Delgado v Markwort Sporting Goods Co.

[*1] Delgado v Markwort Sporting Goods Co. 2006 NY Slip Op 52007(U) [13 Misc 3d 1227(A)] Decided on October 20, 2006 Civil Court Of The City Of New York, New York County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2006
Civil Court of the City of New York, New York County

Miriam Delgado, Plaintiff,

against

Markwort Sporting Goods Company, Mason City Tent and Awning Co. and IFT Industries, Ltd., Defendants. Markwort Sporting Goods Company, Third-Party Plaintiff, Mason City Tent and Awning Co. and IFT Industries, Ltd., Third-Party Defendants.



Markwort Sporting Goods Company, Third-Party Plaintiff, -against-

against

Mason City Tent and Awning Co. and IFT Industries, Ltd., Third-Party Defendants.



7374 / 97

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219(a) of the papers considered on Defendants' motions for an order: (1) pursuant to CPLR 4401, setting aside the jury's verdict on liability at the trial of this action on May 5, 2006, entering judgment as a matter of law in favor of defendants, and dismissing Plaintiff's Complaint; and (2) pursuant to CPLR 4404(a), setting aside the jury's verdict on liability and damages and granting a new trial on all issues or, in the alternative, ordering a new trial solely on the issue of Plaintiff's damages:

Notice of Post-Trial Motion to Set Aside the Verdict and Affirmation in Support of Post-Trial Motion by Defendants/Third Party Defendants Mason City Tent and Awning Co. and IFT Industries, Ltd.

Exhibits 1-3

Notice of Motion and Affirmation in Support of Motion by Markwort Sporting Goods Company

Exhibits A-C

Plaintiff's Memorandum of Law in Opposition to Defendants (sic) Post-Trial Motions

Reply Affirmation of Defendants/Third Party Defendants Mason City Tent and [*2]Awning Co. and IFT Industries, Ltd.

Reply Affirmation of Markwort Sporting Goods Company

Trial Transcript

Plaintiff was represented by Edward J. Anthony, Esq. and Laura Gentile, Esq. of Gentile & Associates; Defendant Markwort Sporting Goods Company was represented by Warren T. Harris, Esq. of the Law Office of Michael F.X. Manning; and Defendants Mason City Tent and Awning Co. and IFT Industries, Ltd. were represented by Gregg D. Weinstock, Esq. and William D. Buckley of Garbarini & Scher, P.C.

On October 9, 1994, plaintiff Miriam Delgado was injured during a game of flag football when, as she contended and the jury accepted, her right ring finger was caught in the D-ring fastening mechanism of an opposing player's flag-football belt, manufactured by defendant Mason City Tent and Awning Company and distributed by defendant Markwort Sporting Goods Company. The jury also agreed with Ms. Delgado that the Mason City/Markwort flag-football belt was defectively designed because the D-ring fastening mechanism was not reasonably safe, and awarded her damages of $1.6 million for past and future pain and suffering. The Court reserved decision on Defendants' respective motions for judgment as a matter of law at the end of Plaintiff's case and the conclusion of the evidence (see CPLR 4401), and on Defendants' post-verdict motions for the same relief (see CPLR 4404[a].) The Court now grants those motions.

The general standards governing the Court's determination of Defendants' motions are familiar. "A jury verdict rests on legally insufficient evidence where there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [individuals] to the conclusion reached by the jury on the basis of the evidence presented at trial' . . . [T]his inquiry is similar to that of a trial judge determining to direct a verdict . . . If there is a question of fact and it would not be utterly irrational for a jury to reach the result it has determined upon . . . the court may not conclude that the verdict is as a matter of law not supported by the evidence' . . ." (Soto v New York City Transit Authority, 6 NY3d 487, 492 [2006] [quoting Cohen v Hallmark Cards, Inc., 45 NY2d 493, 499 (19780)].)

The evidence must be considered in the light most favorable to the plaintiff, and she must be credited with the most favorable inferences. (See Parvi v City of Kingston, 41 NY2d 553, 554 [1977]; Poulakis v Town of Orangetown, 29 AD3d 882, 883 [2006].)

"Under New York law, a design defect may be actionable under a strict products liability theory if the product is not reasonably safe." (Denny v Ford Motor Co., 87 NY2d 248, 256-57 [1995].) Liability is determined by a "negligence-like risk/benefit" inquiry (see id., at 258) that includes [*3] "such factors as (1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product 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 awareness of the product's potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer's ability to spread the cost of any safety-related design changes." (Id., at 257.)

