The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff Jose David Ramos ("Plaintiff") brings this action based in defective design, negligent design, and failure to warn*fn1 against Defendant Simon Ro ("Defendant"), a manufacturer of cranes.*fn2 Defendant has moved for summary judgment on each of Plaintiff's claims. (Dkt. No. 24.) For the reasons discussed below, Defendant's Motion is denied in part and granted in part.*fn3
Plaintiff Jose David Ramos ("Plaintiff") was employed as a "groundsman" for Michael Serio, Inc., a landscaping and tree-removal company. (Def. Simon-Ro Corporation's Statement Pursuant to Local Civil Rule 56.1 ("Def.'s 56.1 Stmt.") ¶ 1.)*fn4 In his capacity as groundsman, Plaintiff would clean up the debris created from the cutting and pruning of trees, and would place excess debris into a wood chipper. (Id. ¶ 2.)
On August 5, 2004, Plaintiff, Michael Serio ("Serio") -- the owner of the company -- and three co-workers, Servando Roldan, Jesus Roldan, and Manuel Deleg, were removing a tree from a homeowner's yard in Bronxville, N.Y. (Id. ¶ 3.) To assist in the removal of the tree, Serio utilized a hydraulic truck crane with a telescoping boom to secure large branches and portions of tree trunk as they were cut away. (Id. ¶ 4.) Serio would then lower the cut wood to the flatbed of the truck. (Id.)
The crane used by Serio was a "Stinger" Model TC-110. (Id. ¶ 5.) It featured a crane assembly mounted on the back of a Ford flatbed truck, centered just behind the cab of the truck. (Id. ¶¶ 6-7.) The crane was designed by Defendant, and manufactured and sold by Defendant in 1987. (Id. ¶ 5.) It was purchased by Serio on August 28, 1987, and shipped by Defendant on September 14, 1987. (Id. ¶¶ 28-29.) The crane itself -- which could be operated from one of two stations located behind the cab of the truck (id. ¶ 8) -- was hydraulically powered and featured a telescoping boom mounted on a turntable and pedestal (id. ¶ 6). The boom had four six-inch-wide openings, with two on each side. (Id. ¶ 9.) These openings are inspection ports, used to view and repair the hydraulic lines and valves inside the boom without dismantling the boom. (Id. ¶¶ 10, 12.) The openings become fully open, however, only when the boom is extended to a certain length such that the openings on the sides of the boom line up with the openings on the sides of the inner boom stage. (Id. ¶ 11.)
At the time of the accident in question, Serio was operating the crane, and one of Plaintiff's co-workers, Servando Roldan, was on the ground cutting a section of tree trunk. (Id. ¶ 15; Pl.'s Dep. 31.) Plaintiff was relaying information between Serio and Servando Roldan, who -- because of their relative positions -- could not see each other. (Pl.'s Dep. 32; Serio Dep. 80.) After cutting in one area, Servando Roldan decided to move his position, and told Plaintiff to instruct Serio to stop operation of the crane. (Def.'s 56.1 Stmt. ¶ 17; Pl.'s Dep. 32.) Plaintiff did what was asked of him, and Serio stopped the crane. (Pl.'s Dep. 32.) When Servando Roldan moved to the new area, Plaintiff could not longer see where Servando Roldan was cutting. (Id. 32.) Thus, in order to more effectively relay communications between Serio and Servando Roldan, Plaintiff improved his sight lines by climbing onto a three-foot high log that was sitting on the flatbed of the truck. (Id. 33.)*fn5 Standing on top of the log, Plaintiff could see both Serio and Servando Roldan. (Id. 32.)
As Plaintiff climbed on top of the log, he reached up for the boom of the crane to steady himself. (Def.'s 56.1 Stmt. ¶ 18; Pl.'s Dep. 32.) Plaintiff did not look up at the boom as he grabbed it, and his hand found one of the inspection port openings on the side of the boom. (Def.'s 56.1 Stmt. ¶¶ 18, 21; Pl.'s Dep. 42.) All of a sudden, the crane -- which had been running but had not been moving when Plaintiff grabbed hold of the boom -- moved, closing the inspection port and severing Plaintiff's fingers. (Def.'s 56.1 Stmt. ¶¶ 20; Pl.'s Dep. 32.)
