Heimbuch v Grumman Corp.
Annotate this CaseDecided on June 28, 2007
Supreme Court, Nassau County
Elizabeth Heimbuch and John Heimbuch, Plaintiff,
against
Grumman Corporation and Grumman, Olson Industries, Inc., Defendants.
8281/01
Kenneth A. Davis, J.
Motion by defendants for summary judgment dismissing the complaint is granted in part and denied in part. Motion by defendants to strike the case from the trial calendar and vacate the note of issue is granted to the extent of ordering post-note of issue discovery.
This is an action for negligence, breach of implied warranty, and strict products liability.
Plaintiff Elizabeth Heimbuch was employed as a courier for Federal Express. As a courier, Heimbuch would use a truck to deliver packages. At the Federal Express terminal, the freight was loaded onto the truck by other employees. Heimbuch would then drive the truck to various locations where the packages would be delivered.
Heimbuch was generally assigned to one specific truck, #202930. The vehicle is a Route Star model and was manufactured by defendant Grumman-Olson in 1992. The truck is configured with a hood which wraps around the front, sides, and engine compartment of the vehicle. A hinge connects the top rear of the hood to the front windshield framing. There is a lift handle, located at the center of the bottom of the hood, which is used to raise and lower it. To the left of the hood is a telescoping steel brace. When fully extended, the members of the brace lock into place and retain the hood in an open position.
Prior to loading each day, each courier was required to [*2]perform a "pre-trip," or preliminary inspection of her vehicle. The pre-trip involved inspecting the truck for dents and also checking the tire pressure and fluid levels. To check the oil and coolant levels, it was necessary to raise the hood to its braced open position and gain access to the engine compartment.
On September 14, 2000 at approximately 7:30 a.m., in the course of performing a pre-trip of her truck, Heimbuch raised the hood in order to check the fluid levels. Heimbuch testified that it was necessary to lift the hood "way over my head" for the brace to lock into place. While lifting the hood above her head with her right hand, Heimbuch experienced severe pain in her neck radiating down to her shoulder. Heimbuch alleges that as a result of the defective condition of the truck, she sustained permanent back and neck injury.Heimbuch had used the vehicle for about six months prior to that date without incident.
Grumman-Olson's technical coordinator for fleet sales, Larry Palmer, testified that all of the 92 Route Stars manufactured by Grumman-Olson were equipped with a device to assist in lifting the hood, referred to as a "gas strut" or "gas assist." The device operates by compressing air in a cylinder as the hood is closed. When the hood is opened, the air expands in the cylinder, pushes up on a piston rod, and assists in opening the hood again. According to David Allen White, Grumman-Olson's Manager of Reliability, the assembly records for the vehicle in question indicate that a pneumatic lift device was installed at the time of manufacture. Defendants assert that the device was working properly when Grumman delivered the vehicle to Federal Express in 1992.According to White, Grumman did not receive any prior complaints concerning the pneumatic lift devices or issue any recalls. Palmer further testified that Grumman-Olson produced a kit which was available to Federal Express for the purpose of replacing any lift devices which were worn out or not functioning properly.
According to Heimbuch, such a device was not present at any time during which the vehicle was assigned to her. Plaintiffs' theories are 1) there was a manufacturing flaw in that the truck was not equipped with a pneumatic cylinder, and 2) even if the truck was so equipped, the truck was defectively designed in that the lifting device was not "strategically located." With regard to the latter theory, plaintiffs' expert maintains that because of the cylinder's placement, close to the rear hinge, it provides minimal leverage or mechanical advantage in lifting the hood. The expert estimated the force necessary to lift the hood without a pneumatic cylinder to be 40 pounds. The expert measured the force necessary to lift the hood, with a cylinder located near the hinge, to be no more than 5 pounds less. The expert concluded that the truck is defectively designed because the operator must use awkward and excessive force to open the hood, exposing herself to the risk of injury. [*3]
In moving for summary judgment dismissing the complaint, defendants assert that the truck was indeed manufactured with a pneumatic cylinder. However, defendants argue that because the pneumatic cylinder was not present when the accident occurred, it must have worn out over time. Defendants further argue that Federal Express substantially modified the truck by failing to replace the cylinder.
