The opinion of the court was delivered by: Trager, J.
Plaintiff Arben Mustafa ("Mustafa") brings this diversity action alleging products liability claims against defendant Halkin Tool, Ltd. ("Halkin") for personal injuries he suffered in a workplace accident while operating a press brake manufactured by Halkin*fn1 on June 3, 1998.
Mustafa commenced this action against Halkin on June 28, 2000, asserting negligence, strict products liability and breach of warranty.*fn2 Halkin impleaded Mustafa's employer, Eliou Steel Fabrication, Inc. ("Eliou"), as a third-party defendant, seeking contribution and indemnity pursuant to Rule 14 of the Federal Rules of Civil Procedure. Halkin moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on February 27, 2006. The following facts are undisputed, unless otherwise noted.
Arben Mustafa Mustafa was born in Tirana, Albania on June 29, 1956. March 7, 2002 Deposition of Arben B. Mustafa ("First Mustafa Dep.") at 7:10-16. In 1972, Mustafa began a fourteen-year period of employment as a machinist in a metal forming factory in Albania. Defendant's Rule 56.
1. Statement of Material Facts
("Def.'s 56.1 Stmt") ¶ 1. At the factory in Albania, he operated various metal working machinery, including lathes, milling machines and drilling machines. Def.'s 56.1 Stmt ¶ 2. In 1986, Mustafa was promoted to manager of the factory, and worked in that capacity until 1993. Affidavit of Isaac Szpilzinger in Support of Motion ("Szpilzinger Aff.") ¶ 11.
In 1996, Mustafa immigrated to the United States from Albania at the age of 40. First Mustafa Dep. at 9:9-11. After coming to the United States, Mustafa worked as a machinist in a machine shop repairing broken machine parts, as a lathe operator and as a machine mechanic for envelope machinery. Szpilzinger Aff. ¶ 15.
In late May of 1998, Mustafa interviewed for a position at Eliou. Szpilzinger ¶ 30. Mustafa did not understand English at that time, and the interview was conducted through a translator. Id. Mustafa was hired as a laborer to assist in the cutting and bending of metal sheets. First Mustafa Dep. at 86:1-25. He commenced his employment with Eliou on June 1, 1998. Id. On the morning of June 3, 1998, Mustafa was severely injured while operating a press brake at Eliou.
The Accurpress 725012 Press Brake Mustafa was injured while operating the Accurpress 725012 press brake ("press brake"), a hydraulically-powered press brake used to bend sheets of metal up to one-fourth of an inch thick. Schonfeld Aff. ¶ ¶ 45-46; Szpilzinger Aff. ¶ 21.
To bend a piece of metal, the operator positions the metal in the press brake and then activates the ram. A sharp metal component referred to as a "punch" is mounted to the ram and descends vertically on top of a second metal component, called a "die," which is mounted in the press brake's bed. Schonfeld Aff. ¶ 47. The metal is bent when the upper die forces the metal against the lower die. The area in the machine where the metal is bent is called the "point of operation." Id. After the metal is bent, the ram immediately raises itself back up. Id. ¶ 39.
The controls for operating the press brake's ram are located on a "Remote Operator's Control Station" ("control station"). Szpilzinger Aff. ¶ 21, Ex. C; Schonfeld Aff., Ex. K. The control station is separate from the press brake itself; it is moveable and is connected to the press brake by an electrical cord. Szpilzinger Aff. ¶ 22. The controls located on the control station are 1) a "start" button; 2) a "stop" button; 3) a hand/foot selector switch, operable by key only; 4) two dual "palm buttons," located one on each side of the control panel; and 5) a foot switch, located in the bottom center. Szpilzinger Aff. ¶ 21, Ex. C; Schonfeld Aff., Ex. K.