"An additional pertinent factor that may be taken into account is the likely effects of [liability for failure to adopt] the alternative design on . . . the range of consumer choice among products'." (Scarangella v Thomas Built Buses, Inc., 93 NY2d 655, 659 [1999] [quoting Restatement (Third) of Products Liability § 2, comment f].)

The Court notes that in a negligent design case the Court of Appeals held that "the patent-danger doctrine should not, in and of itself, prevent a plaintiff from establishing his case," stating that "the openness and obviousness of the danger should be available to the defendant on the issue of whether plaintiff exercised that degree of reasonable care as was required under the circumstances." (See Micallef v Miehle Co., Division of Miehle-Goss Dexter, Inc., 39 NY2d 376, 387 [1976].) Nonetheless,"the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user" appears among the risk/utility factors that inform the design defect determination in a strict liability case. (See Denny v Ford Motor Co., 87 NY2d at 257.) This Court need not attempt to resolve the contradiction, if there is one, because in this case the jury ultimately determined that Ms. Delgado was free of contributory fault in failing to appreciate any danger presented by the D-ring design, and on these motions the Court must accept that determination.

"The plaintiff, of course, is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner." (Voss v Black & Decker Manufacturing Co., 59 NY2d 102, 108 [1983].) "Although in a strict liability case alleging design defect it is generally for the jury to weigh the product's risks against its utility and to determine whether the product was unreasonably dangerous . . ., it is plaintiff's burden in the first instance to make out a prima facie case." (Cervone v Tuzzolo, 291 AD2d 426, 427 [2d Dept 2002].) "Where a court, after considering the relevant facts and risk-utility factors, determines that the plaintiff has failed to make out a prima facie case of a design defect, the claim should not be submitted to the jury." (Scarangella v Thomas Built Buses, Inc., 93 NY2d at 669; see also Wengenroth v Formula Equipment Leasing, Inc., 11 AD3d 677, 678-79 [2d Dept 2004]; Giunta v Delta International Machinery, 300 AD2d 350, 353 [2d Dept 2002]; Fallon v Clifford B. Hannay & Son, Inc., 153 AD2d 95, 99 [3d Dept 1989].)

The Mason City/ Markwort flag-football belt is a webbed belt with two "D-rings" at one end; a "D-ring" is simply a metal ring that resembles the letter "D." Attached to the belt are two plastic loops that can slide along the belt; the fabric "flags" are affixed to the plastic "sliders" by [*4]Velcro. During play, removal of a flag from the belt of the runner in possession of the ball works as a tackle, and brings the down to an end. The uncontradicted evidence showed that the D-ring flag-football belt has been produced and sold at least since the early 1950s, and is still produced and sold today.

There is also no dispute that alterative designs for flag-football belts have been available since the early 1980s, approximately a decade before the game during which Ms. Delgado was injured. The alternative designs share two related characteristics: the "flags" are permanently attached to the webbed belt, and the fastening mechanism is an alligator clip or some other device that does not utilize D-rings, and that opens when sufficient force is applied to one of the flags.

Indeed , at the time Ms. Delgado was injured, Defendants were marketing both the D-ring flag-football belt that the jury found defective, as well as "quick release" flag-football belts that were equipped with a different fastening mechanism. The evidence as to relative cost of the D-ring belt and the quick-release belts was contradictory and unclear as to time periods, but the Court adopts the testimony cited by Plaintiff's counsel in his summation. Mason City charged Markwort $1.67 for each D-ring belt, and $2.10 for the quick-release belt; Mason City's costs were approximately half the price to Markwort. There was no evidence as to the price Markwort charged its dealers, or of the cost to the ultimate purchaser/user.

According to Charles Gasswint, Mason City's President, Mason City produced and marketed the quick-release belt to satisfy the preference of the "collegiate market"; other users, including lower-level schools, the armed forces, and prisons, continued to purchase the D-ring belt. There was no evidence that the preference of the "collegiate market" for the quick-release design was grounded in safety. (See Delgado v Markwort Sporting Goods Co., 11 Misc 3d 1072[A], 2006 Slip Op 50528[U] *4-*5 [Civ Ct, Kings County].) The most that can be said of the evidence on utility is that some users of flag-football belts find the quick-release mechanism more useful, while other users prefer the D-ring design. Plaintiff made no attempt to quantify any preference of the alternative design.

