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ARTICLE ID 201489

$________ – PRODUCT LIABILITY –FRONT END LOADER DEFECT – ABSENCE, AS STANDARD SAFETY EQUIPMENT, OF "SPECIAL APPLICATIONS KIT" TO PREVENT OBJECTS FROM ENTERING OPERATOR’S CAB – 28-YEAR-OLD DECEDENT KILLED WHEN A TREE HE WAS ATTEMPTING TO KNOCK DOWN ENTERED THE CAB AND CRUSHED HIM AGAINST THE REAR WALL – COURT DECLINES TO CHARGE JURY THAT DEFENDANT COULD BE RELIEVED OF LIABILITY UNDER “SCARANGELLA” RISK/UTILITY ANALYSIS AS TO KNOWLEDGEABLE END-USERS IN THIS EQUIPMENT RENTAL SITUATION - TRIAL COURT RULING IS AFFIRMED BY APPELLATE DIVISION.

Queens County, NY

This case involved a 28-year-old decedent who was operating a rented front end loader when a nine-foot-tall tree he was attempting to remove entered the open operator cab and crushed him against the rear of the cab, killing him. The plaintiff contended that the loader was defective for use by the public because it did not include, as standard equipment, a “Special applications kit,” which incorporated a reinforced front cab door as a standard safety feature instead of as an optional feature. The plaintiff further contended that the defendant manufacturer and its co-defendant sales company were aware that this machine was being sold to an equipment rental company and, therefore, should have included the special applications kit as standard safety equipment. The plaintiff maintained that had these steps been taken, the tree would not have entered the operator’s cab and the decedent would not have been killed. The defendant equipment rental company maintained that it had opted to purchase the equipment without the special applications kit for financial reasons. As against this defendant, the plaintiff alleged that the loader was defective because it was rented without adequate warnings or training for its safe use. The defendant manufacturer contended that the special applications kit was not included as standard equipment on the subject loader because it was not applicable for many of the common uses the loader would be put to. In addition, this defendant further contended that the decedent had misused the loader by attempting to use it to knock over a tree.

The evidence revealed that the decedent had rented the loader from the defendant heavy equipment rental company, which had purchased it from the defendant manufacturer and its related co-defendant sales company. The plaintiff presented an expert engineer who testified that every loader that is sold to a rental outlet to be rented to the public should have been equipped with the special applications kit because of the minimal costs of including such protection, and the known danger of objects penetrating the loader cab. In his opinion, placing the machine in the rental market without a front protection door was a design defect. The plaintiff’s expert additionally testified that the rental company should have had employees available to train equipment renters in the proper use of the loader and provide other appropriate safety instructions. The plaintiff’s expert asserted that the simply handing renters the safety manuals and operating instructions that came with the loader, which did not warn against using it for knocking down trees, was wholly inadequate and the plaintiff denied that the decedent had misused the product by attempting to remove a tree with it.

The defendant manufacturer’s former product safety manager testified that the subject loader was sold with a bucket attachment which could be safely used without the special applications kit, which kit included the protective Lexan front door. According to this witness, the purpose of the bucket attachment is to dig, carry, and dump loose materials, and operators are instructed to carry such loads low to the ground. In contrast, a loader equipped with certain other types of attachments, like a brush saw or a hydraulic breaker, would require the installation of the special applications kit due to the risk of objects coming into the cab when such attachments were used. The witness testified that there were benefits to not having the special applications kit installed as standard equipment, including the fact that the absence of a front safety door made it easier for operators to get in and out of the cab, and also improved visibility. He testified that essentially, the decedent had misused the loader by attempting to knock down the tree that crushed him.

The defendants further maintained that the jury should be instructed to the effect that they could consider that under Scarangella v Thomas Built Buses, (93 NY2d at ________), the user was in the best position to assess the safety of the product without the optional safety feature. According to Scarangella, the risk/tility factors that must be considered are: (1) the product’s utility to the public as a whole; (2) its utility to the individual user; (3) the likelihood that the product will cause injury; (4) the availability of a safer design; (5) the possibility of designing and manufacturing the product so that it is safer; (6) the degree of awareness of the potential danger that can be attributed to the injured user; and (7) the manufacturer’s ability to spread the cost of safety-related design changes (see Denny v Ford Motor Co., 87 NY2d ________, ________). These factors are “Rooted in a recognition that there are both risks and benefits associated with many products and that there are instances in which a product’s inherent dangers cannot be eliminated without simultaneously compromising or completely nullifying its benefits” (id. at ________). The defendants pointed to other cases where the Scarangella analysis was found to be justified in defeating a product liability claim in a rental situation. The plaintiff countered that the trial court properly determined that the Scarangella exception was inapplicable. The plaintiff pointed out that the manufacturer knew that the purchaser would rent it out to consumers for their personal use, over whom they had no control, and who might lack any experience operating heavy equipment.

The decedent was unmarried and lived with his parents, helping them in their family-owned restaurant. The trial Court ruled that there was insufficient evidence to charge the jury regarding the decedent estate’s pecuniary losses. The plaintiff’s expert clinical pathologist related that as the tree invaded the operator’s cab, it tore the inside wall of the decedent’s abdomen, lacerated his liver, and fractured his sternum and multiple ribs as it crushed him against the rear of the cab. This expert opined that the decedent had suffered conscious pain and suffering for at least five minutes. The plaintiff also maintained that the decedent undoubtedly experienced great terror in addition to the excruciating physical pain caused by his horrific injuries.The jury found the defendant rental company 50% liable, the manufacturer 25% liable, and its sales company 25% liable. They then awarded plaintiff $________ for the decedent’s conscious pain and suffering. This verdict was subsequently affirmed by the Appellate Division, 2nd Dept.

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