The opinion of the court was delivered by: Howard G. Munson, Sr. J.
MEMORANDUM DECISION AND ORDER
This case centers on the injuries suffered by plaintiff, Arthur Dahoda, while operating his riding John Deere Model 175 riding lawn tractor manufactured by defendants John Deere Company and Deere & Company ("Deere"). Plaintiff brings his claims against Deere for negligence, breach of warranty, and strict liability. His wife, plaintiff Mary Dahoda, asserts a claim for loss of consortium. Plaintiffs allege that the lawn tractor was defective and caused an accident resulting in serious injuries to Mr. Dahoda's hand.
Plaintiff Arthur Dahoda purchased the lawn tractor in 1991. Among the safety features included in the lawn tractor was an Operator Presence Control System ("OPC"), which would cut off power to the mower blades if the operator left the lawn tractor seat with these blades engaged. This mechanism is referred to as a deadman's switch or a seat or kill switch.
At the time he purchased the lawn tractor, plaintiff was given an Operator's Manual containing safety and operating instructions. The lawn tractor was also expressly warranted for two years after its purchase date.
During the period 1991 - 1996, plaintiff Arthur Dahoda undertook the required maintenance and repairs for the lawn tractor personally, or by bringing it to a lawn tractor repair shop. In 1993 and 1995 he replaced its lawn cutting blades and its Power Take Off ("PTO") switch.
After acquiring the lawn tractor plaintiff Arthur Dahoda used the lawn tractor to mow his own lawn as well as the lawns of eight commercial accounts he serviced. On September 3, 1996, while he was mowing the lawn of his commercial account, Dutch Touch Florist Shop, the lawn tractor overturned As a result of this mishap, plaintiff's hand was severely cut with one finger being completely severed , and a partial loss of a second finger. Plaintiff's lawn tractor was equipped with an Operator Presence Control switch ("OPC"). Plaintiff alleges that the accident took place because the lawn tractor's OPC system malfunctioned, and failed to disengage the power supply to the mowing deck/mower blades when he lost contact with the lawn tractor's operator's seat.
Following the accident, the lawn tractor was transported by plaintiffs' relative back to their home. Some differences exist in the testimony regarding whether it was ever used again. In his deposition testimony at pp. 82,83, plaintiff Arthur Dahoda, stated that the lawn tractor was used once or twice again by his brother John, however, John Dahoda testified in his deposition at p.8, that he never used plaintiffs' lawn tractor after his brother's accident.
Shortly afer the accident, plaintiffs acquired legal representation in this matter, and retained liability expert, Edward Dina, to assist them and counsel in their personal injury case against defendants. On November 29, 1996, plaintiff Arthur Dahoda transported the lawn tractor to Milton, NY in his pick up truck so it could be examined by expert Dina. Defendants were not notified that this examination was to take place. Plaintiffs counsel directed Dina to remove the OPC seat switch as well as the brackets and other parts connected to the OPC seat switch into the lawn tractor.
Dina removed the bracket and seat switch by unbolting the bracket to which the seat switch was still attached, and disconnecting the wire connector attached to the seat switch. Before the bracket and disconnected wire connector were removed, the bracket was securely bolted to the tractor, the seat switch was securely attached to the bracket, and the wire connector securely attached to the seat switch. There did not appear to be anything improper in the manner in which these components were installed and connected in the tractor that would have contributed to the intermittent functioning of the seat switch. (Dina, Aff. p. 2)
Dina first took photographs of the lawn tractor in the bed of the plaintiffs' pickup truck, which showed how the seat switch, brackets and wire connector were installed on the tractor, and made a short videotape of the tractor. (Pltfs. Statement of Material Facts p.7).
Prior to removing the parts, Dina first tested the safety system to see if it was working. In this test, he sat on the mower tractor's seat, started the motor, engaged the PTO, and sat up off the seat. The tractor kept running and the blades were still engaged. The tractor motor was then shut off. To determine if the seat switch was working properly, Dina used a continuity meter to test the seat switch's electricity flow consistency by manually operating it by pushing down on the seat with his hands. Several continuity tests showed that continuity was intermittent. This could possibly lead to a malfunction preventing the mower blades from stopping in an accident situation within the established industry standard of a five second time frame for the blades to stop rotating after power is shut off. (Dina, Aff. p.2). When plaintiffs' other experts, Jack Arfstrom and Everet Johnson, later inspected the OCP switch with their continuity meters, they each indicated intermittent operation of the electrical contacts inside the switch. The OCP switch was not installed on plaintiffs' lawn tractor when these tests were made.
Plaintiffs did not notify defendant that the accident had taken place until January 21, 1998, nearly 1-1/2 years after the accident occurred. Defendants responded to this letter in a letter dated February 9, 1998, asking that plaintiffs' counsel provide the particulars of the accident, the identity of the lawn tractor's owner, and where the machine was then located.
Plaintiff's counsel responded to defendants' in a letter dated February 18, 1998, furnishing details of the accident's occurrence, advising defendants of the theories of the case that counsel was investigating, that the seat switch was with plaintiffs' expert in Kansas for nondestructive testing, that the lawn tractor was secure at plaintiffs' residence, that they acknowledged their obligation to permit defendants to have access to the parts and ...