defendants failed to warn the users of the machine in question
of the risks associated with using it. Defendants respond that
they had no duty to warn Case because he had actual knowledge of
the danger involved in using the machine.
Under New York law, a manufacturer of a product, which it
"knows or should know is dangerous if used in the usual and
expected manner," has a duty "to 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,
and, therefore, 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). The "knowledgeable user" doctrine, as it is
known, is a concept which relieves a manufacturer of liability
on a failure to warn theory where a user knows or has reason to
know of the dangerous propensities of the product independent of
the information supplied to him by the manufacturer or
distributor. See Billiar, 623 F.2d at 243; Bellinger v. Deere
& Co., 881 F. Supp. 813, 815 (N.D.N.Y. 1995); Billsborrow v.
Dow Chem., 177 A.D.2d 7, 15 n. 1, 579 N.Y.S.2d 728, 733 n. 1
(2d Dep't 1992).
Case, through his own deposition testimony, has established
himself as a knowledgeable user with respect to Troester
calender machines. Plaintiff testified that, at the time of his
accident, he had operated machines similar to the one which
caused his injuries for approximately 18 years. Transcript of
Deposition of George Case ("Case Dep."), Ex. D to Dkt. # 18, p.
4. He further acknowledged that he had been operating the
specific machine involved in his accident for approximately
three years prior to the accident. Id. at 78. Case considered
that machine to be operationally and functionally identical to
the other Troester machines that he operated in the course of
his employment at Garlock. Id. at 13. He testified that he
felt more comfortable operating the older Troester machines,
like the one involved in his accident, than the two newer
Troester machines owned by Garlock. Id. at 13-15 From
approximately 1993 until the time of this accident, Case
estimated that 90 percent of his work time involved operating
Garlock's Troester machines. Id. at 16-17
Case admits that in the late 1970's and or early 1980's he
received training in the proper and safe operation and function
of Troester calender machines that were substantially similar to
the machine involved in his accident. See Plaintiffs' Response
to Defendants' Statement of Facts, ¶ 36, Dkt. # 26. During his
training period, Case testified that he never requested any
written manuals, instructions, or other literature relating to
the proper and safe operation of these machines, but that if he
had perceived the need for such materials, he would have
requested them. Case Dep. at 27-28. Plaintiff acknowledged that
during his initial training on the machines, he was instructed
specifically to keep his hands and tools away from the
in-running nip point created by the hot and cold rollers of the
Troester machines. Id. at 28. Case stated that doing otherwise
could result in serious injury. Id. Plaintiff admitted that he
knew that, because of the training he received, his prior work
experience at Garlock, and his common sense, he had to keep away
from and stay clear of that in-running nip point. Id. at 32.
Plaintiff further candidly testified that he could think of no
additional information about the operation and function of
Troester machines, such as the machine involved in his accident,
which he would have liked to have had at the time of his
accident. Id. at 40.
In light of these admissions, there is no genuine issue of
material fact as to whether plaintiff was a knowledgeable user
of Troester's calender machines at the time of his accident.
Indeed, plaintiffs admit the truth of many of these facts in
their Statement of Uncontroverted Facts. Dkt. # 26, ¶¶ 30-43.
See also Bigness v. Powell Electronics, Inc., 209 A.D.2d 984,
985, 619 N.Y.S.2d 905, 906 (4th Dep't 1994) (affirming summary
judgment, and holding that "there is no necessity to warn a
customer already aware — through common knowledge or learning —
of a specific hazard and, in the proper case, the court can
decide as a matter of law that there is no duty to warn or that
the duty has been discharged") (internal quotation marks and
citations omitted); see also Tripolone v. Genova Products,
Inc., 95-CV-1018, 1997 WL 583120, *7 (N.D.N.Y. Sept. 3, 1997)
(finding plaintiff to be a knowledgeable user of product, which
thereby absolved manufacturer of duty to warn).
Plaintiffs' post-argument submission of their expert's
appendix to his report does not strip defendants of their
knowledgeable user defense. The submission is comprised mainly
of generic warnings and articles that have no relevance in this
proceeding, and they cannot change the facts to which Case
Defendants also contend that Case cannot establish that any
alleged failure to warn is a proximate cause of the injuries
sustained, in light of Case's experience with the machine and
his inability to recall how the accident occurred. The Southern
District's discussion of a similar issue is particularly
It is clear that any duty Ford may have had to warn
the owners of its tractors cannot be the basis of
liability here. For [third party plaintiff] has
testified, and the other parties do not dispute it,
that he knew the practice of riding passengers on the
tractor was dangerous. Warning [third party
plaintiff] would not have increased his awareness of
the danger. Ford's failure to warn him was not a
proximate cause of [plaintiffs] injury. . . . Put
another way, [third party plaintiff] falls within the
so-called "knowledgeable user" exception, which
relieves a manufacturer of his duty to warn where the
user was in fact aware of the product's dangerous
The knowledgeable user exception involves a
subjective test: whether the particular user was
aware of the danger. Since there is uncontested and
clear evidence that [third party plaintiff] knew of
the danger, summary judgment is appropriate.
