Donuk v Sears, Roebuck & Co.

[*1] Donuk v Sears, Roebuck & Co. 2007 NY Slip Op 51118(U) [15 Misc 3d 1142(A)] Decided on May 31, 2007 Supreme Court, Kings County Starkey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 31, 2007
Supreme Court, Kings County

Mustafa Donuk, Plaintiff,

against

Sears, Roebuck and Co., Defendant.



5834/2004



For the Plaintiff(s):

AKIN & SMITH, LLC.

305 BROADWAY, SUITE 1101

NEW YORK, NEW YORK 10007

For the Defendant(s):

McCARTER & ENGLISH, LLP.

245 PARK AVENUE

NEW YORK, NEW YORK 10167

ATTORNEYS FOR DEFENDANT

James G. Starkey, J.

By notice of motion dated February 27, 2007, Plaintiff MUSTAFA DONUK, seeks to renew and reargue the decision of this Court dated February 7, 2007, which granted Defendant SEARS, ROEBUCK AND CO.'s summary judgement motion dated November 9, 2006, which dismissed plaintiff's complaint in its' entirety.

The parties appeared in Part 6 of this Court for oral argument on the motion to renew and reargue on April 4, 2007, and decision was reserved. After reconsideration, the Court, sua sponte, vacates the prior decision dated February 7, 2007, and substitutes this decision in its place, resolving both the motion to renew and reargue as well as the original motion for summary judgment.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff commenced this action for personal injuries on February 23, 2004 by filing a summons and verified complaint. Issue was joined by defendant's verified answer dated March 31, 2004 and filed with the County Clerk that same day. [*2]

Plaintiff's complaint and responses to defendant's interrogatories allege that on December 9, 2003, plaintiff was injured when he placed his right hand into the discharge chute of a Craftsman Snow-Thrower Model Number 536.886621 owned by his employer, Winner Realty/United Management, while removing snow in the course of his employment as a building superintendent, a task he had performed repeatedly over a nine year span using the same device. The snow thrower at issue was manufactured by Murray Outdoor Products on or about October 4, 1994, for exclusive retail sale by defendant and sold to plaintiff's employer soon thereafter.

As plaintiff was attempting to remove or unclog an accumulation of snow and/or ice within the snow thrower's discharge chute, while the machine was on, his fingers came into contact with the 12" impeller blade causing the complete amputation of the second and third fingers, and a partial amputation of the fourth finger of his right hand. Plaintiff commenced this suit seeking recovery on the theories of breach of warranties, negligence and strict products liability.[FN1]

LAW AND APPLICATION

Summary judgment is a drastic remedy, and should be granted only when it is clear that no triable issues of fact exist. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (1986). The burden is upon the moving party to make a prima facie showing that the movant is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. Giuffrida v. Citibank, 100 NY2d 72, 760 NYS2d 397, 790 NE2d 772 (2003). A failure to make that showing requires the denial of the motion, regardless of the adequacy of the opposing papers. Ayotte v. Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez v. Prospect Hospital, supra at 324. The Court's role in deciding summary judgment is that of issue finder, not issue resolution. Kriz vs. Schum, 75 NY2d 25, 33, 550 NYS2d 584, 549 NE2d 1155 (1989).

Plaintiff's first cause of action is for breach of express and implied warranties of merchantability (UCC Section 2-313) and fitness for a particular purpose (UCC Section 2-314). As noted above, it is undisputed that the snow thrower model at issue was originally manufactured on or about October 4, 1994 and purchased soon thereafter by the plaintiff's employer. It is also undisputed that the accident occurred on December 9, 2003, approximately nine years after manufacture of the snow thrower, and that during that nine year period, plaintiff had used this particular snow thrower repeatedly in the course of his employment.

UCC 2-725(1) sets forth a four year statute of limitations on breach of warranty actions, commencing from the date of delivery. UCC 2-725(2) also provides that a "cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach." Thus, plaintiff's first cause of action for breach of express and implied warranties of merchantability (UCC 2-313 & 314) and fitness for a particular purpose (UCC 2-315) must be dismissed as time barred. See, Heller vs. U.S. Suzuki Motor, 64 NY2d 407, 488 NYS2d 132, 477 [*3]NE2d 434 (1985).

Plaintiff's second cause of action is for negligence in the manufacture, production, and distribution of the snow thrower. In order to prove negligence, plaintiff must show a duty on the part of defendant and a breach of thereof as the proximate cause of plaintiff's injury. Here proximate cause cannot be demonstrated since it was plaintiff's own action of knowingly placing his right hand into the discharge chute containing the impeller blade that was the proximate cause. See, Sorrentino vs. Paganica, 18 AD3d 858, 796 NYS2d 667 (2nd Dept. 2004). Therefore, plaintiff's second cause of action must also be dismissed.

