzaghi v Maislin Transp., 115 AD2d 679 [1985]).

In addition, even if Mr. Ketchman's affidavit were considered, and even assuming, arguendo, that plaintiffs had established proximate cause, Ingersoll's motion for summary judgment would still be granted, since plaintiff failed to come forward with competent evidence demonstrating that the air compressor had a flaw which caused the accident or, in the alternative, demonstrating that the machine did not perform as intended while excluding all possible causes for the malfunction not attributable to the defendant (see generally Wallace v Sitma U.S.A., 77 AD3d 918, 918-919 [2010], citing Speller v Sears, Roebuck & Co., 100 NY2d 38, 42 [2003]; Riglioni v Chambers Ford Tractor Sales, 36 AD3d 785, 786 [2007]; D'Auguste, 26 AD3d at 404; see also Koslow v Zenith Electronics, 45 AD3d 810, 810-811 [2007] [defendant's motion for summary judgment was denied where defendant failed to establish that the subject product performed as intended or that there existed a likely cause of the accident not attributable to any defect in the design or manufacturing of the product]).

In the first instance, it is beyond dispute that plaintiff and Whitey's were aware that the Ingersoll air compressor had to have a valve of some sort annexed to the hose in order to inflate tires, since plaintiff cobbled together a connecting hose, using hoses and valves that were on the truck. Accordingly, it must be concluded that Whitey's was in the best position to determine what its needs were and to convey those needs to Murlynn, the distributor from whom it purchased the compressor, since Ingersoll had no knowledge with regard to how [*16]Whitey's intended to use the compressor (see generally Warlikowski v Burger King, 9 AD3d 360, 361-362 [2004]). Under the circumstances of this case, Ingersoll also established that the air compressor was fit for the ordinary purpose for which it was used, since it provided a reliable flow of air (see generally Denny, 87 NY2d at 258-259; J.C. Constr. Mgmt. v Nassau-Suffolk Lumber & Supply, 15 AD3d 623 [2005]).

Similarly, plaintiff cannot succeed on his failure to warn cause of action. In this regard, plaintiff's deposition testimony revealed that he was an experienced tire mechanic who had worked in the field for approximately 30 years and that he had used the subject air compressor without incident for the prior eight years. More importantly, he testified that he was aware that inflating tires was dangerous and could result in death, and that he had used a tire cage for safety reasons before he started to work for Whitey's. " There is no duty to warn of an open and obvious danger of which the product user is actually aware or should be aware as a result of ordinary observation or as a matter of common sense'" (Fitzgerald v Federal Signal Corp., 63 AD3d 994, 996 [2009], quoting O'Boy, 39 AD3d at 514). Stated differently, " [w]here the person who would benefit from a warning is already aware of the specific hazard, the manufacturer cannot be held liable for failing to warn of that known hazard'" (Stalker v Goodyear Tire & Rubber Co., 60 AD3d 1173, 1175-1176 [2009], quoting Steuhl v Home Therapy Equip., 51 AD3d 1101, 1103 [2008]). In so holding, it must also be emphasized that the tire itself warned plaintiff that a tire changer or safety cage, an extension air hose with an in-line gauge and clip-on air chuck should always to used when mounting a tire to avoid personal injury. Thus, there is no basis upon which the court can conclude that plaintiff would have better heeded a warning attached to the air compressor (see generally Perez v Radar Realty, 34 AD3d 305, 306 [2006], citing Sosna v American Home Prods., 298 AD2d 158 [2002]).

Finally, plaintiffs offer no basis that would support their claim of breach of warranty (see generally Bradley, 8 NY3d at 273; Bimini Boat Sales, 69 AD3d at 783; Perez, 34 AD3d at 306).

Accordingly, that branch of Ingersoll's motion seeking dismissal of the complaint as against it is granted.

Dismissal of Cross Claims and Counterclaims

The Parties' Contentions

In support of that branch of its motion seeking to dismiss Murlynn's and Whitey's claims for indemnification and contribution, Ingersoll first argues that neither refers to a contract upon which an indemnification claim may be premised (Aiello v Rockmor Elec. Enters., 255 AD2d 470 [1998]). Ingersoll also argues that neither Murlynn nor Whitey's is entitled to implied indemnification, since the predicate for an award of common law indemnification is vicarious liability without actual fault on the part of the proposed indemnitee, so that a party who participated in any degree in the wrongdoing will not receive the benefit of the doctrine (see e.g. Gap v Fisher Dev., 27 AD3d 209 [2006], citing Mathis v Central Park Conservancy, 251 AD2d 171, 172 [1998]). In so arguing, Ingersoll further [*17]contends that there is no relationship between it and either Murlynn or Whitey's that allows the application of the doctrine. Morever, both Murlynn and Whitey's are sued for their own negligence. More specifically, Ingersoll has alleged that Murlynn sold the air compressor to Whitey's without providing it with sufficient instructions and warnings for the purposes for which it was to be used and that Whitey's failed to provide plaintiff with appropriate safety devices, i.e., a tire cage, hoses, regulators and gauges; failed to properly instruct him with regard to how to properly inflate a tire on a rim; and violated OSHA regulations.

Ingersoll goes on to argue that the right to contribution arises when " two or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owed to the injured person'" (Garrett v Holiday Inns, 58 NY2d 253, 258 [1983], quoting Smith v Sapienza, 52 NY2d 82, 87 [1981]; Holodook v Spencer, 36 NY2d 35 [1974]; Rogers v Dorchester Assoc., 32 NY2d 553 [1973] . "The critical requirement for apportionment . . . is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought" (Nassau Roofing & Sheet Metal Co. v Facilities Dev., 71 NY2d 599, 603 [1988]).

Whitey's does not oppose the demand for dismissal of these counterclaims and cross claims, since it joined in Ingersoll's motion, without submitting any independent papers. Murlynn did not submit any papers at all.

Discussion

Inasmuch as neither Murlynn nor Whitey's opposed this demand for relief, this branch of Ingersoll's motion can be granted without opposition. Moreover, as argued by Ingersoll, neither Murlynn nor Whitey's rebutted Ingersoll's prima facie showing that they also shared responsibility for plaintiff's injuries. Finally, as was held by the court above, there is no evidence that any of the breaches by plaintiffs as alleged against Ingersoll proximately caused any of plaintiff's

Accordingly, all counterclaims and cross claims asserted against Ingersoll are dismissed.

Conclusion

Ingersoll's motion is granted in its entirety; the complaint, counterclaims and cross claims against are dismissed. Any remaining claims shall be severed and shall continue.

The foregoing constitutes the order and decision of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Because it is irrelevant to a determination of the issues now before the court whether the pressure of the tire when it exploded was 30 PSI or 45 PSI when plaintiff last checked it, the remainder of this decision shall assume that the tire pressure reached approximately 60 PSI, which account of the facts is more favorable to plaintiff.

Footnote 2: A tire bead is the edge of the tire that attaches to and "seats" against the wheel rim during inflation.

Footnote 3: Although the affidavit that Mr. Ketchman submitted in opposition to Ingersoll's motion is based upon the x-ray of the tire taken on April 1, 2011, he offers no explanation as to why the tire was not x-rayed until Ingersoll made its motion for summary judgment.