Plaintiff's co-worker, Manuel Deleg, testified that Serio had frequently told "everybody" in Serio's work crew about the dangers of putting one's hand inside the inspection ports. (Def.'s 56.1 Stmt. 24; Deleg Dep. 52-53.) Deleg could not say that Plaintiff was individually warned, but repeated that Serio informed everyone of the danger, and that Plaintiff understood the danger. (Def.'s 56.1 Stmt. 24; Deleg Dep. 52-53.) Serio testified that he had warned Plaintiff about the dangers of working near the boom when the crane was in operation (Serio Dep. 27-28, 39), but that he had no specific recollection of warning Plaintiff about the inspection ports (id. 38-39). Nor did Serio recall Plaintiff ever being present while Serio used the inspection ports to view the internal mechanisms of the boom (id. 83). Plaintiff testified, however, that he knew that it was dangerous to interact with the boom when the crane was moving. (Pl.'s Dep. 59.)
The Parties are not in complete agreement regarding the angle of the crane when the accident occurred. According to Defendant, the crane was positioned at a fifty degree angle at the time of the accident, which would have placed the inspection port 109.75 inches above the ground, and more than nine feet above the flatbed of the truck. (Def.'s 56.1 Stmt. ¶ 19.) During his deposition, Plaintiff was shown a photo of the crane with the boom positioned at a fifty degree angle and was asked if that angle accorded with the position of the crane at the time of the accident. (Pl.'s Dep. 36.) Plaintiff responded that it did. (Id.) Plaintiff, however, argues that he was merely stating that the "approximate position" of the crane was as shown in the photograph, and that the boom could have been lower to the ground when the accident occurred. (Pl.'s Mem. 2 n.2; Ramos Decl. 2.) The photos themselves were taken after Serio positioned the boom at an angle that he believed approximated the angle of the boom during the accident. (Serio Dep. 42-43.) Serio also testified, however, that he believed the hole in the boom was approximately seven to eight feet above the flatbed of truck, not the nine feet that would have resulted if the boom had been at the approximate angle in the pictures. (Serio Dep. 78.)
1. Joseph Champagne, P.E.
Plaintiff submits the report of Joseph S. Champagne ("Champagne") in support of his opposition to Defendant's Motion to Dismiss. Champagne is a registered professional engineer, although his specialty is in transportation planning. (Def.'s Ex. J (Champagne Resume) at 2.)
Champagne's firm conducted an inspection and analysis of the following objects and documents: Serio's crane; a Model TC-110 Owner's Manual, dated September 1988; various photographs of the crane, most of which were taken by employees of Champagne; and a description of the accident provided by Plaintiff's counsel. (Def.'s Ex. J (Champagne Report) at 1-2 ("Champagne Rep.").) Voley Martin, an associate at Champagne's engineering firm, did the inspection of the crane and most of the analysis. (Champagne Dep. 12, 22-23.) Although Martin has considerable experience in vehicle operations, he is not a licensed engineer, and Champagne did not know if Martin had any prior experience with cranes. (Id. 23.) It was Martin, not Champagne, who reviewed the owner's manual that came with the crane. (Id. 67.) In addition, Champagne did not review the sworn testimony of Plaintiff nor the witnesses in formulating his conclusion -- which, Plaintiff acknowledged, was the regular methodology in cases of this sort. (Id. 37-38, 121-22, 126.)
Champagne did not review standards promulgated by Occupational Safety and Health Administration (OSHA), the American Society of Mechanical Engineers (ASME), or the American National Standards Institute (ANSI) relating to the construction of cranes. (Id. 25-27.) Champagne did look for OSHA and ANSI regulations dealing with pinch-points, but did not find any regulations relevant to his inquiry. (Id. 25.) Champagne never spoke to anyone in the crane manufacturing business regarding the proper construction of cranes or the guarding/labeling of pinch points and inspection ports. (Id. 99-100.)
From a review of the documents, photographs, and Martin's inspection of the crane, Champagne found two principal design defects: Defendant's failure to include guards on the inspection ports and Defendant's failure to place warning labels on the inspection ports. (Champagne Rep. 4.) Champagne further reported that the failure to install guards and/or warn of the danger of the inspection ports was the proximate cause of Plaintiff's injury. (Id. 5-6).*fn6
Champagne's findings will be discussed in turn.
First, Champagne opined that the accident would have been avoided had Defendant installed inexpensive guard covers over the inspection ports. (Id. 5.) His report, however, does not give any detail as to how inexpensive such covers would be, or how they might be applied. In his deposition, Champagne clarified that the guards could have been metal or plastic, and could have been screwed to the outside of the boom. (Champagne Dep. 60-63.) Champagne opined that the holes that Defendant would have had to drill into the boom to secure the guards would not have compromised the strength of the boom, although he admitted that he did not know the actual thickness of the boom in question. (Id. 64-65.) Champagne did not attempt to design such a guard. (Id. 62, 90.) In addition, Champagne could not identify with any specificity any other crane that used ...