The ram's descent can be activated by either hand control buttons (also called "dual palm buttons") or by a foot pedal. Schonfeld Aff. ¶ 48; Szpilzinger Aff. ¶ 22. The control can be changed from "hand mode" to "foot mode" by placing a key in the hand/foot selector switch and turning the key to the desired mode. Report of Plaintiff's Expert Neal A. Growney ("Growney Report") ¶ 7.22.
If the hand/foot selector switch is in "hand mode," in order for the ram to descend, the operator must push both buttons on the control station simultaneously. Schonfeld Aff. ¶ 49; Szpilzinger Aff. ¶ 22. The two-hand actuation, as well as the placement of these buttons on the control station, ensures that the operator's hands cannot reach the point of operation before the ram descends. Growney Report ¶ 7.15.
If the hand/foot selector switch is in the "foot mode," in order for the ram to descend, the operator must press the pedal with his or her foot. Schonfeld Aff. ¶ 50; Szpilzinger Aff. ¶ 22. Foot mode does not require the use of the operator's hands to activate the ram; it allows the operator's hands to be near the point of operation while his or her foot activates the ram. Schonfeld Aff. ¶ 50; Szpilzinger Aff. ¶ 22; Growney Report ¶ 7.6.
The foot control is equipped with two "anti-trip" provisions: 1) an entry gate; and 2) a pedal toe-lock/release mechanism. Eaton Report at 3. The entry gate blocks unintended access to the foot switch pedal by requiring the gate to be raised before the foot can enter and access the pedal. Id. at 3. The toe-lock/release mechanism requires "forward foot insertion to the frontal aspect of the pedal to release the anti-trip mechanism in order to allow downward pedal travel in response to foot actuation." Id.
When the equipment was inspected on July 8, 1998 and on December 7, 2001, the entry gate was functional but the toelock/release mechanism was inoperative. Id. at 3-4. Defendant's expert, William B. Eaton ("Eaton"), testified that the operating condition of the foot switch observed on July 8, 1998 may have been the functional state of that device on the date of the accident. Id. at 4.
Eliou and the Purchase and Operation of the Accurpress 725012 Press Brake
Founded in 1970 by Peter Eliou, Eliou is a steel fabrication shop that produces metal stairways, gates, doors and other structural steel forms and installs these fabricated items in the field. Eaton Report at 5; Szpilzinger Aff. ¶ 16. From 1971 or 1972 until 1990, Eliou owned and operated another press brake for stair fabrication operations. Eaton Report at 5; Szpilzinger Aff. ¶ 16. That press brake was operable by foot pedal only, Eaton Report at 5, and did not have guards at the point of operation, Deposition of Anthony Eliou ("A. Eliou Dep.") at 27:20-22. It was primarily used to bend quarter inch-thick steel for stairs. Def.'s 56.1 Stmt ¶ 11. Peter Eliou's brother, Anthony, was the only person who used the press brake. A. Eliou Dep. at 29:23-30:4; Def.'s Mem. in Supp. at 3.
In or about 1989, Peter Eliou and his brother-in-law, Andrew Scopelitis decided to replace the old press brake with an up-to-date press brake that could bend metal for stairs as well as bend metal for "concrete forms." Deposition of Peter Eliou ("P. Eliou Dep.") at 86:20-87:10, 92:17-19; Deposition of Andrew Scopelitis ("Scopelitis Dep.") at 85:20-89:15; Szpilzinger Aff. ¶ 19.
In 1989, Peter Eliou met with a machinery salesman regarding Eliou's decision to purchase a new press brake. Def.'s 56.1 Stmt ¶ 13. The salesman had catalogs and showed Peter Eliou different machines, including a photograph of the Accurpress 725012. The salesman also showed Peter Eliou a document entitled "Optional," which listed fourteen options available for purchase with the machines. Def.'s 56.1 Stmt ¶ ¶ 15-16. The options listed were:
1) power operated backgauge; 2) manually front operated backgauge; 3) support arms for front gauging; 4) angle plates; 5) second footswitch*fn3 ; 6) power eccentric for ram level; 7) hard ram inserts; 8) palm buttons mounted on ram; 9) increased throat depth; 10) adjustable bending speed; 11) tonnage control; 12) t-slots in bed; 13) machine groove in bed; and 14) safety light curtain.*fn4 Szpilzinger Aff., Ex. C. The salesman went through the items listed in the "Optional" document with respect to the Accurpress 725012 and "told Peter Eliou what each option was." Def.'s 56.1 Stmt ¶ 16.