Plaintiff's primary, if not exclusive, evidence of design deficiency came from the testimony of Dr. Bruce Maurer, currently Associate Director, Department of University Recreation and Intramural Sports, the Ohio State University. Prior to trial, Defendants moved to preclude Dr. Maurer's testimony at trial because of his lack of experience as a designer or manufacturer of flag-football belts, and because he did not perform any testing or studies on the Mason City/Markwort belt or any similarly-designed D-ring belt, or any studies on injuries resulting from use of a D-ring belt. After a hearing the Court concluded that, by reason of both his training and practical experience with the use of flag-football belts, Dr. Maurer was qualified to testify as to the risk of danger presented by the Mason City/Markwort belt and the risk of danger presented by other available flag-football belts. (See id., at *5-*8.) The Court specifically noted, however, that it was not "reaching any conclusion on whether Dr. Maurer's testimony standing alone would satisfy Plaintiff's prima facie burden." (See id., at *8.) [*5]

Dr. Maurer testified at trial, based upon his training and experience, including observation of "tens of thousands" of flag-football games, that the Mason City/Markwort belt was not reasonably safe, and that the quick-release belts were of safer design. The only stated basis, however, for his opinion that the D-ring belt was not reasonably safe was that it presented an "opportunity" for finger entrapment or entanglement and a "potential to cause harm." And to the substantial extent that Dr. Maurer's opinion was based on his experience and observation, he acknowledged that most of the tens of thousands of games he observed were played with quick-release belts and only a "limited number" were played with a D-ring belt. However many that "limited number" represent, Dr. Maurer never observed anyone's finger become entrapped or entangled in the D-rings, and he provided no other evidence that, except for this case, it had ever happened either before or since.

There are numerous opinions in which appellate courts, ruling on motions for summary judgment or directed verdict, have found the plaintiff's expert's opinion to lack "probative value, since it was not supported by foundational facts, such as the results of actual testing of the [product], a deviation from industry standards, or statistics showing the frequency of consumer complaints or injuries resulting from the alleged defective product." (See D'Auguste v Shanty Hollow Corp., 26 AD3d 403, 405 [2d Dept 2006] [ski bindings]; see also Canales v Hustler Manufacturing Co., 12 AD3d 392, 393 [2d Dept 2004] ["garbage sorting structure"]; Castro v Delta International Machinery Corp., 309 AD2d 827, 828 [2d Dept 2003] [drill press]; Martinez v Roberts Consolidated Industries, Inc., 299 AD2d 399, 399-400 [2d Dept 2002] [carpet-cutting knife]; Shea v Sky Bounce Ball Co., Inc., 294 AD2d 486, 487 [2d Dept 2002] [stickball bat]; Cervone v Tuzzolo, 291 AD2d at 427 [dinette table].)

The Court is aware of opinions stating that "[w]here . . . a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is for the jury to make the required risk-utility analysis." (See Wengenroth v Formula Equipment Leasing, Inc., 11 AD3d at 680; see also Milazzo v Premium Technical Services Corp., 7 AD3d 586, 588 [2d Dept 2004].) But those statements must be limited to cases in which the expert's opinion is supported by "foundational facts" sufficient to give it probative value.

Even if, however, Dr. Maurer's opinion is given probative value, it is insufficient to establish prima facie that the D-ring design was not reasonably safe. An "opportunity" or "potential" for harm is not the same as a "substantial likelihood of harm." (See Voss v Black & Decker Manufacturing Co., 59 NY2d 108; Martinez v Roberts Consolidated Industries, Inc., 299 AD2d at 400; Fallon v Clifford B. Hannay & Son, Inc., 153 AD2d at 101; Arnold v Krause, Inc., 232 FRD 58, 72 [WDNY 2004]; G.E. Capital Corp. v A.O. Smith Corp., 2003 US Dist LEXIS 11178, at *11, *12-13, 2003 WL 214901, *4 [SDNY]; Gonzalez v Morflo Industries, Inc., 931 F Supp 159, 165 [EDNY 1996].)

