motion, the court stated: "the record reflects that . . . at the time of purchase . . . [and] of the accident, the roller was . . . not unreasonably dangerous if used in the manner intended." Id. at 823.
Thus, a manufacturer cannot escape liability for designing an unsafe product merely by asserting that it provided the purchaser with the option of making it safe. The manufacturer must first demonstrate that the product is reasonably safe if used in the intended manner.
In this case, defendant submitted affidavits and exhibits to support its assertions that a rollbar was available and the purchaser knew of its availability. But defendant has failed to demonstrate that the MF20 tractor loader was reasonably safe as designed when used for its intended purpose.
Contrary to defendant's contention, the fact that the loader at issue in the Biss case was found to be inherently safe when operated properly does not dispose of the question in this case. The loader in Biss was produced by a different manufacturer, J.I. Case Co., Inc. The year of manufacture and model of the J.I. Case loader are unknown, there is no indication that the J.I. Case loader was being used with fork tines, and there is no indication that the J.I. Case machine was marketed for any use other than as a loader. The danger addressed in the Biss decision was the likelihood of roll over as opposed to injury from falling objects. Thus, defendant's claim that the Biss decision involved "the exact same piece of equipment" is simply untrue (Item 74, p. 11).
For these reasons, defendant has failed to meet its initial burden of demonstrating the absence of a genuine issue of material fact as to an element of a product defect claim.
On the other side of the coin, plaintiff has come forth with evidence sufficient to raise genuine issues of material fact as to whether federal, state, or industry standards required an overhead guard or rollbar as standard equipment when it manufactured the MF20 (Item 57, pp. 15-17, 21-22; Item 57-a, Exs. G, H, J, M, N, O); whether defendant provided adequate instructions and/or warnings regarding use of the MF20 with optional equipment (Item 57, pp. 23-24; Item 57-a, Exs. E, F, I); whether defendant had a rollbar available for the MF20 in 1970 (Item 57, pp. 50-51, 53-54; Item 53, Exs. E, F; Item 57-a Ex. E; Item 59); and whether defendant had a self-leveling device available for the MF32 loader in 1970 (Item 57, pp. 66-67; Item 57-a, Exs. A, F, X).
Accordingly, defendant's motion for summary judgment on the issue of liability must be denied.
B. Statute of Limitations
It is undisputed that the product that caused plaintiff's injuries was delivered to plaintiff's employer in 1970. This action was commenced in 1990.
Under New York law, a breach of warranty claim against a manufacturer accrues on the date the manufacturer tenders delivery. N.Y.U.C.C. § 2-725(2) (McKinney's 1993). Where there is no allegation that a warranty for future performance has been made, the statute of limitations for commencing an action for breach of warranty for the sale of goods is four years from the accrual date. Id. §§ 2-725(1), (2); Kern v. Frye Copysystems, Inc., 878 F. Supp. 660 (S.D.N.Y. 1995); Heller v. Suzuki Motor Corp., 64 N.Y.2d 407, 488 N.Y.S.2d 132, 477 N.E.2d 434 (1985).
Plaintiff's claim for breach of express or implied warranty expired in 1974. Accordingly, summary judgment is granted to defendant on the breach of warranty claim.
IV. Plaintiff's Cross-Motion for Summary Judgment on the issue of Liability
Plaintiff's counsel asserts that his responding affidavit filed on January 2, 1996, constitutes a cross-motion for summary judgment. However, plaintiff's papers do not comply with the rules. Plaintiff failed to file and serve a notice of motion as required by Rule 7(b) of the Federal Rules of Civil Procedure and Local Rule 7.1(c), failed to submit a statement of material facts pursuant to Local Rule 56 as to which plaintiff contends there is no genuine issue to be tried, and failed to file and serve a supporting memorandum of law with the motion papers as required by Local Rule 7.1(e).
Even more fundamentally, plaintiff has failed to make an evidentiary showing that would support summary judgment in his favor. In order to cast liability on defendant, plaintiff must demonstrate that the MF20 was unsafe as manufactured and marketed. In support of that position, plaintiff offers the opinion of J.B. Sevart, P.E. (Item 57-A, Ex. C). While Mr. Sevart makes a number of broad assertions regarding the MF20's safety and suggests certain corrective measures that defendant could have or should have taken, his statements are not supported by engineering records, a cost/benefit analysis or any other documentation relevant to the balancing test articulated in Voss, supra at 109. Without such an evidentiary showing, Mr. Sevart's letter is too conclusory to justify the relief requested.
For these reasons, plaintiff's cross-motion for summary judgment on liability must be denied.
V. Defendant's Motion to Preclude
Defendant moves to preclude use of documents which plaintiff has produced in response to defendant's summary judgment motion, claiming that plaintiff withheld these documents from prior discovery responses. The documents at issue are contained in Item 57-a, Exs D, E (pp. 1-3 only), K, P, R, S (three documents), and Y.
Plaintiff's attorney responds that all exhibits, with the exception of E, were received by plaintiff sometime in December 1995, after prior discovery responses were made. The exhibits were filed and served on December 29, 1995, and a notice to admit was mailed to defendant's attorney on January 10, 1996. Plaintiff's attorney also states that the disputed material in Exhibit E (a transcript from another Massey-Ferguson trial) was brought to the attention of defendant's attorney on three separate occasions in March and May of 1995.
Defendant's motion to preclude and for sanctions is denied. After receiving the exhibits in December 1995, defendant waited more than nine months before filing its motion to preclude. Most of the disputed exhibits, with the exception of E and K, appear to be materials written or produced by defendant. Furthermore, the appropriate remedy here is to allow defendant to inquire into the source and completeness of the documents, not to preclude their use altogether.
For the reasons set forth herein, defendant's motion for summary judgment (Item 51) is DENIED on the issue of liability for product defect, and GRANTED on the issue of breach of warranty; plaintiff's cross-motion for summary judgment (Item 57) is DENIED; and defendant's motion for order of preclusion (Item 73) is DENIED. If defendant determines that it needs additional time for discovery with respect to the exhibits for which preclusion was sought, counsel must make application to the court.
DATED: Buffalo, New York
October 10, 1996
Carol E. Heckman
United States Magistrate Judge