| Doomes v Best Tr. Corp. |
| 2009 NY Slip Op 09154 [68 AD3d 504] |
| December 10, 2009 |
| Appellate Division, First Department |
| Gloria Doomes, Respondent, v Best Transit Corp. et al.,Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach, Appellant. AnaJiminian, Respondent, v Best Transit Corp. et al., Defendants, and Warrick Industries, Inc.,Doing Business as Goshen Coach, Appellant. Kelli Rivera, Respondent, v Best Transit Corp. etal., Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach,Appellant. |
—[*1] [*2]Kahn Gordon Timko & Rodriques, P.C., New York(Nicholas I. Timko of counsel), for Gloria Doomes, respondent. Trolman, Glaser & Lichtman, P.C., New York (Michael T. Altman of counsel), for AnaJiminian, respondent. Shramko & DeLuca, LLP, Hudson (Jonathan D. Shramko of counsel), for Kelli Rivera,respondent.
Judgments, Supreme Court, Bronx County (Stanley Green, J.), entered October 25, August 2and June 20, 2007, after a joint trial, insofar as appealed from, awarding the Doomes,Jiminian/Nunez and Rivera plaintiffs damages for pain and suffering as against defendantWarrick Industries, unanimously reversed, on the law and the facts, without costs, and thecomplaints dismissed as against defendant Warrick Industries. The Clerk is directed to enter anamended judgment accordingly.
In 1994, a bus driver fell asleep at the wheel while driving on a highway at approximately 60miles per hour. The bus, which was manufactured by Warrick from a chassis produced bydefendant Ford Motor Company, moved across the highway, from the right-hand lane into thepassing lane and then onto the median strip and a sloping embankment before rolling overseveral times after the driver woke up and tried to steer the bus back to the roadway. Plaintiffs,who were among the 19 injured passengers, alleged negligence, strict products liability andbreach of warranty, contending that when the driver suddenly woke up, he was unable to regaincontrol of the bus because, with its redesigned chassis, the bus was overweight and misbalanced,with too much weight over its back. Plaintiffs also sought to hold Warrick liable on the groundof its failure to equip the bus with seatbelts to protect the passengers. Following a joint trial ofthe claims of some of the plaintiffs, the jury found, in part, that Warrick was liable for theaccident because it lengthened the original Ford chassis and failed to install seatbelts.
Before trial, Warrick moved unsuccessfully to preclude evidence as to the alleged negligenceor product defect attributed to the lack of passenger seatbelts. The National Traffic and MotorVehicle Safety Act of 1966 (49 USC § 30101 et seq.) prescribes uniform nationalstandards. When read together with the regulatory scheme prescribed by the Secretary ofTransportation, as set forth in Federal Motor Vehicle Safety Standard (FMVSS) 208 (49 CFR571.208), this standard requires manufacturers to equip vehicles with certain restraints,depending on the type, weight and age of the vehicle. This bus was governed by S4.4.2 ofFMVSS 208, pursuant to which only the driver's seat was required to be fitted with a seatbelt.Although the federal enactment does preserve the right, in some instances, to a common-lawremedy (49 USC § 30103 [e]), a suit alleging the failure to install airbags is preempted(Geier v American Honda Motor Co., 529 US 861 [2000]; see also Chevere v Hyundai MotorCo., 4 AD3d 226, 227 [2004], lv denied 3 NY3d 612 [2004]). Similarly, thestate tort law rule for which plaintiffs argue—one that effectively would require seatbeltsat passenger seating positions for all buses governed by FMVSS 208—is preemptedbecause it conflicts with the federal goal of establishing uniform standards (see Surles vGreyhound Lines, Inc., 2005 WL 1703153, *6, 2005 US Dist LEXIS 45765, *17-18 [EDTenn 2005]).
As for the weight distribution claim, not only was there no credible nonspeculative [*3]evidence concerning the vehicle's weight or its distribution, butplaintiffs' own expert engineer acknowledged that the accident was unrelated to the extension ofthe chassis, and admitted there was no proof it had been caused by anything other than thedriver's inattentiveness. Concur—Tom, J.P., Nardelli, McGuire, Acosta and DeGrasse, JJ.