| Cwiklinski v Sears, Roebuck & Co., Inc. |
| 2010 NY Slip Op 01271 [70 AD3d 1477] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Paul Cwiklinski et al., Respondents, v Sears, Roebuck & Co., Inc.,et al., Appellants. |
—[*1] Brown & Kelly, LLP, Buffalo (Carolyn M. Henry of counsel), for defendant-appellantVermont American Corporation. Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), forplaintiffs-respondents.
Appeals from an amended order of the Supreme Court, Erie County (Joseph R. Glownia, J.),entered January 29, 2009 in a personal injury action. The amended order, insofar as appealedfrom, denied in its entirety the motion of defendant Vermont American Corporation for summaryjudgment and denied in part the motion of defendants Sears, Roebuck & Co., Inc. and EmersonElectric Co. for summary judgment.
It is hereby ordered that the amended order so appealed from is unanimously modified on thelaw by granting those parts of the motion of defendant Vermont American Corporation and themotion of defendants Sears, Roebuck & Co., Inc. and Emerson Electric Co. with respect to thenegligence and strict products liability causes of action insofar as they are predicated on amanufacturing defect and the failure to warn and dismissing those causes of action to that extentand as modified the amended order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byPaul Cwiklinski (plaintiff) while he was using a molding head cutter attached to a table saw. Themolding head cutter was manufactured by defendant Vermont American Corporation (Vermont),and the table saw was manufactured by defendant Emerson Electric Co. (Emerson). Plaintiffpurchased both products from defendant Sears, Roebuck & Co., Inc. (Sears) under its"Craftsman" label. He had used the table saw on about 30 occasions prior to the accident withoutincident and had used the molding head cutter two or three times. On the day of the accident,plaintiff attached the molding head [*2]cutter to the table saw tomake a nonthrough cut in a test piece of wood, which required the removal of the blade guard onthe table saw. Plaintiff used both hold downs and a push block. The saw began to "chatter" asplaintiff pushed through the piece of wood and, after he placed his left hand on the piece of woodin order to steady it, the wood kicked back. Plaintiff's left hand then came in contact with the sawblade, which caused the injury. Defendants moved for summary judgment dismissing thecomplaint, and Supreme Court denied Vermont's motion in its entirety and granted that part ofthe motion of Sears and Emerson for summary judgment dismissing the breach of warranty causeof action against them with respect to the table saw.
We agree with defendants that the court erred in denying those parts of their motions forsummary judgment dismissing the negligence and strict products liability causes of actioninsofar as they are predicated on a manufacturing defect, and we therefore modify the amendedorder accordingly. Defendants established that the molding head cutter and table saw had nomanufacturing or assembly defect, and plaintiffs failed to raise an issue of fact (see Cramer vToledo Scale Co., 158 AD2d 966, 967 [1990]; see generally Caprara v ChryslerCorp., 52 NY2d 114, 123-124 [1981], rearg denied 52 NY2d 1073 [1981]). Wefurther agree with defendants that the court erred in denying those parts of their motions forsummary judgment dismissing the negligence and strict products liability causes of actioninsofar as they are predicated on the failure to warn, and we therefore further modify theamended order accordingly. "There is no duty to warn of an open and obvious danger of whichthe product user is actually aware or should be aware as a result of ordinary observation or as amatter of common sense" (Felle v W.W. Grainger, Inc., 302 AD2d 971, 972 [2003];see Liriano v Hobart Corp., 92 NY2d 232, 241-242 [1998]). Here, plaintiff admitted thathe read the instruction manuals, and it can only be concluded that the danger in placing one'shands near an unguarded blade is open and obvious (see Lamb v Kysor Indus. Corp., 305AD2d 1083, 1084-1085 [2003]; Baptiste v Northfield Foundry & Mach. Co., 184 AD2d841, 843 [1992]; see also Conn v Sears, Roebuck & Co., 262 AD2d 954, 955 [1999],lv denied 94 NY2d 755 [1999]).
Contrary to defendants' further contentions, however, the court properly denied those partsof their motions for summary judgment dismissing the negligence and strict products liabilitycauses of action insofar as they are predicted on a design defect. Defendants met their initialburdens by submitting the affidavits of experts stating that there was no feasible guard that couldhave been used with the molding head cutter without hindering the nonthrough cut operation orwithout putting the user at further risk, and explaining why a specified guard known as theUniguard would not have worked. Defendants thus established that, when the molding headcutter and table saw left the manufacturers' hands, they were in a condition "reasonablycontemplated by the ultimate consumer" and were reasonably safe for their intended use(Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479 [1980];see generally Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108-109 [1983]). Inopposition to the motions, however, plaintiffs raised triable issues of fact by submitting theaffidavits of an expert who stated that there were several appropriate, workable guards on themarket that could have prevented the accident, including the Uniguard. The expert further statedthat the failure to sell the molding head cutter without requiring a guard and to sell the table sawwithout an accompanying guard suitable for the type of cutting operation being performed byplaintiff rendered the products defective and not reasonably safe for their intended use. Plaintiffsthus raised triable issues of fact whether the products were defectively designed based on thealleged lack of adequate guarding and whether there were feasible alternative designs when theywere manufactured (see Ganter v Makita U.S.A., 291 AD2d 847, 847-848 [2002];Sanchez v Martin Maschinenbau GmbH & Co., 281 AD2d 284 [2001]; cf. Lamb,305 AD2d at 1084). We have considered defendants' remaining contentions and conclude thatthey are without merit. Present—Scudder, P.J., Centra, Fahey, Carni and Pine, JJ.