Darrow v. Hetronic Deutschland GMBH

181 A.D.3d 1037

121 N.Y.S.3d 173

Cynthia DARROW, Individually and as Administrator of the Estate of Robert W. Darrow, Deceased, Appellant,

v.HETRONIC DEUTSCHLAND GMBH et al., Respondents.

528675

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 15, 2020

Decided and Entered: March 5, 2020

Martin, Harding & Mazzotti, LLP, Albany (Craig A. Cushing of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York City (Nathan T. Horst of counsel), for Hetronic Deutschland GMBH and another, respondents.

Law Offices of Tromello & Fishman, Latham (Christine D'Addio Hanlon of counsel), for Hetronic USA, Inc., respondent.

Law Offices of John Wallace, Buffalo (Murray S. Brower of counsel), for D.C. Bates Equipment Co., Inc., respondent.

Thorn Gershon Tymann and Bonanni, LLP, Albany (Erin Mead of counsel), for Palfinger AG and others, respondents.

Before: Lynch, J.P., Clark, Devine, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from an order of the Supreme Court (Auffredou, J.), entered August 24, 2018 in Washington County, which, among other things, granted defendants' motions for summary judgment dismissing the second amended complaint.

In March 2008, Robert W. Darrow (hereinafter decedent) was injured when a remote control device used to operate a boom crane allegedly malfunctioned, pinning him down and crushing him. In June 2009, decedent and plaintiff, his wife, filed a complaint against, among others, defendants Hetronic Deutschlands GMBH, Hetronic Steuersysteme GMBH and Hetronic USA, Inc., asserting claims sounding in strict liability and breach of warranty, alleging that they designed, manufactured, advertised, marketed and sold a dangerous and defective remote control.¹ Plaintiff and decedent additionally brought actions against Palfinger AG, Palfinger USA, Inc. and Palfinger, Inc. (hereinafter collectively referred to as the Palfinger defendants) and defendant D.C. Bates Equipment Co., Inc. These three actions were consolidated pursuant to a stipulation of the parties. In essence, it is alleged that the remote control device was manufactured by Hetronic Deutschland GMBH or Hetronic Steuersysteme GMBH² and then sold by its exclusive distributor, Hetronic USA, to the Palfinger defendants. The Palfinger defendants allegedly then sold the remote control to D.C. Bates, which then sold the device to decedent's employer.

After Supreme Court subsequently granted a motion by plaintiff to amend her complaint to add wrongful death and conscious pain and suffering causes of action, plaintiff filed an amended summons and complaint against all defendants raising such claims, followed soon thereafter by a second amended complaint. D.C. Bates interposed an answer with cross claims for indemnification against all three Hetronic defendants and the Palfinger defendants. Thereafter, Hetronic Deutschland GMBH and Hetronic Steuersysteme GMBH (hereinafter collectively referred to as Hetronic Deutschland) and Hetronic USA separately moved for summary judgment dismissing the second amended complaint and any cross claims against them. Subsequently, the Palfinger defendants replied in support of Hetronic Deutschland's and Hetronic USA's summary judgment motions dismissing the complaint and all cross claims. In the alternative, the Palfinger defendants asserted a cross claim for indemnification against Hetronic Deutschland and Hetronic USA and sought summary judgment on such cross claim. D.C. Bates replied and opposed the motions made by Hetronic USA and the Palfinger defendants in which they sought dismissal of D.C. Bates' cross claim for indemnification. D.C. Bates also requested that the court search the record and dismiss plaintiff's claims relating to breach of warranty against it and moved for summary judgment on its cross claim against the Palfinger defendants for indemnification. Days later, Hetronic USA, among other things, cross-claimed for conditional indemnification against Hetronic Deutschland. In August 2018, Supreme Court granted the motions by Hetronic Deutschland, Hetronic USA and the Palfinger defendants for summary judgment dismissing the second amended complaint, as well as all cross claims, against them. In addition, the court denied, as academic, Hetronic USA's motion for indemnification against Hetronic Deutschland and D.C. Bates' motion for summary judgment against the Palfinger defendants. Moreover, the court granted D.C. Bates' request for dismissal of plaintiff's breach of warranty claims against it. Finally, the court dismissed the Palfinger defendants' motion seeking a conditional order of indemnification against Hetronic Deutschland and Hetronic USA as academic. Plaintiff appeals.

"A party injured as a result of a defective product may seek relief against the product manufacturer or others in the distribution chain if the defect was a substantial factor in causing the injury" ( Stalker v. Goodyear Tire & Rubber Co., 60 A.D.3d 1173, 1174, 874 N.Y.S.2d 632 [2009] [internal quotation marks and citation omitted]; see Hoover v. New Holland N. Am., Inc., 23 N.Y.3d 41, 53, 988 N.Y.S.2d 543, 11 N.E.3d 693 [2014] ). In general, "[a] strict products liability cause of action may be presented upon a mistake in the manufacturing process, an improper design or a failure to provide adequate warnings regarding the use of the product" ( Stalker v. Goodyear Tire & Rubber Co., 60 A.D.3d at 1174, 874 N.Y.S.2d 632 [internal quotation marks, brackets and citation omitted]; see Barclay v. Techno–Design, Inc., 129 A.D.3d 1177, 1178, 10 N.Y.S.3d 665 [2015] ). Here, the issues presented are limited to whether the remote control was defectively designed.

"In order to establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing [the] plaintiff's injury" ( Hall v. Husky Farm Equip., Ltd., 92 A.D.3d 1188, 1188, 939 N.Y.S.2d 604 [2012] [internal quotation marks and citations omitted]; see Barclay v. Techno–Design, Inc., 129 A.D.3d at 1178, 10 N.Y.S.3d 665 ). "A defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use" ( Yun Tung Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29, 33, 926 N.Y.S.2d 377, 950 N.E.2d 113 [2011] [internal quotation marks and citation omitted]; see Fisher v. Multiquip, Inc., 96 A.D.3d 1190, 1193, 949 N.Y.S.2d 214 [2012] ). "To demonstrate a product was not ‘reasonably safe,’ the injured party must demonstrate both that there was a substantial likelihood of harm and that ‘it was feasible to design the product in a safer manner’ " ( Barclay v. Techno–Design, Inc., 129 A.D.3d at 1178–1179, 10 N.Y.S.3d 665, citing Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204 [1983] ). "A claim may be defeated where a defendant demonstrates that the product's utility outweighs its risks because the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product's inherent usefulness at an acceptable cost" ( Barclay v. Techno–Design, Inc., 129 A.D.3d at 1179, 10 N.Y.S.3d 665 [internal quotation marks, brackets and citation omitted] ).

In support of their motions for summary judgment, defendants offered expert affidavits of Anthony Bond and Robert J. Svare, both engineers. Bond explained that, when decedent was injured, he was using a two-part radio wireless control system consisting of a truck-mounted receiver unit and a separate radio control transmitter that allowed the operator to control "knuckle boom movement" from a safe distance. Svare personally examined, photographed and videotaped the equipment in question, including the radio remote control, and found that the system worked "flawlessly." Both Bond and Svare discussed, at length, the design of the subject radio remote control system, including its safety functions, and noted that the remote control was designed to permit the operator to stand safely outside of the zone of danger while operating the equipment. Both experts detailed the many design features that operated to prevent inadvertent engagement of the controls and provide the operator with several means to stop the operation of the equipment. Bond noted that the basic design and safety concept of the subject system is used by...