| Steuhl v Home Therapy Equip., Inc. |
| 2008 NY Slip Op 04023 [51 AD3d 1101] |
| May 1, 2008 |
| Appellate Division, Third Department |
| Maria T. Steuhl, Formerly Known as Maria T. Brailey, et al.,Respondents-Appellants, v Home Therapy Equipment, Inc., Respondent, and InvacareCorporation, Appellant-Respondent. |
—[*1] Jade H. Platania, Rhinebeck, for respondents-appellants. Law Offices of Alan I. Lamer, Elmsford (Andrew Zajac of Fiedelman & McGaw, Jericho, ofcounsel), for respondent.
Kane, J. Cross appeals from an order of the Supreme Court (Donohue, J.), entered August16, 2007 in Columbia County, which, among other things, denied defendant InvacareCorporation's motion for summary judgment dismissing the complaint against it.
Plaintiff Maria T. Steuhl (hereinafter plaintiff) was prescribed a motorized hospital bed aftershe underwent back surgery. The bed was manufactured by defendant Invacare Corporation andwas owned and leased by defendant Home Therapy Equipment, Inc. Home Therapy's servicetechnician, Louis Olivetto, delivered the bed to plaintiff's home, assembled it there and instructedplaintiff's sister on how to properly operate it. Plaintiff used the bed without incident for fourdays. As plaintiff described the accident, while she was attempting to lower the head of the bed,[*2]the motor kept running but the bed stopped moving. Shereleased the button and pressed it again, heard a crunching noise, then the head of the bedsuddenly dropped flat, causing plaintiff serious injuries.
Plaintiff's sister contacted Home Therapy to inform it that the bed had malfunctioned. WhenOlivetto arrived at plaintiff's house to resolve the problem, he tested the bed by raising andlowering the head and found that the hand control was working only intermittently. In response,he replaced the foot spring, which included the bed's motors, and the control box. Thereafter,plaintiff used the bed for six months without incident.
As a result of her injuries, plaintiff and her husband, derivatively, commenced this actionalleging negligence against Home Therapy and strict products liability, breach of warranty, andnegligent design, manufacture and distribution against Invacare. Defendants filed cross claimsagainst one another. Following discovery, Invacare moved for summary judgment dismissing thecomplaint against it.[FN*]Plaintiffs cross-moved for summary judgment on the issue of liability. Home Therapycross-moved for summary judgment. Invacare further moved for summary judgment on its crossclaim seeking indemnification and defense from Home Therapy. Supreme Court denied all of themotions, prompting these appeals by Invacare and plaintiffs.
On the strict products liability cause of action, Invacare was entitled to summary judgmentdismissing the portions alleging a manufacturing defect and failure to warn. Under strict liabilitylaw, "a product may be defective by reason of a manufacturing flaw, improper design or failure towarn" (Sukljian v Ross & Son Co., 69 NY2d 89, 94 [1986]; see Voss v Black &Decker Mfg. Co., 59 NY2d 102, 106-107 [1983]). There is no proof of a manufacturing flawhere; the hospital bed was constructed according to Invacare's specifications and design (seeMcArdle v Navistar Intl. Corp., 293 AD2d 931, 932 [2002]; Van Deusen v NortonCo., 204 AD2d 867, 868 [1994]).
While manufacturers have a duty to warn against latent dangers due to intended uses andforeseeable unintended uses of their products (see Liriano v Hobart Corp., 92 NY2d 232,237 [1998]), courts may decide that there is no duty to warn or that such duty has beendischarged under the "knowledgeable user exception" (Travelers Ins. Co. v Federal Pac. Elec.Co., 211 AD2d 40, 43 [1995], lv denied 86 NY2d 712 [1995]). Where the personwho would benefit from a warning is already aware of the specific hazard, the manufacturercannot be held liable for failing to warn of that known hazard (see Lombard v Centrico,Inc., 161 AD2d 1071, 1072 [1990]). Plaintiffs contend, with support from an expertengineer, that a warning was necessary to make sure that the hitch pin was inserted into the clevispin, ensuring that the head of the bed remained attached to the rest of the frame. Invacare showedthat its beds are not sold directly to end users, but to dealers who rely on trained technicians toassemble the beds. Olivetto testified at his deposition that he received training on assemblingInvacare beds, had been assembling them for five years and was aware that installing the clevispin and hitch pin was important because failing to ensure proper installation of these parts couldcause the bed to fall apart. He was thus aware of the specific danger at issue here, so that anyfailure to warn did not [*3]proximately cause plaintiff's injury.Plaintiffs further assert that Invacare should have warned end users such as plaintiff. The warningsticker recommended by plaintiffs' expert would have been placed on the under side of the bed,rendering it unlikely that users would ever see it. Additionally, plaintiffs' expert opined that thepurpose of such stickers would be to warn and remind technicians of the proper assemblymethod, not to warn users of the bed. Thus, Invacare established its entitlement to summaryjudgment on the portion of plaintiffs' complaint alleging a failure to warn.
