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In Passante v. Agway Consumer Products, the plaintiff, an employee of a loading company, was injured while using a mechanical dock leveler at his company’s warehouse.1 The plaintiff was standing on the leveler while loading products onto a truck, but did not realize that the dock lever was not yet secured. The truck was then moved, causing the leveler to collapse, thereby injuring the plaintiff.

The plaintiff brought suit against his employer, the manufacturer of the mechanical platform, and the company that sold it to his employer, alleging that the leveler:

was defectively designed by Rite-Hite because it lacked equipment restraining the tractor trailer or securing it to the loading dock while the dock leveler was in use, and lacked a system to warn the operator when it was safe to enter the trailer or, in the alternative, notifying the driver that a dock leveler was in position.2

Plaintiff’s employer was eventually dismissed from the case, limiting its liability to workers compensation damages. Extensive discovery revealed that safety equipment was optional, but recommended, and that the employer chose not to buy said equipment, instead issuing various warnings. According to Plaintiff ’s expert witness, these warnings proved inadequate. Summary judgment motions were granted to the two defendants by the mid-level appellate court.

By the time the case reached the highest court in New York State, two causes of action were in dispute, namely, whether there was a defective design due to lack of proper safety equipment on the leveler, and whether there was a failure to properly warn of the dangers involved. The questions on appeal hinged on interpretation of relevant New York State precedent, Scarangella v. Thomas Built Buses, which dictates that equipment is not defective, as a matter of law, if it fails to incorporate safety equipment.3

In a 4-3 decision, the New York State Court of Appeals found that its Scarangella requirements were not met, causing it to reverse the lower court’s summary judgment motion and reinstate the causes of action for defective design and failure to warn. The majority supported the plaintiff’s position that a dock leveler of this design creates a substantial risk of harm as normally used, and that it is unreasonably dangerous without a trailer restraint system. The majority also held that there were triable issues of fact as to the sufficiency of the warnings concerning the use of the equipment, thus reinstating the cause of action for failure to warn. The majority remanded the case for a jury trial.

Justices Smith, Read, and Graffeo dissented, arguing that the majority’s decision essentially overruled Scarangella. They pointed out that Plaintiff’s employer decided against buying the safety equipment and “whether safety equipment should be bought is a decision for the buyer, not the seller and not the courts.”4 As for failure to warn, the defense wrote, “[I]t is abundantly clear that no warning could have prevented this accident.”5 Plaintiff was fully aware of the danger of using the platform leveler without it being locked or having proper support.

The dissent concluded by querying about the “real economic consequences” of this decision:

The predictability that was offered until today to manufacturers and distributors of equipment in this State is gone, and the result can only be an increase in cost—in the cost of liability insurance, and in the cost of safety features that buyers will no longer have the option to refuse… Decisions like today’s can only make things worse.6

It appears that the New York State Court of Appeals may have fundamentally “changed some contours of products liability law as it affects cases involving optional equipment, knowledgeable purchasers and off-product warnings.”7 Whether the dissent’s speculation about the “real economic consequences” is accurate remains to be seen.

* Craig Mausler is the President of Th e Federalist Society’s Albany Lawyers Chapter.

 

Endnotes

1  2009 NY Slip Op 3588 (May 5, 2009).  The leveler is inserted between the area in which the products are loaded and the truck itself.

2  Id. at 3.

3  Scarangella v. Thomas Built Buses, 717 N.E.2d 679 (N.Y. 1999).  In Scarangella, the court rejected the notion that a product which fails to use safety equipment is, as a matter of law, defective:

where the evidence and reasonable inferences therefrom show that: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer’s use of the product. In such a case, the buyer, not the manufacturer, is in the superior position to make the risk-utility assessment, and a well-considered decision by the buyer to dispense with the optional safety equipment will excuse the manufacturer from liability.

Id. at 683.

4  2009 NY Slip Op 03588 at 8 (Smith, J., dissenting).

5  Id. at 10.

6  Id. at 10-11.

7  Michael Hoenig, Optional Safety Equipment and the Savvy Purchaser,  N.Y. L. J., May 11, 2009, available at: http://www. herzfeld-rubin.com/publ_products/200905.htm.

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