Peter Eliou decided to buy the Accurpress 725012, serial number 1710, with the following options: 1) power operated backgauge; 6) power eccentric; 11) tonnage control; and high speed hydraulic package. Def.'s 56.1 Stmt ¶ ¶ 18-19; Szpilzinger Aff. ¶ 20, Ex. B. Notably, Eliou elected not to purchase the press brake with the safety light curtain. Szpilzinger Aff., Ex.
B. The press brake was ordered in September 1990 through Walsh Atkinson Co., a machinery dealer in Hicksville, New York. Szpilzinger Aff. ¶ 6
After the new press brake was delivered, Anthony Eliou operated it exclusively for seven years. A. Eliou Dep. at 29:23-30:4; Szpilzinger Aff. ¶ 25. Anthony Eliou testified that he never requested that a guard be put on the press brake because it would interfere with the operator's vision. A. Eliou Dep. at 51:22-52:9.
The Warning Signs on the Accurpress 725012 Press Brake There are three warning signs affixed to the press brake's ram, one written and two pictorial. Growney Report ¶ ¶ 6.3-6.4, photos D-15, E-19. The written warning sign reads, "WARNING": "NEVER PLACE ANY PART OF YOUR BODY WITHIN DIE AREA. NEVER OPERATE THIS MACHINE WITHOUT ADEQUATE SAFEGUARDING. NEVER OPERATE, INSTALL DIES, OR MAINTAIN THIS MACHINE WITHOUT PROPER INSTRUCTION & WITHOUT FIRST READING & UNDERSTANDING THE OPERATORS OR MACHINE MANUAL."*fn5 Growney Report ¶ 6.3, D-15; Eaton Report at 3.
Also affixed to the press brake are also two yellow and black triangular pictorial signs depicting a hand with detached fingers, containing the words, "!WARNING! DO NOT EXTEND FINGERS OR HANDS BEYOND GUARD OR BARRIER." Growney Report ¶ 6.4, photo D-16.
Following the accident, Eliou placed a "danger" sign, which hung from a metal chain was strung across the rear of the press brake. Growney Report ¶ ¶ 6.10, 7.50.
Description of the Accident On June 1 or June 2, 1998, Mustafa reported to work. Fredrick Bezler ("Bezler") was in charge of teaching Mustafa how to use the press brake. Communications between Bezler and Mustafa were non-verbal, Bezler Dep. at 72:11-15; First Mustafa Dep. at 92:7, because Mustafa was not conversant in English and Bezler could not speak Albanian. First Mustafa Dep. at 92:18-25; April 1, 2002 Deposition of Mustafa ("Second Mustafa Dep.") at 202:18-23; Bezler Dep at 30:23-31:22; Eaton Report at 4.
Bezler showed Mustafa how to bend pieces by bending pieces himself. First Mustafa Dep. at 91:17-92:25. Bezler operated the press brake by using the foot pedal, Def.'s 56.1 Stmt ¶ 38, and taught Mustafa how to operate it by using the foot pedal, Def.'s 56.1 Stmt ¶ 39.*fn6 Bezler's demonstration included placing his hands on the metal piece as it was being bent.*fn7 Bezler Dep. at 68:2-14, 71:2-8, 72:6-15.
Each step started out flat and was bent three or four times. Def.'s 56.1 Stmt ¶ 48. Mustafa bent 35 to 40 steps on the press brake. Def.'s 56.1 Stmt ¶ 47. After each bend was done, Mustafa would take his foot off of the pedal and out of ...