Plaintiff's third cause of action claims strict products liability for failure to warn of the dangers associated with the discharge chute. But there were three (3) very prominent warnings referring to those dangers. The warnings were colorful red, white and black safety signs which included the word "DANGER." It is undisputed that these warnings were in compliance with American National Standards Institute (ANSI) standards at the time of manufacture, and although plaintiff argues that these warnings were not placed on the actual discharge chute, they were nonetheless conspicuously placed on the equipment. Further, "when a warning would have added nothing to the user's appreciation of the danger, no duty to warn exists as no benefit would be gained by requiring a warning." Liriano v. Hobart Corp., 92 NY2d 232, 700 NE2d 303 (1998). There is no liability for failure to warn where, as a matter of common sense, risks and dangers are obvious and would ordinarily be seen and appreciated by those who would be expected to use the product. Therefore, plaintiff's third cause of action for failure to warn must be dismissed. Id. at 242-243. Plaintiff's fourth cause of action is also based on strict products liability, generally

alleging defective design and manufacture of the snow thrower. In opposition to the original motion, and in support of the motion to reargue, plaintiff presented the affidavit of his expert witness. That affidavit raised three separate claims concerning design and manufacture.

The first claim related to ANSI regulations at the time of manufacture which called for the impeller blade to stop within five seconds after the release of the auger control. According to the same expert, the impeller blade during his inspection "sporadically crept' and rotated" after the auger control was released. His affidavit is insufficient to raise a triable issue of fact on this issue because it fails to state that the rotation noted was not attributable to routine wear and tear and/or failure of the owner (plaintiff's employer) to properly maintain it during the nine years of use [FN2].

The second claim alleges that a "tool" or miniature "snow shovel" should have been provided to remove clogged snow from the discharge chute. The expert asserts that the failure of defendant to provide such a tool was a design defect, but there is no basis for that conclusion in the papers submitted. The deposition of defendant's expert, the former supervising engineer for defendant, is devoid of any questioning by plaintiff's counsel as to consideration of such a device [*4]when the snow thrower was in its design phase and, though the expert's affidavit refers to "materials" concerning such a "snow shovel", no such material was annexed to either set of papers submitted by plaintiff [FN3].

The third and final claim asserted that an "M" wire should have been placed inside the discharge chute above the impeller blade, thereby making it difficult to insert one's hand with extended fingers to make contact with the impeller blade. As to this claim, the undisputed evidence establishes that the snow thrower involved here was manufactured on or about October 4, 1994; that defendant's expert was involved in the design of snow throwers since 1963 and a charter member of the B71.3 Committee of the American National Standards Institute (ANSI), the committee that promulgated the relevant safety standards in February 1975; that he remained on that committee until March 1978 and was responsible for the manufacturer's compliance with the ANSI standards until his retirement in 1996.

It was further undisputed that while some manufacturer's used an "M" wire in their products in the 1960's and early 1970's, most removed them after the B71.3 safety standards were published since (a) the standards did not call for the use of an "M" wire, relying instead on a requirement for an operator presence impeller control (a "dead man's" cut off switch), (b) an "M" wire would not prevent the insertion of a hand into the chute and (c) an "M" wire would hinder the discharge of the snow under certain snow conditions, causing the chute to clog (the only reason for the operator to put his hand in the impeller area in the first place).

While plaintiff's expert suggested that an "M" wire caused no "significant" increase in chute clogging, he offered no source for the assertion and revealed no background or experience with the design or use of snow throwers. Further, at no point did he refer to any ANSI standards requiring an "M" wire (though he did acknowledge the authority of the ANSI standards in discussing the "dead man's" cut off switch requirement). See McAllister v. Raymond Corp., 36 AD3d 768, 827 NYS2d (2nd Dept. 2007).

Thus, the question for a jury whether, after weighing the evidence and balancing the product's risks against its utility and cost, it can be concluded that the product as designed is not reasonably safe has been resolved against plaintiff's position. See Voss v. Black & Decker Mfg., 59 NY2d 102, 109, 463 NYS2d 398, 450 NE2d 204 (1983). The evidence clearly establishes (1) the obvious utility of the product to the public as a whole and the individual user, (2) the very limited likelihood in light of the warnings, the "dead man's" cut off switch, and the safe use by plaintiff for many years that it would cause injury, (3) the absence of availability of a significantly safer design, (4) the absence of a significant potential for designing and manufacturing the product so that it is safer, but remains functional and reasonably priced, (5) the manifest ability of plaintiff to have avoided injury by the careful use of the product, and (6) the very large degree of awareness of the potential danger of the product which could be attributed to plaintiff. Id. at 109; See also, Rainbow v. Elia Bldg. Co., 79 AD2d 287, 291, 436 NYS2d 480 (4th Dept. 1981), aff'd, 56 NY2d 550, 449 NYS2d 967, 434 NE2d 1345 (1982). [*5]

In light of the above, Plaintiff's motion to renew and reargue is denied and defendant's summary judgment motion dismissing the complaint is granted. This constitutes the decision and order of the Court. Plaintiff is directed to settle Order on Notice in accordance with this decision.

____________________________

J.S.C. Footnotes

Footnote 1: Plaintiff alleges as separate causes of action (1) failure to warn and (2) defective design and/or manufacture of the product.

Footnote 2: Further, while the expert implies that the time over which the blade "sporadically crept' and rotated" included the period beginning five seconds after the auger control was released, he never squarely so states and, in any event, the phrase "sporadically crept' and rotated" hardly suggests a speed that is dangerous, much less capable of amputating fingers.

Footnote 3: Of course the materials in question would have to pre-date the design and manufacturing stages, to show that the proposal was "within the state of the art" at the time of manufacture. Otherwise they could not be considered. See Rainbow vs. Elia Building Co., 79 AD2d 287, 436 NYS2d 480 (4th Dept. 1981).