| Reis v Volvo Cars of N. Am., Inc. |
| 2010 NY Slip Op 03779 [73 AD3d 420] |
| May 4, 2010 |
| Appellate Division, First Department |
| Manuel Reis et al., Respondents, v Volvo Cars of NorthAmerica, Inc., et al., Defendants, and Volvo Cars of North America, LLC, et al., Appellants.(And a Third-Party Action.) |
—[*1] Kreindler & Kreindler LLP, New York (Noah Kushlefsky of counsel), forrespondents.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or aboutMarch 4, 2009, which, to the extent appealed from, denied the motion of defendants-appellantsVolvo Cars of North America, LLC, Volvo Car Corporation and Ford Motor Company forsummary judgment dismissing the complaint, modified, on the law, plaintiffs' failure to warnclaims dismissed, and otherwise affirmed, without costs.
On May 24, 2002, plaintiff Manuel Reis arrived at the home of Americo Silva and observedSilva near a 1987 Volvo station wagon. Silva asked Reis if he wanted to see the engine runningand Reis said "yes." Reis stood in front of the vehicle with the hood open. Silva, who was besidethe car, reached into the driver's side open window and turned the ignition key while the manualtransmission was in first gear. Though Silva did not apply the clutch pedal, he recalled that theparking brake was "on."[FN1]When the car started, it lurched forward and crushed Reis's left leg. The vehicle was notequipped with a starter interlock, a device that prevents a manual transmission automobile fromstarting if it is in gear and the clutch pedal is not depressed. Plaintiffs brought claims againstdefendants-appellants sounding in strict liability and negligence alleging a design defect andfailure to warn.[*2]
Summary judgment was properly denied on the designdefect claims. In support of their motion, defendants-appellants failed to submit an affidavit froman engineer or automotive expert attesting to the vehicle's safety. Instead, they merely presentedevidence that they had not received any prior complaints about injuries or damage due to the lackof a starter interlock, and that, from the date Silva's Volvo was manufactured up until the date ofthe accident, there existed no statutes or regulations requiring the use of starter interlocks onmanual transmission vehicles.
Regardless of whether this sparse evidence satisfies defendants-appellants' prima facieburden in moving for summary judgment, the affidavit of plaintiffs' expert raised a triable issueof fact as to whether, in the absence of a starter interlock, the vehicle was "not reasonably safe"(Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108 [1983]). Plaintiffs' expert, ThomasJ. Feaheny, is an automotive engineering consultant and former vice-president for vehicleresearch at Ford Motor Company. He was instrumental in Ford's decision to begin installingstarter interlock devices in their manual transmission vehicles. Feaheny explained that starterinterlocks were included in Ford and Chevrolet manual transmission automobiles as early as the1970s and were widely used by U.S. and foreign automobile makers in 1987, when Silva's Volvowas manufactured.[FN2]
Feaheny stated that a starter interlock could have easily and inexpensively been installed onthe subject automobile and that a manual transmission vehicle without such a device isunreasonably dangerous. He concluded that if a starter interlock had been installed on Silva'sVolvo, the instant accident would most likely not have occurred. Contrary todefendants-appellants' position, the expert's failure to employ the phrase "reasonable degree ofscientific certainty" does not render his affidavit invalid as a matter of law (see John v City ofNew York, 235 AD2d 210 [1997]).
Whether Silva's method of starting the car by turning the key while he was beside the vehiclewas a reasonably foreseeable use of the automobile is a question for the trier of fact. "Amanufacturer who sells a product in a defective condition is liable for injury which results toanother when the product is used for its intended purpose or for an unintended but reasonablyforeseeable purpose" (Lugo v LJN Toys, 75 NY2d 850, 852 [1990]).Defendants-appellants presented no evidence, expert or otherwise, showing that Silva's methodof starting the vehicle, even if an unintended use, was not a foreseeable one. A jury couldreasonably conclude that it was foreseeable that a car owner might turn on the ignition whilestanding outside the car, especially if someone else was examining the engine, and that this actwas not the sole or superseding cause of the accident (see Valentin v Bretting, Mfg., Co.,278 AD2d 230 [2000]).
The failure to warn claims should have been dismissed because there is no evidence that anysuch failure was a proximate cause of the injury. In Sosna v American Home Prods. (298AD2d 158 [2002]), this Court held that a plaintiff asserting a failure to warn claim must adduceproof "that the user of a product would have read and heeded a warning had one been given"(298 AD2d at 158). Here, there is no proof in the record that Silva would have read and heeded awarning about the risk of the car's lurching forward if it is started while in gear and withoutdepressing the clutch pedal. To the contrary, Silva testified at his deposition that an owner's[*3]manual came with the vehicle, but he did not need to read itbecause he understood how cars operated. Thus, any purported absence of a warning in theowner's manual was not a substantial factor in bringing about the injury (see Guadalupe vDrackett Prods. Co., 253 AD2d 378 [1998]).