Kerr v. Koemm, 557 F. Supp. 283, 286-287 (S.D.N.Y. Feb. 8,
1983) (citations omitted); see also Torrogrossa v. Towmotor
Co., 44 N.Y.2d 709, 405 N.Y.S.2d 448, 449, 376 N.E.2d 920
(1978) (failure to warn is not proximate cause where the warning
would not have prevented the accident).
For these reasons, defendants' summary judgment motion is
granted with respect to plaintiffs' claims pertaining to any
alleged failure to warn, and such claims are hereby dismissed.
IV. The Manufacturing Defect Claim
At oral argument, plaintiffs voluntarily withdrew their
manufacturing defect claim. See also Plaintiffs' Response to
Defendants' Interrogatory # 5 ("Plaintiff does not contend that
the machine was improperly and or defectively manufactured or
assembled by Troester . . ."). Any manufacturing defect claim
is, therefore, dismissed.
V. Plaintiffs' Cross-Motion to Amend and for Discovery
Plaintiffs cross-move to amend their summons and complaint to
name TMG's individual partners.*fn6 The decision
to grant or deny a motion to amend is within the sound
discretion of the district court. Krumme v. WestPoint Stevens,
Inc., 143 F.3d 71, 88 (2d Cir. 1998). As a preliminary matter,
I note that the parties themselves proposed that all amendments
to the pleadings as well as the joinder of all parties were to
be completed by November 1, 1998. (Dkt.# 7). The Court thereupon
granted the parties' request and ordered that "[a]ny application
to join any person as a party to this action shall be made on or
before November 1, 1998," and further ordered that "[a]ny
application to amend any pleading in this action shall be made
on or before November 1, 1998." Dkt. # 9. That scheduling order
also provided that "[t]he deadlines set in this scheduling order
are firm and will not be extended, even by stipulation of the
parties, absent good cause." Id. No request to extend the
dates contained within that portion of the scheduling order was
Presumably, as an explanation for their inordinate delay in
seeking this relief until this late juncture, plaintiffs suggest
that it did not become clear that PTM was a partnership rather
than a corporation until defendants filed their motion for
summary judgment. See Foley Aff., ¶ 9, Dkt. # 25; Plaintiffs'
Reply Memorandum, p. 3, Dkt. # 32. I disagree. Although it is
true that PTM identified itself as a corporation in its answer
(Dkt.# 5), there is ample evidence that this mistake was cleared
up relatively early and plaintiffs were aware well before the
filing of the instant summary judgment motion that PTM was a
partnership. For example, plaintiffs themselves identified PTM
as a "limited partnership" in their own complaint (Dkt.# 1, ¶
2). In addition, defendants referred to PTM's partners both in
their responses to plaintiffs' interrogatories in February 1999
(Response to Interrogatory 3, Dkt. # 30) and in depositions
taken by plaintiffs in the summer of 1999. It further appears
that at least one deposition exhibit listed PTM's partners.
Plaintiffs' Ex. 8, Dkt. # 24.
In any event, plaintiffs suggest that an "alternative would be
to commence a new action against the partners of TMG."
Plaintiffs' Reply Memorandum, p. 3, Dkt. # 32. At argument,
plaintiffs acknowledged that they have in fact commenced a
separate action against Karl Schmidt, as a former partner of TMG
(Case v. Schmidt, 00-CV-6476), and that they did not feel the
need to pursue any of the other former partners. Given
plaintiffs' concession at argument that their second lawsuit
essentially resolves any issues pertaining to their cross-motion
to amend or for joinder, plaintiffs' cross-motion is denied.
Plaintiffs also seek to reopen discovery to determine the
addresses of TMG's partners. For many of the same reasons
identified above, and for the additional reasons that fact
discovery closed in February 2000 (Dkt.# 13), plaintiffs'
cross-motion for this discovery is denied. Plaintiffs'
cross-motion to reopen discovery to obtain additional
information pertaining to TML is denied as moot.
To the extent plaintiffs have asserted any claims based upon a
manufacturing defect or a failure to warn, defendants' motion
for summary judgment (Dkt.# 15) is in all respects granted, and
all such claims are dismissed with prejudice. Defendants' motion
for summary judgment is also granted with respect to defendant
Troester Machinery, Ltd., and the complaint is dismissed against
that defendant with prejudice. In all other respects,
defendants' motion for summary judgment is denied.
Plaintiffs' cross-motion to amend the summons and complaint
and for additional discovery (Dkt.# 22) is in all respects
IT IS SO ORDERED.