| Anaya v Town Sports Intl., Inc. |
| 2007 NY Slip Op 07875 [44 AD3d 485] |
| October 18, 2007 |
| Appellate Division, First Department |
| Joseph Anaya, Appellant, v Town Sports International,Inc., et al., Defendants, and Sport Rock International, Inc., et al.,Respondents. |
—[*1] Callan, Koster, Brady & Brennan, LLP, New York City (Marc R. Wilner of counsel), forSport Rock International, Inc., respondent. Goldberg Segalla LLP, Mineola (Joanna M. Roberto of counsel), for Petzl America, Inc.,respondent.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 24, 2006,which, to the extent appealed from as limited by the briefs, granted the separate motions ofdefendants Sport Rock International (Sport Rock) and Petzl America, Inc. (Petzl) for summaryjudgment dismissing the complaint as against them, unanimously modified, on the law, themotions denied with respect to plaintiff's claims based on design defect and failure to warn, andotherwise affirmed, without costs.
Plaintiff sustained severe personal injuries when he fell from a height of approximately 30feet while descending a rock climbing wall that was operated by defendant Town SportsInternational, Inc. of West Nyack (TSI). The accident occurred because an employee of TSI tiedthe safety line plaintiff was using to a non-weight-bearing gear loop on the harness plaintiff waswearing; the line should have been tied to the "anchor point" of the harness. As plaintiffdescended the wall the gear loop tore away from the harness, causing plaintiff's fall. The harnesswas sold to TSI by Sport Rock and manufactured by Petzl.
Plaintiff asserts causes of action for, among other things, negligence and strict productsliability. Plaintiff asserts that Sport Rock and Petzl are liable for his injuries because the safetyharness was defectively designed and insufficient warnings were provided regarding where onthe harness the safety line was supposed to be tied. Sport Rock moved for summary judgmentdismissing the complaint and all other claims as asserted against it, and Petzl moved separatelyfor similar relief. Plaintiff cross-moved for a special trial preference and to dismiss theaffirmative defenses of Sport Rock and Petzl premised on the alleged absence of personaljurisdiction over those defendants. Supreme Court granted the motions of Sport Rock and Petzl,and denied plaintiff's cross motion. Plaintiff appeals, as limited by his brief, from those portions[*2]of the order that granted the motions of Sport Rock andPetzl.[FN*]
Petzl's argument that plaintiff failed to oppose its motion before Supreme Court and thatplaintiff therefore lacks standing to maintain this appeal is without merit. Plaintiff expresslyopposed the motions of Sport Rock and Petzl for the reasons stated by TSI in its opposition to themotions.
To establish a prima facie case for strict products liability based on defective design, theplaintiff must show that the product "was not reasonably safe and that the defective design was asubstantial factor in causing plaintiff's injury" (Voss v Black & Decker Mfg. Co., 59NY2d 102, 107 [1983]). With respect to the first element—whether the product was notreasonably safe—the proper inquiry is "whether it is a product which, if the design defectwere known at the time of manufacture, a reasonable person would conclude that the utility ofthe product did not outweigh the risk inherent in marketing a product designed in that manner"(id. at 108). In balancing the product's risks against its utility and cost, the followingfactors must be considered: "(1) the utility of the product to the public as a whole and to theindividual user; (2) the nature of the product—that is, the likelihood that it will causeinjury; (3) the availability of a safer design; (4) the potential for designing and manufacturing theproduct so that it is safer but remains functional and reasonably priced; (5) the ability of theplaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of thepotential danger of the product which reasonably can be attributed to the plaintiff; and (7) themanufacturer's ability to spread any cost related to improving the safety of the design"(id. at 109).
Since the harness was undoubtedly meant to bear the weight of a climber, it was reasonablyforeseeable that a climber might attempt to attach a safety line to various parts thereof and expectthose parts to bear his weight. In fact, both these defendants admitted that novice climbers hadbeen known to attach safety lines to gear loops and other parts of the harness. Rather thandesigning the gear loop to be weight bearing, or omitting it from the design, Petzl decided tomake it appear flimsy in the expectation that the user would not attempt to attach a line to it.Whether this decision was reasonable in view of the questionable utility of a gear loop on aharness used for indoor rock climbing and the serious risk posed is a question for the jury(Voss, 59 NY2d at 108-109; see also Denny v Ford Motor Co., 87 NY2d 248[1995]).
Triable issues of fact also exist regarding plaintiff's cause of action for strict products liabilitybased on failure to warn. "A manufacturer has a duty to warn against latent dangers resultingfrom foreseeable uses of its product of which it knew or should have known" (Liriano vHobart Corp., 92 NY2d 232, 237 [1998]). This rule applies with equal force to distributorsand retailers (see Godoy v Abamaster of Miami, 302 AD2d 57 [2003]). Foreseeing thepotential that harness users might tie safety lines to gear loops, Petzl warned against suchconduct. This warning appeared in the manual accompanying the harness and in a technicalnotice. A small label on the harness contained a "skull and crossbones" symbol and directed theuser to refer to the manual and technical notice. There is expert evidence, however, that thesewarnings were inadequate because no warning on the harness itself specifically advised againsttying a safety line to the gear loop. Thus, the sufficiency of the warnings must be determined by ajury.
Contrary to the assertions of Sport Rock and Petzl, we cannot determine as a matter of lawthat the conduct of TSI's employee was a superseding act. "Where the acts of a third personintervene between the defendant's conduct and [*3]the plaintiff'sinjury, the causal connection is not automatically severed. In such a case, liability turns uponwhether the intervening act is a normal or foreseeable consequence of the situation created by thedefendant's negligence. If the intervening act is extraordinary under the circumstances, notforeseeable in the normal course of events, or independent of or far removed from the defendant'sconduct, it may well be a superseding act which breaks the causal nexus" (Derdiarian v FelixContr. Corp., 51 NY2d 308, 315 [1980] [citations omitted]).
Here, TSI's employee testified that she knew the safety line was not to be tied to the gearloop. However, she did not know what purpose the gear loop served, and accidently tied thesafety line to it. While it appears that this employee had minimal training on the proper use of theharness and had not read the manual or technical notice, the record does not permit a finding thatthe employee's conduct was unforeseeable as a matter of law. The record is replete with evidenceindicating the foreseeability of the risk that novice users of the harness (or for that matter otherinexperienced persons such as the employee) might mistakenly tie safety lines to gear loops. Hadthe harness been designed without a gear loop or with a weight bearing gear loop, or had clearerwarnings been on the harness itself, the accident may have been prevented. Accordingly, triableissues of fact exist regarding whether the alleged defective design of the harness, the allegedinadequate warnings, or both, was a substantial factor in causing plaintiff's injuries (seeid. ["Because questions concerning what is foreseeable and what is normal may be thesubject of varying inferences . . . these issues generally are for the fact finder toresolve"]).
Plaintiff's remaining contentions are without merit. Concur—Friedman, J.P., Nardelli,Sweeny, McGuire and Malone, JJ.
Footnote *: Plaintiff settled this action withTSI.