The third way to establish strict products liability is through a design defect. A prima faciecase of strict products liability for a design defect requires proof that the manufacturer "marketeda product designed so that it was not reasonably safe and that the defective design was asubstantial factor in causing plaintiff's injury" (Voss v Black & Decker Mfg. Co., 59NY2d at 107; see Warnke vWarner-Lambert Co., 21 AD3d 654, 655 [2005]). The "standard for determining theexistence of a design defect [requires] an assessment of whether 'if the design defect were knownat the time of manufacture, a reasonable person would conclude that the utility of the product didnot outweigh the risk inherent in marketing a product designed in that manner' " (Denny vFord Motor Co., 87 NY2d 248, 257 [1995], quoting Voss v Black & Decker Mfg.Co., 59 NY2d at 108). Under this risk/utility balancing concept, juries determine thereasonableness of the manufacturer's choice to market the product with the selected design byweighing the risks of using the product against its usefulness and costs, as well as against therisks, usefulness and costs of any alternative designs (see PJI 2:120; see also Denny vFord Motor Co., 87 NY2d at 258; Blacklocks, Outside Counsel, New Design-Defect JuryInstructions: Catching "Denny," NYLJ, Apr. 3, 2008, at 4, col 4).
Here, Invacare established its prima facie entitlement to summary judgment through itsexpert mechanical engineer's affidavit affirming that there was no defect in the design chosen byInvacare and the bed was reasonably safe for its intended use. In response, plaintiffs' expertasserted that the clevis pin and hitch pin design created a danger of improper installation whichcould result in the bed collapsing. He also stated that several alternative designs were safer, thosealternatives were economically and technologically feasible, and the collapse of a bed as allegedby plaintiff would have been prevented by using an alternative to the clevis pin design. Bothexperts asserted that the collapse of the bed was caused by assembly error, namely that theassembler failed to install or improperly installed the clevis pin and hitch pin. Considering theconflicting expert opinions concerning the reasonableness of the bed's design, Supreme Courtproperly determined that a question of fact exists concerning an alleged design defect (see Wojcik v Empire Forklift, Inc., 14AD3d 63, 65 [2004]).
Supreme Court properly denied plaintiffs' motion for partial summary judgment againstHome Therapy on the negligence cause of action. Both plaintiffs' and Invacare's experts opinedthat the cause of the accident was improper assembly of the bed due to improper installation ofthe clevis pin and hitch pin. These expert opinions—based upon a review of depositiontranscripts, documents produced by the parties and examinations of the bedcomponents—were sufficient to shift the burden to Home Therapy to establish a triablequestion of fact (see Cusano v General Elec. Co., 111 AD2d 557, 558 [1985],affd 66 NY2d 844 [1985]). On the other hand, Olivetto testified at his deposition that heproperly assembled the bed, including properly installing the clevis pin. He successfully testedthe bed after assembling it. When he returned to repair the bed, he also operated the motor toraise the head of the bed, though it only worked intermittently. Home Therapy's expert stated thatthe accident could not have been caused as claimed by plaintiff and the other experts since thehead of the bed could not have been raised [*4]after plaintiff'saccident if the clevis pin and hitch pin had become dislodged. While plaintiff's sister clarified herdeposition testimony through an affidavit, even with that clarification she acknowledged that shesaw Olivetto operate the bed after the accident but before he repaired it. This corroboratedOlivetto's testimony. Considering the expert proof that the only possible cause was improperassembly, contradicted by factual testimony directly and impliedly establishing that the bed wasproperly assembled, as well as expert testimony supporting that factual proof, summary judgmentwas properly denied on plaintiffs' negligence cause of action against Home Therapy (seeNichols v Agway, Inc., 280 AD2d 889, 890 [2001]; see also Torres v W.J. Woodward Constr., Inc., 32 AD3d 847, 849[2006]).
Invacare was not entitled to summary judgment on its cross claim against Home Therapy.Under the contract between defendants, Home Therapy "agree[d] to indemnify and hold harmlessInvacare from any and all claims, losses, damages, charges, expenses . . . whichmay be made against Invacare or which Invacare may incur arising out of any negligentactions of [Home Therapy]" (emphasis added). Contracts must be strictly construed bylooking to the language employed by the parties to give effect to the their intended purpose (see McCleary v City of Glens Falls, 32AD3d 605, 609 [2006]). The contract calls for indemnification for losses and damagesresulting from Home Therapy's negligent actions, rendering summary judgment premature herebecause there has not been any finding of negligence against Home Therapy (see Rodriguez vSavoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738, 739 [2003]; Taylor v BandeReal Estate Corp., 278 AD2d 404, 404-405 [2000]; Cichon v Brista Estates Assoc.,193 AD2d 926, 927-928 [1993]; compare Edwards v International Bus. Machs. Corp.,174 AD2d 863, 865 [1991]). For Home Therapy, which is not an insurer, its duty to defend is nobroader than its duty to indemnify (see Brasch v Yonkers Constr. Co., 306 AD2d 508,510-511 [2003]; Cannavale v County of Westchester, 158 AD2d 645, 646 [1990]; seealso McCleary v City of Glens Falls, 32 AD3d at 609). Hence, Supreme Court properlydenied Invacare's motion for summary judgment on its cross claim seeking indemnification anddefense.
Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as denied defendant Invacare Corporation'smotion for summary judgment dismissing those causes of action alleging strict products liabilitybased on defective manufacturing and failure to warn; motion granted to that extent and saidclaims dismissed against said defendant; and, as so modified, affirmed.
Footnote *: This Court previously affirmedSupreme Court's denial of Invacare's motion to strike Home Therapy's answer and cross claimbased upon allegations of spoliation of evidence (23 AD3d 825 [2005]).