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April 7, 1995

DEERE & COMPANY, Defendant.

David N. Hurd, United States Magistrate Judge

The opinion of the court was delivered by: DAVID N. HURD

Presently before the court are numerous motions filed by both parties, as outlined below. Papers in opposition were filed, except as noted. Oral arguments by the parties were heard by the court on March 20, 1995.


 Plaintiffs filed this diversity action alleging that plaintiff Thomas Bellinger was injured while using a corn picker manufactured by defendant Deere & Company. The claims include defective design and manufacture, failure to warn of the safe and proper method of using the product, negligence, and breach of express and implied warranty. Plaintiff Betty Bellinger alleges a consequent loss of the services of her husband Thomas Bellinger.


 A. Defendant's Motions to Dismiss

 A cause of action shall not be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6), "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In considering a motion brought pursuant to Fed. R. Civ. P. 12(b), the Court must assume all of the allegations in the complaint are true. Id. Furthermore, where matters outside the pleadings are presented, the motion is treated as a motion for summary judgment and decided pursuant to Rule 56. Fed. R. Civ. P. 12(b). Summary judgment shall be granted where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

 A manufacturer of a product which it "knows or should know is dangerous if used in the usual and expected manner" has, under New York law, a duty to "adequately warn users of the product of the danger unless the danger is obvious or well known." Billiar v. Minnesota Mining & Mfg. Co., 623 F.2d 240, 243 (2d Cir. 1980) (citations omitted). However, there is no duty to warn, thus no liability for failure to warn, where the "user is fully aware of the nature of the product and its dangers." Id.; Jiminez v. Dreis & Krump Mfg. Co., 736 F.2d 51, 55 (2d Cir. 1984) (restating New York law). Thus, where an injured party knows of the danger presented by the product, no liability results from failure to warn. See Billiar, 623 F.2d at 243. Whether a party is a knowledgeable user, whether the extent of a party's knowledge of a danger is sufficient to preclude liability, and whether warnings are adequate are questions for the fact-finder. See Jiminez, 736 F.2d at 56 (extent of knowledge of danger a jury question); Billiar, 623 F.2d at 243-46; Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75 A.D.2d 55, 64, 427 N.Y.S.2d 1009 (4th Dep't 1980) (reasonableness of warnings is generally a question of fact, although in proper case duty to warn may be decided as a matter of law).

 At issue here is whether plaintiff knew of the dangers involved with operating the cornpicker, such that defendant had no duty to warn. The second issue is whether the danger of the husking box was open, obvious, and well-known, such that defendant had no duty to warn plaintiff of the danger. Defendant cites Van Buskirk v. Migliorelli, 185 A.D.2d 587, 586 N.Y.S.2d 378 (3d Dep't), appeal denied, 80 N.Y.2d 761, 592 N.Y.S.2d 670, 607 N.E.2d 817 (1992), in support of its argument that the danger was open and obvious, negating the duty to warn. In Van Buskirk an experienced farmer was injured when his upper extremity was pulled into an unguarded power take-off (PTO). The court found as a matter of law that the failure to warn claim must be dismissed because the forage wagon involved was manufactured and sold with appropriate warnings, which had been subsequently removed or obliterated. Id. at 590. The guards covering the PTO had also been removed. Id. at 589. The court also noted that any warnings would not have improved that plaintiff's knowledge, which he had gained by experience. Id. at 590. Van Buskirk involved a PTO, which is a part of every piece of farm equipment that derives its power from the tractor. Thus, an experienced farmer would gain experience with PTOs when using virtually every piece of power equipment on the farm. Here, the husking box of a cornpicker is the part of the equipment involved. This type of equipment would only be used during the corn harvest, and not throughout the year. Further, plaintiff testified during deposition that he had used this cornpicker for only six to eight hours prior to the accident. Therefore, issues of material fact remain as to the extent of plaintiff's knowledge and whether the danger was sufficiently open and obvious to negate defendant's duty to warn.

 The final issue is whether the warnings on the cornpicker were sufficient to preclude liability for failure to warn. The court declines to decide that, as a matter of law, the warnings were sufficient, and leaves this question of fact for the jury.

 Defendant further moves the court to dismiss the manufacturing defect and breach of warranty claims. Plaintiff does not oppose dismissal of these claims. Thus, the court will grant the motion to dismiss the manufacturing defect and warranty claims.

 B. Plaintiffs' Preclusion Motions

 1. Videotape

 Defendant proposes to offer for admission into evidence a videotape of the cornpicker in order to improve the jury's understanding about how such equipment operates. Plaintiffs oppose admission of the videotape on the grounds that it is misleading due to close-up footage of three safety signs on the equipment which comprise approximately one-half of the length of the tape.

 Relevant, probative evidence is admissible unless the danger of unfair prejudice, confusion of issues, or misleading the jury substantially outweigh its probative value. Fed. R. Evid. 401, 402, 403. Demonstration evidence is admissible at the discretion of the court where the conditions of the demonstration are similar to those at the time in question and where it is proffered merely to show the mechanical principles involved in the operation of the equipment in question. See Louis Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d 966, 973-74 (2d Cir. 1985); Veliz v. Crown Lift Trucks, 714 F. Supp. 49, 51-53 (E.D.N.Y. 1989).

 The court finds that the videotape will help the jury to understand the mechanical operation of the cornpicker. Although the videotape does contain close-up footage of the three warning signs, it is clear upon viewing the tape in its entirety that if there is any danger of unfair prejudice, confusion of issues, and misleading of the jury, such danger would be minimal. The court rules, therefore, that the videotape of ...

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