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Nassau County, NY

The plaintiff contended that the asphalt truck manufactured in Kentucky by one of the defendants and sold by the co-defendant, a Long Island distributor, was defective because a set of safety chains, that would prevent the tailgate door from opening if the latch failed, was not assembled prior to delivery to the municipal employer. The plaintiff contended that as a result, the tailgate opened and hot asphalt poured out, causing third and fourth degree burns to 50% of the body, including the abdomen, legs, buttocks, left arm and left hand. The plaintiff required six surgical procedures. He was left with massive scarring below the waist. The plaintiff did not suffer burns in the genital area. The distributor had $________ in coverage and the manufacturer had $________ in insurance.

The evidence disclosed that the plaintiff was working on an asphalt paving crew while he was behind a dump truck holding the hot asphalt, the tailgate suddenly opened, dumping asphalt. It was undisputed that the latches holding the tailgate were not properly secured and that it probably stemmed from a prior accumulation of dried asphalt. It was also undisputed that had safety chains been attached from both sides of the tailgate to the truck body, the chains would have prevented the tailgate from opening.

The plaintiff maintained that the proper design would have been to initially weld or bolt the safety chains onto the tailgate, which neither the manufacturer nor the seller did. The manufacturer, from Kentucky, conceded that at times safety chains were permanently affixed to the tailgate if they were delivered locally, but contended that when trucks were driven substantial miles before arriving at the seller, the safety chains would not be attached to the tailgate because the chains would bang the truck and chip the paint during the long drive.

The seller/distributor did not permanently affix the safety chains to the truck and had loosely hung them from the tailgate when they were delivered with instructions. The truck itself also contained warnings advising that the chains needed to be installed, but the evidence reflected that asphalt had previously rendered such labels illegible.

The plaintiff maintained that the defendants could not discharge their obligations to warn or place the onus on the employer when the misuse by the employer was foreseeable. The plaintiff contended that the accident easily could have been prevented if either of the defendants attached the safety chains to the tailgate to avoid any risk of human error. The plaintiff’s expert engineer testified that the manufacturer’s reason for not affixing the tailgate was faulty and he demonstrated at trial the various protective coverings, including simple and inexpensive rubber, which could have easily been placed over the safety chains so as to prevent any paint chipping during the journey.

The plaintiff suffered third and fourth degree burns (burns that reach the muscles, tendons, ligaments and bones) over 50% of his body, with most of the burns being suffered below the waist. The plaintiff required some six surgeries and multiple debridements during a very painful recuperation period. The plaintiff contended that the permanent scarring is severe. The plaintiff also maintained that four of the toes on one foot were partially amputated, that he cannot walk in bare feet, and has a noticeable limp even when wearing shoes. The plaintiff also contended that he is permanently unemployable. The plaintiff further contended that everyday activities are painful and difficult.The case settled after close of the plaintiff’s case for $________, including $________ from the distributor and $________ (policy limit) from the manufacturer.

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