The dissent does not address this Court's decisions in Sosna and Guadalupe,but instead relies on a number of cases which we find distinguishable. For example, inJohnson v Johnson Chem. Co. (183 AD2d 64 [1992]), although the plaintiff admittedthat she did not read the warning label on a can of insecticide, the Second Department affirmeddenial of the manufacturer's motion for summary judgment focusing on the fact that the warningmay not have been prominently displayed. Likewise, the other cases cited by the dissent (seee.g. Humphrey v Diamant Boart, Inc., 556 F Supp 2d 167 [ED NY 2008]) all involvequestions of fact as to the conspicuousness, prominence and/or placement of the warnings.
Here, however, it is immaterial how prominent or conspicuous any warning in the owner'smanual might have been because it is undisputed that Silva did not read the manual and wouldnot have been likely to read it because he was familiar with how cars operated. Silva's admissionthat he did not read the manual severs the causal connection between the alleged failure to warnand the accident (see Sosna, 298 AD2d at 158, Guadalupe, 253 AD2d at 378).
Plaintiffs' suggestion on appeal that a warning label should have been placed on thedashboard or gear shift, and that such a warning would have prevented the accident, is based onspeculation. The complaint does not contain any allegation that a warning should have been inthe vehicle itself. Nor does the deposition testimony, or plaintiff's expert affidavit, support such aclaim or even explain where such a warning label should have been. Plaintiffs also point to noevidence in the record that other potential vehicle safety hazards are typically warned against bythe use of interior labeling as opposed to the inclusion of such information in the owner'smanual. Moreover, there is no evidence that Silva would have read and heeded a warning if ithad been located in the car itself. Since Silva started the car from outside, it is hard to imaginehow a warning on the dashboard or gear shift would have prevented theaccident.
Defendant-appellant Ford was not entitled to summary judgment because while itdid show that it had no role in the design and manufacture of the subject car, it presented noevidence on the nature of its acquisition of Volvo in 1999, and whether it had taken on anycontractual or other liabilities. Concur—McGuire, J.P., Renwick and Richter, JJ.
Manzanet-Daniels, J., concurs in part and dissents in part in a memorandum as follows: Iagree with the majority that defendants' motion for summary judgment on the design defectclaim was properly denied; however, I cannot agree that plaintiff's failure to warn claim shouldbe dismissed.
A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses ofits product of which it knew or should have known, and of the danger of unintended uses of aproduct provided those uses are reasonably foreseeable (see Liriano v Hobart Corp., 92NY2d 232 [1998]). The Court of Appeals has described the standard for evaluatingfailure-to-warn liability as "intensely fact-specific, including but not limited to such issues asfeasibility and difficulty of issuing warnings in the circumstances; obviousness of the risk fromactual use of the product; knowledge of the particular product user; and proximate cause"(id. at 243 [citation omitted]).[*4]
The majority rejects the failure to warn claim because itcredits defendants' argument that they cannot be liable for failing to include a warning in theinstruction manual since Silva, the vehicle owner, admitted that he never read the manual, andbecause both Silva and plaintiff were allegedly "familiar" with manual transmission vehicles.These assertions overstate the import of the deposition testimony. Furthermore, a failure to warnclaim is not automatically precluded by a product user's failure to read a warning or instructionmanual.
The deposition testimony did not establish that either the vehicle owner Silva, or the injuredplaintiff were aware of the specific danger that defendants should have warned against, i.e., thefact that the vehicle could lurch forward (which it did—causing grave injury necessitatingamputation of plaintiff's leg) if started while the vehicle was in gear. Silva merely testified thatwhen he learned how to drive a car with a manual transmission, many years ago in Portugal, hebecame aware that the car could "jump" forward if it stalled.[FN*]Plaintiff (who, prior to the accident, was not even aware that the Volvo was a manualtransmission vehicle) testified that he was familiar with how to operate stick shift vehicles andhad driven them in Portugal, from where he, too, had emigrated many years previous. The lasttime plaintiff had owned and operated a stick shift vehicle had been in 1974 in Portugal. Hetestified that he was aware that a vehicle with a standard transmission could lurch forward "acouple of inches" if it wasn't given enough gas or if it stalled. At no time during their depositionswere they asked whether, nor did they ever testify that, they were aware of the specific danger ofstarting an engine in a parked vehicle while the vehicle is in gear and the clutch not engaged.
