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KERN v. FRYE COPYSYSTEMS

March 1, 1995

WILLIAM KERN and DOROTHY KERN, Plaintiffs, against FRYE COPYSYSTEMS, INC., FRYE INDUSTRIES, INC., WHEELABRATOR-FRYE CO., FRYE MANUFACTURING CO., IMPEL INDUSTRIES, INC., and PACIFIC INDUSTRIES, INC., defendants.

ROBERT W. SWEET, U.S.D.J.


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

Sweet, D. J.

 Defendants Frye Copysystems, Inc. ("Copysystems") and Wheelabrator-Frye Co. ("Wheelabrator") have moved for summary judgment pursuant to Rule 56, Fed. R. Civ. P. against William Kern ("Kern") and Dorothy Kern (collectively the "Kerns").

 For the reasons discussed below, Wheelabrator's motion with regard to the claims against it for breach of warranty and strict products liability are granted; its motion with respect to the claim of negligence against Copysystems is denied.

 The Parties

 Copysystems is a manufacturer located in Newburgh, New York. Wheelabrator is its parent company.

 Frye Manufacturing Co., Pacific Industries, Inc., and Impel Industries, Inc. are predecessors to Wheelabrator by way of mergers and name changes.

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

 Prior Proceedings

 A related case, Kern v. Roemer Machine and Welding Co., 820 F. Supp. 719, (91 Civ. 615), was originally brought in 1991 by these same plaintiffs against Roemer, the manufacturer of the machine at issue in this case. The defendant, Roemer, impleaded Copysystems as a third-party defendant. In an Opinion dated October 30, 1992, this Court granted summary judgment to Roemer finding that as the manufacturer of the machine it could not be held liable for claims premised on defective design. This effectively dismissed the action as originally brought.

 Pursuant to a Summons with Notice and Verified Complaint, the Kerns instituted an action in Supreme Court, Orange County, against defendants in December 1992. The complaint sought damages for personal injuries sustained by Kern. On the basis of diversity of citizenship, this action was timely removed to this Court on January 19, 1993. Argument was heard on the present motion to dismiss on November 2, 1994. Submissions were received from the parties until November 2, 1994, and the motion was considered fully submitted as of that date.

 The Facts

 This case is a personal injury action, including allegations of loss of consortium, stemming from an accident which occurred at Copysystems' Newburgh, New York plant. Kern was hired by Copysystems as a coating machine operator in 1983 and at the time underwent a one-month training period on the operation of such machines. On February 16, 1990, Kern, who had been employed full-time as a coating machine operator since 1983, was cleaning a pressure roll on a rotary coating machine (the "coating machine" or the "machine") with a rag while the machine was kept running. According to Kern, the rag was caught in the machine which dragged his hand between two pressure 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 design specifications, instructions and blueprints for the rotary coating machine were provided by Frye Manufacturing Company, and the machine was constructed according to those specifications in or about 1969 and 1970. Frye Manufacturing Company merged with Pacific Carbon & Ribbon Manufacturing Company in 1963 and became Frye-Pacific Carbon & Ribbon Manufacturing Company. This entity changed its name in 1965 to Impel Industries, Inc., ("Impel"), and Impel changed its name in 1967 to Frye Manufacturing Company ("Frye Manufacturing[2]"). Frye Manufacturing[2] merged with Pacific Industries, Inc. and became Frye Industries, Inc. Subsequently, in 1971 or 1972, Frye Industries, Inc. merged with other corporations and the resulting entity became the Wheelabrator-Frye Company. Thereafter, in 1972, Wheelabrator formed a subsidiary, Copysystems, which obtained all the assets of Wheelabrator's copy products division, including the rotary coater machine, in return for assuming all of the division's liabilities. To sum up, the succession of liability ...


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