While a plaintiff seeking to recover from a manufacturer for injuries caused by a defect in its product has a single claim, that claim may be grounded on theories of negligence, strict products liability, and breach of implied warranty (See generally Denny v. Ford Motor Co, 87 NY2d 248, 256 [1995].A manufacturer is under a duty to construct a product which is free of latent or hidden defects(Bolm v. Triumph Corp., 33 NY2d 151, 156 [1973]). If the manufacturer breaches that duty by producing a defective product, it may be liable in negligence for injuries proximately caused by the product's defect.
A cause of action in strict products liability lies where a manufacturer places on the market a product which has a defect which causes injury(Robinson v. Reed-Prentice, 49 NY2d 471, 478-79 [1980]). Such a defect may arise because of a mistake in manufacture, improper design of the product, or inadequate warnings(Id).
Under the Uniform Commercial Code, if the seller is a merchant with respect to the goods, a warranty that the goods shall be merchantable is implied in a contract for their sale(UCC § 2-314). To be merchantable, goods must be, among other things, fit for the ordinary purposes for which such goods are used(UCC § 2-314[2][c]). This implied warranty of merchantability extends to any natural person, if it is reasonable to expect that such person may use or be affected by the goods and the person is injured by breach of the warranty(UCC 2-318; See generally, Codling v. Paglia, 32 NY2d 330 [1973]).
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 at 257). In applying this standard, the fact finder must determine whether "if the [purported] design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product is that manner"(Id). The inquiry involves 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 [*4]of any safety-related design changes(Id).
Where the plaintiff is an employee injured by the employer's equipment, as opposed to a consumer who is injured by a consumer product, the risk-utility calculus is somewhat different. Thus, the relevant "public" is not consumers at large but rather the employer's industry. The price which must be reasonable is not that of a consumer product, or even the defective article itself, but rather the equipment of which it is a component part. The degree of awareness of the product's danger attributable to the employee may be based upon the knowledge of the employer. Nevertheless, if there is reason to doubt that the employer will pass warnings on to employees, the seller is required to reach the employees directly with necessary instructions and warnings if doing so reasonably feasible(Restatement 3d of Torts: Products Liability § 2 comments and illustrations). Finally, the manufacturer's ability to spread the cost of design changes may be tempered by the employer's ability to spread the cost of injury through workers compensation. Given these qualifications, it appears that the same criteria will apply regardless of whether the plaintiff is injured by a consumer product or a commercial vehicle.
The balancing of risk and utility to establish defectiveness in strict products liability is similar to that in a traditional negligence action(Denny v. Ford Motor Co, supra, 87 NY2d at 257). It is this "negligence-like" aspect of strict products liability which distinguishes it from the theory of breach of implied warranty(Id. at 258). While strict products liability requires a weighing of the product's dangers against its over-all advantages, the UCC's concept of a defective product requires an inquiry only into fitness for ordinary use(Id).The difference in focus between strict products liability and breach of implied warranty is explained by the different sources of these theories of liability. Strict products liability originates in tort law, which traditionally has concerned itself with social policy and risk allocation. On the other hand, breach of implied warranty derives from contract law, which redresses disappointed expectations of the purchaser(Denny v. Ford Motor Co, supra 87 NY2d at 259).
A manufacturer will not automatically be held liable for all accidents caused or occasioned by the use of its product. While the manufacturer is under a nondelegable duty to design and produce a product that is not defective, that responsibility is gauged as of the time the product leaves the manufacturer's hands(Robinson v. Reed-Prentice, supra, 49 NY2d at 479). Substantial modifications of a product from its original condition by a third party which render a safe product defective are not the responsibility of the manufacturer(Id). The substantial modification defense applies not only to strict products liability based on a design defect, but also to the UCC theory of breach of implied warranty(See UCC § 2-314 Official Comment 13). However, a manufacturer may be liable for failure to warn where the substantial modification defense would preclude liability on a design defect theory(Liriano v. Hobart Corp., 92 NY2d 232 [1998]). A substantial modification may occur where the third party destroys the functional utility of a key safety feature(Robinson v. Reed-Prentice, supra, 49 NY2d at 481). Where, however, a product is purposefully manufactured to permit its use without a safety feature, a plaintiff may recover for injuries suffered as a result of removing the safety feature(Liriano v. Hobart Corp., supra, 92 NY2d at 238).
On a motion for summary judgment, it is the proponent's burden to make a prima facie [*5]showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact(JMD Holding Corp. v. Congress Financial Corp., 4 NY3d 373, 384 [2005]). Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers(Id). However, if this showing is made, the burden shifts to the party opposing the summary judgment motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial(Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).