A product user's admitted failure to read the manufacturer's warnings "does not necessarilysever the causal connection between the alleged inadequacy of those warnings, on the one hand,and the occurrence of the accident, on the other," and a plaintiff ought not be deprived ofrecovery for this reason alone (Johnson v Johnson Chem. Co., 183 AD2d 64, 71 [1992][plaintiff's admission that she failed to read warning on can of roach spray, which warned usersthat all flames, pilot lights and burners were to be turned off prior to use, did not defeat plaintiff'sright to recover on a theory of failure to warn]; German v Morales, 24 AD3d 246 [2005]; see also Humphreyv Diamant Boart, Inc., 556 F Supp 2d 167, 181 [ED NY 2008] [plaintiff's admission that hedid not read the warning label or operating instructions on equipment not dispositive under NewYork law in connection with failure to warn claim]).
As the appellate court in Johnson explained,
"It is perhaps difficult to see how a consumer who admittedly does not read the labels on theproducts which he or she uses can reasonably claim to have been injured because the textof such a label did not give a sufficient warning.
[*5]"This argument loses its persuasive force, however, onceit is understood that the intensity of the language used in the text of a warning is only one of thefactors to be considered in deciding whether such warning is adequate. A second factor to beconsidered is the prominence with which such language is displayed . . . Aconsumer such as [the plaintiff] who, by her own admission, tends to ignore one sort of label,might pay heed to a different, more prominent or more dramatic label. The reasonableness of herbehavior is for the jury to decide." (Johnson at 70; see Humphrey, 556 F Supp 2dat 181 ["a plaintiff may be able to argue that the warnings, in addition to being substantivelyinadequate, were insufficiently conspicuous or prominent and, thus, be able to overcome his orher failure to read them"]; Anderson v Hedstrom Corp., 76 F Supp 2d 422, 443 [SD NY1999] ["(T)he location and conspicuousness of the warnings (whether that be based on label orletter size, color, or other attributes of conspicuousness), and the role those factors played in theplaintiff's failure to read them, as well as the content and clarity of those warnings, are disputedissues . . . and the plaintiff's failure to read the warnings should not, in and of itself,prevent the 'failure to warn' claim from going before the jury"].)
The owners' manual at issue, while it discusses the procedures for starting the vehicle,contains no warnings whatsoever concerning this particular hazard. Furthermore, plaintiff wasnot the vehicle owner and was not in a position to read the owners' manual. Thus, the rationalefor barring a product owner or plaintiff from recovery due to the failure to read the warningssupplied is even less compelling (see Anderson v Hedstrom Corp., 76 F Supp 2d 422,443 [1999] [rejecting argument that plaintiff's failure to read warnings accompanying trampolineprecluded his failure to warn claim, observing that a "jury could also reasonably conclude thatthe placement of such a warning in the middle of an owner's manual, rather than (forexample) in bold letters on the trampoline itself, was insufficient to alert a user to thedanger, either because there was no notice on the trampoline about the existence of such amanual or warning, or simply because the manufacturer, by putting it in a more obvious place,might have employed 'other, more effective means of communicating its warning' "]).
In sum, I cannot agree with the majority that the vehicle owner's failure to read the manualsevered the causal connection between plaintiff's failure to warn claim and his injuries. There is apresumption under New York law that a user would have heeded warnings if they had beenprovided, and that the injury would not have occurred (see id.). This presumption can berebutted by proof that an adequate warning would have been futile since plaintiff would not haveread it; however, the burden is on the manufacturer to prove that, even if adequately warned, theplaintiff would not have read the warnings and his behavior would have remained unchanged(see Liriano v Hobart Corp., 170 F3d 264, 271-272 [2d Cir 1999] ["it is up to thedefendant to bring in evidence tending to rebut the strong inference, arising from the accident,that the defendant's negligence was in fact a but-for cause of the plaintiff's injury. This shiftingof the onus procedendi has long been established in New York"]).
I would hold that at this stage, defendant manufacturer has failed to overcome this burden[*6]and that an issue of triable fact exists regarding whether the"warnings" contained in the owner's manual were sufficient to warn the user of the danger of thecar lurching forward. [Prior Case History: 2009 NY Slip Op 30467(U).]
Footnote 1: An inspection of the car fouryears later by an employee of defendant-appellant Volvo Cars of North America, LLC revealedthat the parking brake was at the limit of its effective operation and in need of adjustment.Whether or not the parking brake was on, fully engaged or in working order on the day of theaccident was neither the focus of the motion court's decision nor the parties' arguments onappeal.
Footnote 2: In an interrogatory response,plaintiffs identified over a dozen vehicle models, made by Chevrolet, Toyota, Nissan and GMC,that were manufactured with starter interlocks before 1987.
Footnote *: In fact, Silva testified that hehad a "habit" of leaving the car in first gear. He had been taught by his father and brother toleave a car in reverse if he was parked on a downhill, and in first gear if he was parked uphill,with the parking brake, to keep himself steady on the incline. Significantly, although this was hishabit, Silva had evidently never had the experience of a car with manual transmission lurchingforward when it was started in first gear with the parking brake on.