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February 8, 1983

LOUISE KERR, Individually and as Guardian Ad Litem for EVA KERR, an Infant, Plaintiff,
RONALD KOEMM, ESTHER KOEMM & SADIE C. RODO, Defendants; RONALD KOEMM and ESTHER KOEMM, Defendants and Third-Party Plaintiffs, v. PAUL KERR and FORD MOTOR COMPANY, Third-Party Defendants

The opinion of the court was delivered by: LEVAL



 Eva Kerr, a three-year-old child, was injured in an accident involving a tractor driven by her father Paul Kerr, a farm worker, and owned by his employers, the Koemms. This diversity action in tort was brought on Eva's behalf by her mother Louise Kerr against the Koemms and against Sadie C. Rodo, the owner of the land on which the accident took place.

 The Koemms, as third-party plaintiffs, sued Eva's father Paul Kerr and Ford Motor Company, the maker of the tractor. Plaintiffs have asserted no claim against either third-party defendant. Ford moves for summary judgment, and Paul Kerr moves to dismiss. Ford's motion is granted. Paul Kerr's motion is denied.

 Paul Kerr, a resident of Florida, did seasonal farm work in New York for the Koemms on their property and on adjacent property leased by the Koemms from Rodo. The 1977 harvest was Kerr's fourth in the Koemms' employ. In the course of harvesting apples and pears, Kerr frequently used the Koemms' tractor. Koemm's father had purchased the tractor from the manufacturer, the Ford Motor Company, about twenty years before the accident. In the intervening years it was serviced mainly by Koemm (who has engineering training), using the original owner's manual for reference. It was never serviced by Ford or any representative of Ford. Koemm Deposition, Ford's Exhibit H, at 23-30.

 On September 20, 1977, Kerr was driving the tractor in the performance of his duties. Although the tractor had only one seat, Kerr took his wife, three-year-old Eva and another daughter, six-year-old Lorna, riding on it. Eva rode standing on a kind of running board, a horizontal plate about seven inches wide and two feet long, located near the clutch pedal at the driver's left foot, in front of the wheel and about halfway up it. She was holding onto her father's shirt. It appears Eva frequently rode perched in this fashion. According to the Kerrs' testimony, they were on an uphill grade when the tractor pitched back, throwing both daughters off. Eva was run over by the left rear wheel and suffered serious injuries.

 The Kerrs and Koemms dispute the facts concerning the practice of riding the children on the tractor. The Kerrs testify that they did it regularly and that the Koemms knew about it and either approved, acquiesced or at least failed to warn against it. The Koemms testify that they had warned the Kerrs against the practice and did not realize it was still being done. The Kerrs also claim that the mother worked alongside the father, with the Koemms' knowledge, and that the children helped them work; the Koemms state that they expected only the father to work.

 The plaintiffs claim that the Koemms' negligence was responsible for the accident. In particular, they claim that the Koemms permitted the dangerous practice of riding the children on the tractor, failing to warn the Kerrs against it. They also claim that the tractor was dangerous for the use to which it was put.

 The third-party claims at issue are claims for indemnity or contribution by the Koemms against Ford and against Paul Kerr, in the event the Koemms are found liable to plaintiffs. "Under New York law a party seeking contribution must prove that the party from whom contribution is sought is at least partially responsible for the accident." Robinson v. Shapiro, 646 F.2d 734, 739 (2d Cir. 1981). See D'Ambrosio v. City of New York, 55 N.Y. 2d 454, 450 N.Y.S. 2d 149, 435 N.E.2d 366 (1982).

 New York law recognizes three types of defect which may give rise to a manufacturer's liability for injury from his product: mistake in manufacturing, improper design, and inadequate warnings to users. Robinson v. Reed-Prentice Division, 49 N.Y. 2d 471, 478-79, 426 N.Y.S. 2d 717, 720, 403 N.E.2d 440 (1980). Third-party plaintiffs assert all three as grounds for relief from Ford in the event they are held liable to the plaintiff. They claim that plaintiff may show defects of manufacturing or design of the tractor, and they charge that Ford is responsible for failing to warn of the danger of riding more than one person on the tractor. These claims are in strict liability. Robinson, supra. The legal standard to be applied to each is whether the manufacturer acted reasonably. Lancaster Silo & Block v. Northern Propane Gas, 75 A.D. 2d 55, 427 N.Y.S. 2d 1009, 1013-14 (4th Dept. 1980); W. Prosser, The Law of Torts 644 (4th ed. 1971). Summary judgment, of course, should not be granted without caution. Cf. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2729; 6 Moore's Federal Practice P 56.17[42]. Nonetheless, those opposing summary judgment must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). They have not done so.


 The Koemms claim that they would have a right of contribution or indemnity from Ford if plaintiffs show that the tractor had a defect of design or construction for which Ford must share responsibility. The plaintiffs allege simply that the tractor was defective because "the front portion of said tractor would shoot up or rise in the air without notice." Plaintiff's Answers to Interrogatories, No. 83(i). As against the Koemms, plaintiffs claim that Koemm should have affixed weights to the front of the tractor. In response to Ford's summary judgment motion, however, both the Koemms and the plaintiffs stand on the naked allegation that the tractor reared up. They have advanced no specific theory or allegation of defectiveness. Plaintiffs, responding to the Ford motion although having made no claim against Ford, expressly disavow any intention to introduce expert testimony or any other facts beyond a recitation of how the accident happened. Koemm did hire an expert, who concluded there were no defects in the tractor. Ford's Exhibit K, Report of Mr. Zamparo.

 Plaintiffs and the Koemms each cite cases to show that defective design can be found on circumstantial evidence and without expert testimony. In Jackson v. Melvey, 56 A.D. 2d 836, 392 N.Y.S. 2d 312 (2nd Dep't 1977), the court affirmed a jury finding against an auto maker for a defect "absent expert testimony [or] competent direct evidence of a defect," 392 N.Y.S. 2d at 314. In Codling v. Paglia, 32 N.Y. 2d 330, 345 N.Y.S. 2d 461, 298 N.E.2d 622 (1973), the Court of Appeals affirmed a jury verdict against an auto maker although no specific defect had been proved. As the Jackson court noted, however, "each case must be judged on its own facts," 392 N.Y.S. 2d at 314. The circumstances that permitted a jury to infer a manufacturer's defect in those cases are wholly absent here.

 The Jackson court relied particularly on the fact that the car was only three weeks old at the time of the accident and had already been serviced once for a steering problem similar to that involved in the accident. It also noted that the complete destruction of the car prevented expert examination of its steering mechanism. The Codling case involved a four-month-old car, and the court there relied on the driver's testimony that he tried to steer the car to the right and could not. Here the facts of the accident carry no strong circumstantial inference of a manufacturing or design defect. Moreover, the tractor is available for examination and testing, which plaintiffs expressly decline to perform. But most important, the tractor was at least twenty years old, and had never been serviced by Ford. ...

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