| Houston v McNeilus Truck & Mfg., Inc. |
| 2014 NY Slip Op 01858 [115 AD3d 1185] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| Luz M. Houston, as Administratrix of the Estate of RobertM. Houston, Sr., Deceased, Respondent, v McNeilus Truck and Manufacturing,Inc., Appellant, et al., Defendants. |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (James H. Dillon, J.),entered April 18, 2013. The order, among other things, denied in part the motion ofdefendant McNeilus Truck and Manufacturing, Inc. for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by granting the motion with respect to the manufacturing defect claims anddismissing those claims and all cross claims based on that theory againstdefendant-appellant and as modified the order is affirmed without costs.
Memorandum: In this negligence action in which plaintiff seeks damages arisingfrom the decedent's death during a garbage truck accident, McNeilus Truck andManufacturing, Inc. (defendant), as limited by its notice of appeal, contends thatSupreme Court erred in denying those parts of its motion for summary judgmentdismissing the claims and all cross claims against it for a manufacturing defect,"conscious pain and suffering/preimpact terror," and failure to warn. We agree withdefendant that the court erred in denying its motion with respect to the claims for amanufacturing defect and we therefore modify the order by dismissing those claims andall cross claims based on that theory against defendant. Defendant met its initial burdenby establishing as a matter of law that the truck at issue was not defective and that amanufacturing defect therefore did not cause plaintiff's injuries (see generally Ramos v HowardIndus., Inc., 10 NY3d 218, 222-224 [2008]), and plaintiff failed to raise a triableissue of fact in opposition (see generally Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]). Indeed, we note that, in its brief on appeal, plaintiff failed to addressdefendant's contention that the court erred in denying that part of its motion.
Contrary to defendant's contention, however, we conclude that the court properlydenied those parts of its motion for summary judgment dismissing the claims forconscious pain and suffering and preimpact terror. Although "a plaintiff bears theultimate burden of proof at trial [*2]on the issue ofconscious pain and suffering, on a motion for summary judgment the defendant bears theinitial burden of showing that the decedent did not endure conscious pain and suffering"(Gaida-Newman vHoltermann, 34 AD3d 634, 635 [2006]; see Dmytryszyn v Herschman, 98 AD3d 715, 715-716[2012]; Haque v Daddazio,84 AD3d 940, 941 [2011]). With respect to such a claim, it is well settled "thatsummary judgment should not be granted where a party—such as defendant[ ]herein— . . . [establishes] that a decedent was unconscious whenfound at the scene and continued to be unconscious thereafter, if the [evidence does] notestablish the decedent's unconscious condition during the interval immediately after theaccident but before emergency help arrived" (Barron v Terry, 268 AD2d 760,761 [2000]). Here, although defendant established that decedent's coworker found himunresponsive a short time after the accident, defendant failed to establish decedent'scondition in the short time before that. Similarly, defendant failed to establish as a matterof law that decedent did not experience preimpact terror (see generally Lang vBouju, 245 AD2d 1000, 1001 [1997]).
Contrary to defendant's further contention, the court also properly denied that part ofits motion with respect to the claim for failure to warn. "A manufacturer has a duty towarn against latent dangers resulting from foreseeable uses of its product of which itknew or should have known . . . A manufacturer also has a duty to warn ofthe danger of unintended uses of a product provided these uses are reasonablyforeseeable" (Liriano v Hobart Corp., 92 NY2d 232, 237 [1998]). " 'The natureof the warning and to whom it should be given depend upon a number of factorsincluding the harm that may result from use of the product without the warnings, thereliability and adverse interest of the person to whom notice is given, the kind of productinvolved and the burden in disseminating the warning' " (Chien Hoang v ICMCorp., 285 AD2d 971, 972 [2001]; see generally Cover v Cohen, 61 NY2d261, 276 [1984]). Consequently, " '[i]n all but the most unusual circumstances, theadequacy of a warning is a question of fact' to be determined at trial" (Johnson v UniFirst Corp., 90AD3d 1539, 1540 [2011]; see Repka v Arctic Cat, Inc., 20 AD3d 916, 918 [2005]).Here, defendant failed to meet its burden of establishing as a matter of law that thewarnings were adequate or that the failure to give warnings was not a proximate cause ofthe accident (cf. Pizzaro v City of New York, 188 AD2d 591, 593 [1992], lvdenied 82 NY2d 656 [1993]). In any event, even assuming, arguendo, that defendantmet its initial burden on the motion by submitting the affidavit of its expert, we note thatthe expert's affidavit submitted by plaintiff in opposition to the motion "presented acredibility battle between the parties' experts, and issues of credibility" may not bedecided on a motion for summary judgment (Barbuto v Winthrop Univ. Hosp.,305 AD2d 623, 624 [2003]; seeBaity v General Elec. Co., 86 AD3d 948, 952 [2011]). Present—Smith,J.P., Lindley, Valentino and Whalen, JJ.