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New York County, N.Y.

The plaintiff pedestrian, aged 59 at the accident and 66 at trial, contended he was struck by building material and debris which fell when a pulley on a construction crane failed as he was walking by, resulting in the crane striking the building next to which he was walking. The plaintiff contended that the crane pulley, also known as a "Sheave," manufactured by the defendant was defectively constructed of an aluminum alloy which is vulnerable to inherent internal cracking during casting. The plaintiff maintained that he suffered severe facial, skull, shoulder, arm and hand fractures, permanent brain damage manifesting in severe disorientation and paranoid delusions, a frozen shoulder and nerve damage in the left leg which would cause a permanent severe limp. The plaintiff further contended that the co-defendant crane owner was negligent in utilizing this particular crane due to its awareness of prior problems related to the sheave defect. The crane owner brought a claim against the sheave manufacturer for property damage and the defendant sheave manufacturer brought a cross-claim against the crane owner. The plaintiff contended that the defendant sheave manufacturer acted in a willful, reckless and wanton fashion in that it was aware of the potential for latent cracks, and yet failed to so advise users, and further failed to inform the crane owners after an earlier, pre-accident failure of sheaves, that stronger steel sheaves were available. The plaintiff maintained that this defendant, which offered to replace any of its sheaves that were manifesting cracking after the instant accident, acted in further reckless, willful and wanton disregard for safety in refusing to replace all of its aluminum alloy sheaves, since the alloy rendered the cranes dangerous even in the absence of visible signs of failure and that the defendant acted in an egregious manner in failing to replace all of the allegedly defective sheaves supplied for the approximately ________ such cranes in use. A punitive damages claim was, therefore, entered.

The evidence revealed that the plaintiff was walking on a sidewalk in Manhattan across the street from the construction project, when the boom suddenly fell free and struck a building on the plaintiff’s side of the street, causing debris from the building to crash to the ground and strike the plaintiff. The plaintiff’s expert metallurgist contended that the subject aluminum alloy sheave was particularly vulnerable to the formation of interior voids during casting, and contended that an alternative alloy, or steel should have been utilized. The crane’s hydraulic motor malfunctioned during the incident and the plaintiff’s crane experts contended that the sheave failure resulted in extraordinary force being placed on the hydraulic system, causing internal damage to the hydraulics and permitting the boom to fall free. The defendant sheave manufacturer countered that the hydraulic failure preceded the sheave failure and caused the accident. The sheave manufacturer maintained that the crane owner replaced tubing in the hydraulic motor with unspecified, weaker tubing and contended that this alteration caused a fracture in a coupling, or nipple of the hydraulic motor prior to the sheave failure, resulting in the subsequent sheave failure. The plaintiff countered through an eyewitness working on the project that he initially heard a crash and subsequently felt a spray of hydraulic fluid, and the plaintiff contended that it was obvious the sheave failed first. The plaintiff and crane owner contended that since the sheave manufacturer did not present expert testimony, its position that any alteration by the crane owner contributed to the incident should not be accepted.

The crane owner, which had two cranes of the subject model in use, experienced a complete failure of a sheave on one crane and signs of external sheave cracking on the other several years before the subject incident. These sheaves were subjected to metallurgic testing and following this testing, the crane owner advised the sheave manufacturer that in its opinion, the alloy was inadequate. The manufacturer then provided replacement parts made from the same alloy. The manufacturer contended that since the crane owner was of the opinion that this alloy was inadequate, the owner was negligent in continuing to utilize the crane with a sheave of the same metallurgic composition. The crane owner countered that although it was aware that the fractured sheave was constructed of an inadequate alloy, the manufacturer had represented that the replacement sheaves were not defective and that it reasonably relied upon this representation. The crane owner indicated that it submitted the replacement part and specifications to applicable City inspectors who found no evidence of defect. The crane owner maintained, therefore, that it could not reasonably determine that the instant sheave was defective.

