434 N.Y.S.2d at 169. "Because . . . what is foreseeable and what is normal is subject to various inferences, [proximate cause] is generally a question for the fact finder to resolve." Brucculeri v. Nat'l R.R. Passenger Corp., 1996 U.S. Dist. LEXIS 8244, 1996 WL 328748 at *2 (S.D.N.Y. 1996).
Here, while plaintiff's conduct in checking the belt before the belt and pulley mechanism had completely stopped may have been negligent in and of itself, it cannot be said, as a matter of law, that such conduct was neither normal nor foreseeable. While defendants argue that there was no requirement or recommendation that the belt tension be checked after the machine had been used (Def. Mem. At 3), they fail to offer evidence of a requirement or recommendation that the belt tension be checked prior to using the machine. Given the lack of adequate instructions as to when the belt should be checked, it would not be unreasonable for a jury to conclude that plaintiff's conduct was both normal and foreseeable.
As to the third and fourth claims of defective design, that the manufacturer could have installed some type of indicator or visual warning on the chipper so that the operator would know the belts and pulleys were still moving, it is unclear to what extent such visual warnings were already present on the chipper. However, the Court need not reach the merits of these claims as plaintiff's first two theories are supported by sufficient evidence to withstand defendant's motion.
C. Failure to Warn
A plaintiff may recover in strict product liability for the manufacturer's failure to warn of the risks and dangers associated with the use of its product. Urena, 114 F.3d at 365, 1997 WL 271263 at *5 (citing Polimeni v. Minolta Corp., 227 A.D.2d 64, 653 N.Y.S.2d 429, 430 (3d Dep't 1997); Bukowski v. Coopervision Inc., 185 A.D.2d 31, 592 N.Y.S.2d 807 (3d Dep't 1993)). That duty includes warning the consumer of the dangers resulting from the foreseeable use of the product. Urena, 114 F.3d at 365, 1997 WL 271263 at *9 (citing Bukowski, 592 N.Y.S.2d at 808). The precise chain of events leading up to the accident need not be foreseen. Rather, "foreseeability includes the probability of the occurrence of a general type of risk involving the loss, rather than the probability of the occurrence of the precise chain of events preceding the loss . . . ." Parsons, 929 F.2d at 905 (quoting Tucci v. Bossert, 53 A.D.2d 291, 385 N.Y.S.2d 328, 331 (2d Dep't 1976)) (citations omitted). "The adequacy of the instruction or warning is generally a question of fact to be determined at trial, and is not ordinarily susceptible to the drastic remedy of summary judgment." Beyrle v. Finneron, 199 A.D.2d 1022, 606 N.Y.S.2d 465, 466 (4th Dep't 1993); see also Harrigan v. Super Products Corp., Dow & Co., Inc., 237 A.D.2d 882, 654 N.Y.S.2d 503, 504 (4th Dep't 1997).
Plaintiff also makes out a prima facie case of failure to warn. While plaintiff concedes that "the Operator's Manual does advise the operator 'never [to] attempt any maintenance while the diesel engine is running.'" (Kyanka Aff. P 6), plaintiff's expert goes on to state that there is no warning in the Operator's Manual or on the chipper itself as to how long the operator should wait after the engine has been turned off before inspecting the belts. (Kyanka Aff. P 6).
Defendants argue that "numerous recent New York decision have held unequivocally that "there is no duty to warn of a danger which is obvious and which the injured party either did or should have appreciated the danger to the same extent as a warning would provide." (Def. Reply Mem. at 6-7 (citing DePasquale v. Morbark, 221 A.D.2d 409, 633 N.Y.S.2d 543 (2d Dept. 1995)). Defendants assert that since plaintiff already testified that he was aware that it was dangerous to place his hand on the belt while it was still moving, and that he had avoided doing so when checking the belt tension on several previous occasions, defendants "had no duty to warn of any dangerous condition of which the plaintiff was aware." (Def. Reply Mem. at 7).
It is hornbook law that a manufacturer has no duty to warn consumers of obvious dangers of which they are already aware. Smith v. Stark, 67 N.Y.2d 693, 499 N.Y.S.2d 922, 490 N.E.2d 841 (1986); Oza v. Sinatra, 176 A.D.2d 926, 575 N.Y.S.2d 540 (2d Dept. 1991). However, it is not clear that the danger was obvious to plaintiff. The defendants do not provide, and the Court is unable to locate, the point in plaintiff's deposition where he admits that he was aware it was dangerous to place his hand on the belt while it was still moving. The closest thing to such an admission is as follows:
Q. "Did he (Mr. Still) ever advise you that this is a dangerous piece of equipment?