was removal of manufacturer-installed safety guards on bread conveyer); Frey v. Rockford Safety Equipment Co., 154 A.D.2d 899, 546 N.Y.S.2d 54, 55 (4th Dept. 1989) ("Plaintiff's injury was the direct result of her employer's installation of a switch that allowed the press to be operated without the [manufacturer-installed] barrier device"); Lovelace v. Ametek, Inc., 111 A.D.2d 953, 490 N.Y.S.2d 49, 50 (3d Dept. 1985) ("It is undisputed that on the occasion of plaintiff's injury, none of the three safety devices designed to protect those running the [machine] were operative and, further, that but for want of those devices, the accident would not have occurred").
Defendants contend that by virtue of the changes made by Copysystems, Copysystems became the de facto manufacturer of the rotary coater machine or, in the alternative, that those changes were the proximate cause of plaintiffs' injuries. Neither contention is undisputed on this record. According to the evidence submitted by the Kerns, the changes in the machine had nothing to do with safety and did not expose the nip-point or otherwise affect the safety of the rotary coater machine. Based on the disputed material facts, summary judgment on this aspect of the negligence claim is precluded.
As for Wheelabrator's final contention that the manufacturer's original design could not be the proximate cause of plaintiffs' injuries because Copysystems made a safety guard available to the machine operators, there is a factual dispute surrounding this safety guard, including whether or not it was available to Kern. Summary judgment on the issue of proximate cause cannot be granted on this record.
The negligence claim therefore survives the motion for summary judgment.
III. Copysystems' Liability
"As a general rule, when an employee is injured in the course of his employment, his sole remedy against his employer lies in his entitlement to a recovery under the Workers' Compensation Law." Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 156, 432 N.Y.S.2d 879, 412 N.E.2d 934, rearg. denied 52 N.Y.2d 829 (1980); see also Olsson v. Nyack Hosp., 193 A.D.2d 1006, 598 N.Y.S.2d 348, 349 (3d Dept. 1993); N.Y. Worker's Compensation Law 11 and 29 (McKinney 1992). Nevertheless, it is well settled that the policies underlying the Worker's Compensation Law do not preclude an employee from maintaining a common-law action against a third-party tort-feasor who may be responsible, in whole or in part, for his injuries. Billy, 51 N.Y.2d at 160; Coley v. Arnot Ogden Memorial Hosp., 107 A.D.2d 67, 485 N.Y.S.2d 876, 878 (3d Dept. 1985). In addition, in Billy, 51 N.Y.2d at 160, the New York Court of Appeals, carved out a limited exception to the exclusivity provision of the Worker's Compensation Law where an employer's liability, if any, arises solely from its independent assumption, by contract or operation of law, of the obligations and liabilities of a third-party so as to deprive the employee of a viable third-party tort-feasor. 51 N.Y.2d at 160-62.
Copysystems may only be subject to a common law action under this "Billy" exception if two conditions are satisfied; 1) its potential liability must arise solely from its assuming liability by contract or operation of law; and 2) this assumption must deprive the Kerns of a viable third-party tort-feasor defendant.
Copysystems' potential liability for Kern's injuries arises out of its express agreement to assure all liabilities relating to Wheelabrator's copy products division.
Copysystems' liability, if any, is solely attributable to its independent assumption, "by contract or operation of law," of a third-party's liability. Billy, 51 N.Y.2d at 156, 432 N.Y.S.2d at 881.
These facts also support the proposition that Copysystems' assumption of liability left the plaintiffs without the means to hold the predecessor, Wheelabrator, directly accountable as a third-party tort-feasor for the initial design of the coating machine. See Billy, 51 N.Y.2d at 161, 432 N.Y.S.2d at 884. The limited exception to the exclusivity provision of the Workers' Compensation Law carved out by the New York Court of Appeals in Billy applies where the employer's assumption of liability deprives the employee of a cause of action against a potential third-party tortfeasor. See Lynn v. McDonnell Douglas Corp., 134 A.D.2d 328, 520 N.Y.S.2d 804, 806 (2d Dept. 1987).
While neither party has cited cases to support the application of the Billy exception to this circumstance, namely where the plaintiff is deprived of a cause of action due to the assumption of the third party tortfeasor's liability by agreement, as is the case here, the extension seems an appropriate reading of Billy. As a result, the claim of negligence remains as against Copysystems.
For the reasons discussed above, the motion to dismiss the warranty and products liability claims are granted, the motion for summary judgment on the negligence claim is denied as against Copysystems. The motion for summary judgment for the claims against Wheelabrator is granted, in so far as its liability relating to this claim were assumed by Copysystems. The issues surviving this motion are: 1) whether the coater machine, as designed more than twenty years before the accident giving rise to this action occurred, was the proximate cause of Kern's injuries; and 2) whether Copysystems became the manufacturer because of modifications it made that substantially modified the safety features of the machine.
It is so ordered.
New York, N. Y.
March 1, 1995
ROBERT W. SWEET