The plaintiff maintained that the sheave manufacturer had reason to know that the subject alloy was inadequate, pointing to the fact that prior to the accident, it had decided to replace the alloy sheave with a steel sheave. The plaintiff contended the defendant should have advised the crane owner of the safer alternative steel sheave available at a relatively low cost. A non-party purchaser of the sheaves had experienced fatigue difficulties and was advised of the alternative steel sheave several years prior to the subject accident, and the plaintiff and crane owner contended that the defendant should have advised the co-defendant crane owner of this replacement part. The plaintiff maintained that in view of the defendant’s alleged knowledge of the alloy’s inadequacy, its failure to advise the crane owner of the alternative, steel sheave was reckless, willful and wanton, warranting punitive damages.

After the subject accident, the defendant contacted its customers, advising that it would replace any sheaves displaying cracks. The plaintiff maintained that the defendant refused to replace any sheave not exhibiting external cracking. The plaintiff’s expert metallurgist contended that latent, internal defects in the sheaves could be present without external cracks appearing prior to failure. The plaintiff contended that in view of this testimony, it was obvious the defendant acted in a wanton, willful and reckless manner in the way it conducted its recall, especially since there were only approximately ________ cranes containing these sheaves owned by some 20 to 30 customers.

The plaintiff’s rehabilitative specialist contended the plaintiff suffered more than 20 fractures including facial, skull and shoulder fractures. The plaintiff’s psychiatrist/neurologist maintained that the skull fracture caused significant brain damage manifesting in severe disorientation, a diminution in short and long term memory, and paranoid delusions. The plaintiff has been confined to a nursing home which his experts contended will probably be permanent. The rehabilitation specialist contended the shoulder fracture resulted in a permanently frozen shoulder. The physicians indicated that the plaintiff also suffers leg nerve damage causing a permanent, severe limp. The permanent facial scarring was slight. The plaintiff messenger contended he will be permanently unemployable. The plaintiff, who was 66 at trial, contended he would have continued working for some time if it had not been for the incident.

The defendant crane owner’s motion for dismissal was granted since there was no evidence that it was aware that the replacement sheave supplied by the manufacturer was defective, and since it had no means of ascertaining the availability of the alternative steel part. The plaintiff had also contended that the project owner, its general contractor, and the co-defendant crane operator, negligently failed to place a flagman on the street to keep pedestrians from traversing the zone of danger. These defendants contended that there was no proof presented that a flagman was not properly positioned or that the plaintiff was in an area which would be required to be closed off and the Court dismissed this aspect. The plaintiff also named the City’s engineering company which certified the replacement part as fit.

The plaintiff did not present expert testimony against this engineering company and this aspect was also dismissed. The labor law did not come into effect in this action involving a pedestrian passer-by. The jury found that the sheave was defective, that this defect caused the accident, that the defendant sheave manufacturer had acted recklessly and wantonly, warranting punitive damages, and then awarded $________ compensatory and $________ punitive damages. The jury also found for the crane owner as a plaintiff, awarding $________ in property damage. Plaintiff’s metallurgist: George Fischer from New York Polytechnic Inst. in Brooklyn. Plaintiff’s crane expert: Jacob Grill from New York City. Camillo vs. Olympia and York, Property Co., et al. Index no. ________-82; Judge Edward Greenfield, 6-24-88. Attorney for plaintiff: Richard E. Schrier of Garden City, N.Y.; Attorney for defendant sheave manufacturer: William Warner of Simmer, Fish & Warner in Manhattan; Attorney for defendant crane owner: Ray LeFlore of Manhattan; Attorney for defendant crane operator: James Yukevich of Lester, Schwab, Katz & Dwyer in Manhattan; Attorney for defendant engineering company: Glenn Fuerth of Wilson, Elser, Moscowitz Edelman & Dicker in Manhattan; Attorney for owner: (Olympia and York) and general contractor: Gerald Swartz of Bower & Gardner in Manhattan.

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