| Hoover v New Holland N. Am., Inc. |
| 2012 NY Slip Op 07789 [100 AD3d 1495] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| Lori Hoover, Respondent, and Jessica Bowers,Respondent-Appellant, v New Holland North America, Inc., Formerly Known as Ford NewHolland, Inc., et al., Appellants-Respondents, et al., Defendants. CNH America LLC, Third-PartyPlaintiff-Appellant, v Kyle P. Andrews, Treasurer of Niagara County, as TemporaryAdministrator for the Estate of Gary Hoover, Deceased, Third-Party Defendant-Respondent.(Appeal No. 1.) |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiff-respondent and plaintiff-respondent-appellant. Augello & Matteliano, LLP, Buffalo (Joseph A. Matteliano of counsel), for third-partydefendant-respondent.
Appeal and cross appeal from a judgment of the Supreme Court, Niagara County (Richard C.Kloch, Sr., A.J.), entered September 30, 2011. The judgment, inter alia, awarded plaintiff JessicaBowers money damages upon a jury verdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.[*2]
Memorandum: CNH America LLC (incorrectly sued asNew Holland North America, Inc., formerly known as Ford New Holland, Inc. and Case NewHolland, Inc.) and Niagara Frontier Equipment Sales, Inc., formerly known as Niagara Ford NewHolland, Inc. (defendants) appeal and Jessica Bowers (plaintiff) cross-appeals from a judgmententered following a jury trial on liability and damages in this products liability action. OnOctober 2, 2004, Gary Hoover (Gary) was using a tractor-driven post hole digger (digger) ownedby Peter Smith. Gary was assisted by his wife, former plaintiff Lori Hoover (Lori), who set theauger so that a straight hole would be dug. When Lori left for work, plaintiff, who was then 16years old, began performing the same task. While Gary was operating the digger, plaintiff's coatbecame caught in the driveline that connected the tractor's power take off with the digger.Plaintiff was violently dragged into the driveline, and her right arm was severed above the elbow.Smith had removed a plastic shield that covered the area of the driveline near the gearbox afterthe shield had become damaged beyond repair during use. The shield had covered, inter alia, abolt that protruded from the driveline. Defendants contend on their appeal that they were entitledto judgment as a matter of law and that Supreme Court therefore erred in denying their pretrialmotion for summary judgment dismissing the amended complaint against them, their motion fora directed verdict during trial, and their posttrial motion for judgment notwithstanding the verdictor an order setting aside the verdict as against the weight of the evidence. They contend in thealternative that the court erred in denying their posttrial motion to the extent that they sought anorder striking the award of damages for past lost wages and a reduction in other categories ofdamages. Plaintiff contends on her cross appeal that the court erred in denying her posttrialmotion to increase the award of damages for past pain and suffering. We affirm.
" 'In order to establish a prima facie case in strict products liability for design defects, theplaintiff must show that the manufacturer breached its duty to market safe products when itmarketed a product designed so that it was not reasonably safe and that the defective design wasa substantial factor in causing plaintiff's injury' " (Adams v Genie Indus., Inc., 14 NY3d 535, 542 [2010]; seeVoss v Black & Decker Mfg. Co., 59 NY2d 102, 106-107 [1983]). "It is well settled that amanufacturer, who has designed and produced a safe product, will not be liable for injuriesresulting from substantial alterations or modifications of the product by a third party whichrender the product defective or otherwise unsafe" (Amatulli v Delhi Constr. Corp., 77NY2d 525, 532 [1991]), including "the material alteration of a product that destroys thefunctional utility of a key safety feature" (Bouter v Durand-Wayland, Inc., 221 AD2d902, 902 [1995]; see Felle v W.W. Grainger, Inc., 302 AD2d 971, 972 [2003]). However,a modification will defeat a products liability claim only where it "(a) rendered 'a safe productdefective' . . . ; and (b) caused the injuries" (Lamey v Foley, 188 AD2d 157,168 [1993]; see generally Robinson v Reed-Prentice Div. of Package Mach. Co., 49NY2d 471, 479 [1980]).
Assuming that defendants met their initial burden on their motion for summary judgmentdismissing the amended complaint against them, we conclude on this record that plaintiffssubmitted sufficient evidence to defeat that motion and on their direct case at trial to make out aprima facie case of defective design of the digger. Specifically, the proof was sufficient toestablish that, inter alia, a protruding bolt that attached the driveline to the gearbox was anentanglement hazard; the plastic gearbox shield used to guard against the protruding bolt couldbe damaged by normal use or foreseeable misuse of the digger; and there were design alternativesthat would have reduced or eliminated the hazards in the subject product and would have resultedin only a nominal increase in cost. Thus, plaintiffs presented sufficient evidence that the diggerwas defectively designed, and we further conclude that they presented sufficient evidence thatSmith's removal of the damaged gearbox shield did not constitute a substantial modification. Wefurther reject defendants' contentions that the proof was insufficient to establish that the defectivedesign of the digger was a substantial factor in causing plaintiff's injuries or that an alternativedesign would have prevented the accident. Likewise, the verdict was not against the [*3]weight of the evidence because it cannot be said that the verdictcould not have been reached on any fair interpretation of the evidence (see Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]; Campo v Neary, 52 AD3d 1194, 1197 [2008]).
As to the damages, we reject defendants' contention that the jury awards for past and futurepain and suffering "deviate[ ] materially from what would be reasonable compensation" (CPLR5501 [c]; see generally Caprara v Chrysler Corp., 52 NY2d 114, 126-127 [1981],rearg denied 52 NY2d 1073 [1981]). We likewise reject plaintiff's contention on hercross appeal that the award for past pain and suffering was inadequate. We further conclude thatthe awards for past and future lost wages and future medical care are supported by legallysufficient evidence and, contrary to defendants' contentions, are not speculative (see Huff v Rodriguez, 45 AD3d1430, 1433 [2007]; Kirschhoffer v Van Dyke, 173 AD2d 7, 9-10 [1991]). We havereviewed defendants' remaining contentions and conclude that they are without merit.Present—Centra, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.