Dr. Maurer provided no evidence as to "the magnitude and seriousness of the danger in using the product." (See Fallon v Clifford B. Hannay & Son, Inc., 153 AD2d 99.) Accepting, as [*6]the jury did, the seriousness of the injury suffered by Ms. Delgado, there was no opinion offered as to the nature and degree of injury presented by the D-ring design if finger entrapment or entanglement were to occur.

Plaintiff attempts to avoid the deficiencies in Dr. Maurer's testimony by arguing that "demonstration of the dangerousness of the Double-D ring does not even require expert opinion." (See Plaintiff's Memorandum of Law in Opposition to Defendants [sic] Post-Trial Motions, at 21.) But the cases cited in support of the argument (see Brown v City of New York, 309 AD2d 778 [2d Dept 2003]; Bermeo v Rejai, 282 AD2d 700 [2d Dept 2001]) are not design defect, or even products liability, cases. And it is difficult to agree that a jury would be competent to make the requisite risk/utility analysis as to a flag-football belt without the aid of expert opinion, when they were not deemed competent to do so when the product was a stickball bat (see Shea v Sky Bounce Ball Co., Inc., 294 AD2d 486), or a dinette table (see Cervone v Tuzzolo, 291 AD2d 426.) In any event, even a jury's own assessment must be based on evidence. Plaintiff may be correct as a general proposition that "[l]iability for strict product liability does not require evidence of prior reported claims." (See Plaintiff's Memorandum of Law in Opposition to Defendants [sic] Post Trial Motions, at 16.) But that is not to say that liability does not require evidence of substantial likelihood of harm.

Defendants offered the expert testimony of Alan Butler, a consultant in physical education and sports recreation. Mr. Butler testified to his experience with flag football in schools, primarily elementary through high school, since the mid-1950s, and to his use of D-ring flag-football belts for over 30 years, "somewhere between 90 and a hundred thousand usages." Mr. Butler never witnessed any finger entrapment in the D-ring.

Mr. Butler's testimony is described, not to be weighed against Plaintiff's evidence, but to emphasize the glaring absence of evidence as to any likelihood of harm, and the continued preference for the D-ring belt among some users. The D-ring flag-football belt has been in use for more than 50 years, approximately 40 years to the date Ms. Delgado was injured, and more than a decade since. An incalculable number of flag-football games have been played during that time with D-ring belts, but there is no evidence in the record of any finger entrapment or entanglement, or any other injury resulting from the D-ring design, other than for Ms. Delgado's.

The absence of reported injury does not, of course, establish that no injury has ever occurred. It may be that minor injury, particularly in the context of sports activity, would be accepted and forgotten. Even so, however, the implication for an assessment of the severity of the likely injury is obvious, particularly in the absence of expert evidence of likely severity.

Plaintiff's evidence of defect, at bottom, amounts to little more than the availability of a safer alternative, without any evidence as to the consequences of the difference in price. Perhaps the lower price of the D-ring belt explains the continual preference for it among some users. Where the likelihood of serious injury is apparent, evidence of a feasible alternative design may be enough to present a question of fact for the jury. (See Giunta v Delta International [*7]Machinery, 300 AD2d 350, 352 [2d Dept 2002] [table saw]; Doty v Navistar International Transportation Corp., 219 AD2d 32, 37 [4th Dept 1996] [combine].) But "a producer is not an insurer and its product need not be accident proof" (Caprara v Chrysler Corp., 52 NY2d 114, 123-24 [1981]); its duty is to design a product that is "reasonably safe", not the "safest possible" (see Cover v Cohen, 61 NY2d 261, 272 [1984].) Where, as here, there is no evidence that any injury, never mind serious injury, was likely, the availability of a safer alternative alone is not sufficient to support a finding of design defect.

The only inference from the evidence at trial is that the risk of injury presented by the D-ring design of the Mason City/Markwort flag-football belt was "negligible," akin to the likelihood that lightning would strike a camping tent equipped with metal poles. (See Kelly v Academy Broadway Corp., 206 AD2d 794, 795 [3d Dept 1994].) As a matter of law, on the evidence presented the jury could not find that the D-ring design was not reasonably safe, and its determination, in effect, that the Mason City/Markwort flag-football belt must be removed from the range of choice in the market is not supported by the evidence.

Defendants' motions for judgment as a matter of law are granted. Judgement is awarded to Defendants, dismissing the Complaint.

October 20, 2006

Judge, Civil Court