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KERN v. ROEMER MACH. & WELDING CO.

October 30, 1992

WILLIAM KERN and DOROTHY KERN, Plaintiffs, against ROEMER MACHINE & WELDING CO., Defendant. ROEMER MACHINE & WELDING CO., Third-Party Plaintiff, - against - FRYE COPYSYSTEMS, INC., Third-Party Defendant.

SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D. J.

 The defendant and third-party plaintiff Roemer Machine & Welding Co. ("Roemer") has moved for summary judgment pursuant to Rule 56, Fed. R. Civ. P. and Civ. R. U.S.D.C. 3 against plaintiffs William and Dorothy Kern (the "Kerns"). Third-party defendant Frye Copysystems, Inc. ("Frye"), joins the motion for summary judgment.

 The Kerns have moved for an order pursuant to Fed. R. Civ. P. 12(f) & (c) striking the "Third Affirmative Defense" of the defendant's answer on the grounds that Roemer did have substantial input and responsibility for the design of the allegedly defective machine.

 For the reasons given below, the defendant's motion for summary judgment is granted, and the plaintiffs' motion is denied.

 The Parties

 Roemer is a custom machine shop which constructs and assembles machines used for inter alia, the inking of carbon paper.

 Frye is a manufacturer located in Newburgh, New York.

 William Kern is a machine operator formerly employed by Frye. Dorothy Kern is his wife.

 The Pleadings

 This case is a personal injury action, including allegations of loss of consortium, stemming from an accident which occurred at Frye's Newburgh, New York plant on February 16, 1990. Kern, who had been employed full-time by Frye for the past seven years as a coating machine operator but had been trained on this machine for thirty days, was cleaning a pressure roll of the running machine with a rag. The rag apparently became caught and dragged his hand between the rolls, causing severe and permanent injuries to his right hand. Mr. Kern does not specifically recall how the accident occurred and there were no witnesses. The Kerns recovery against the employer Frye for his injuries suffered on the job is limited to the relief allowed by workman's compensation, N.Y. Workman's Compensation Law § 1 et seq. (McKinney 1992).

 The Kerns allege three causes of action against Roemer, for negligence, breach of warranty, and strict products liability. Each claim is premised on the contention that Roemer manufactured a product whose defective design failed to include a cover or guard that would prevent the worker's hand from getting caught, or dual controls which would require both hands to move the rollers. Since Roemer maintains that Kern's injuries were caused by Frye's failure to supervise him adequately, Roemer has impleaded Frye as a third-party defendant.

 Roemer has interposed affirmative defenses alleging, first, that the Kerns do not have personal jurisdiction over Roemer; second, that the Kerns have failed to state a claim upon which relief can be granted; third, that the machine was not manufactured according to Roemer's directions; and fourth, that any injuries ...


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