The court concludes that defendants have made a prima facie showing that the truck was equipped with a pneumatic cylinder at the time of manufacture. Production specifications called for all 92 Route Stars to include the device, and assembly records confirm that the device was installed in the specific vehicle. Thus, the burden shifts to plaintiff to establish a triable issue as to whether vehicle # 202930 was equipped with a pneumatic cylinder at the time of manufacture. In opposition to the motion, plaintiffs have offered evidence that if the truck had been delivered early in the "model year," as for example September or October of 1991, it might not have been equipped with a pneumatic cylinder. Absent evidence that vehicle #202930 was manufactured in the fall of 1991, this showing is insufficient to meet plaintiffs' burden. Accordingly, summary judgment is granted to defendants with respect to plaintiffs' claim based upon a flaw in manufacture.
Plaintiffs' design defect theory is that because of the improper location of the pneumatic cylinder, it failed to supply sufficient leverage to avoid the risk of injury. Defendants argue that Federal Express substantially modified the truck by failing to replace the worn out lift device. The court rules that the pneumatic cylinder was in part a "safety feature," as it was designed both to assist in lifting the hood and to avoid the risk of injury. Moreover, a product may be defective where it is purposefully manufactured with a minimally effective safety feature. Because the feature is minimally effective, it is foreseeable that the owner will not replace the safety feature after it wears out. Therefore, plaintiff may recover where she is injured by the failure to replace a minimally effective safety feature, as she could with a product with a functional safety feature which was purposely manufactured to permit its use with the safety feature removed.
To establish a prima facie case of entitlement to judgment on the design defect theory, defendants would have to show that they did not purposefully manufacture the Route Star with a minimally effective pneumatic cylinder. This issue will turn upon defendants' knowledge of the efficiency of the lift assist device when the vehicle was in the design stage. The court concludes that defendants have not made the required prima facie showing. Failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Accordingly, defendants' motion for summary judgment dismissing the complaint is denied as to plaintiffs' negligence and design defect theories. Because defendants have offered no expert evidence that a single pneumatic cylinder placed near the rear hinge is a fit device for a courier of average strength to raise the hood, defendants' motion for summary judgment dismissing the breach of warranty claim is also denied. To summarize, defendants' motion for summary judgment dismissing the complaint is granted as to plaintiffs' strict products liability claim based on a manufacturing flaw. Defendants' motion for summary judgment dismissing the complaint is denied as to plaintiffs' claims for negligence, strict products liability based on design defect, and breach of implied warranty.
Defendants' motion to strike the case from the calendar and vacate the note of issue is based on plaintiff's failure to provide discovery as to treatment for a bursitis condition in her toe. Plaintiff [*6]has resisted discovery as to this condition based on the physician-patient privilege(CPLR § 4504). Plaintiff argues that because she does not claim that the toe was injured in the accident, she has not waived the doctor-patient privilege as to that part of her body.
By commencing a personal injury action, plaintiff waives the doctor-patient privilege with respect to any physical or mental condition which is affirmatively placed in controversy, but not with respect to unrelated illnesses or treatments(Sadicario v. Stylebuilt Accessories, Inc, 250 AD2d 830 [2d Dep't 1998]). While plaintiff does not claim that her toe was injured in the accident, she has nonetheless placed the condition of her foot in issue in this proceeding. Plaintiffs' theory of design defect is that the inefficiency of the lift device caused her to lift the hood with excessive force and in an awkward manner. Plaintiff may have lifted the hood in an unnatural manner, not because the lift device was inadequate, but rather because she was experiencing discomfort in an extremity and favored that side of her body.
To establish a prima facie case of strict products liability, plaintiff is required to show that the defectively designed product caused her injury and that the defect was the proximate cause of the injury(Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 109 [1983]). Proximate cause in the context of strict products liability for design defects means that the defect was a substantial factor in causing plaintiff's injury(Id at 109-10). Because the condition of plaintiff's foot is relevant to the issue of causation, the doctor-patient privilege does not shield plaintiff from having to provide discovery. Furthermore, to prevent substantial prejudice to defendants on this issue, the court grants permission to conduct post-note of issue discovery(22 NYCRR § 202.21[d]). Accordingly, plaintiffs shall supply authorizations for all health providers who have treated plaintiff for her bursitis condition within 15 days of service of a copy of this order.
This shall constitute the decision and order of the court.
Dated:______________________________________________________
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
