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Passante v. Agway Consumer Products

May 5, 2009


The opinion of the court was delivered by: Pigott, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Samuel Passante, an employee of Agway Consumer Products, Inc., doing business as G & P Fresh Pac, was injured while using a mechanical dock leveler at the company's warehouse in DeWitt. The dock leveler was manufactured by Rite-Hite Corporation and sold to G & P by Mullen Industrial Handling Corp. The dock leveler at issue here is a mechanical platform designed to provide a ramp between a loading dock and the bed of a truck or tractor trailer. When not in use, the dock leveler is flat and part of the loading dock floor. It rises to match the height of the load bed, so as to enable forklifts or pallet trucks to move in and out of the trailer.

Once activated, the platform of the leveler swings up, and a hinged lip at its edge also moves up from a pendent position perpendicular to the platform to a position in which it forms an extension of the platform in order to meet the trailer bed. The operator then walks towards the edge of the leveler platform and, if his weight is sufficient, forces the platform down toward the trailer bed so that the lip catches the trailer floor. This is known as "walking down" the leveler. Once the hinged lip has engaged the bed of the trailer, it provides a transition between the loading dock floor and the trailer bed. However, the lip is designed to rotate back into its pendent position if it is not supported, and the parties do not dispute that a person standing on an unsupported lip will fall. A Rite-Hite instruction sheet was posted on a wall in the loading dock area, which, among other things, warned operators not to walk on the lip of a dock leveler when "walking down" the leveler.

According to Rite-Hite's design engineer, the leveler here was designed for a "150 pound walkdown," meaning that a person who weighs about 150 pounds would be able to bring the leveler platform down to the requisite height by simply walking to the edge of the platform. Passante, who weighed 140 pounds, testified that he was not heavy enough to force the leveler platform down to the trailer bed without standing on the hinged lip. Moreover, Joseph Panebianco, the G & P assistant facility manager and a heavier man, testified that he too was unable to "walk down" the leveler successfully without standing on the lip.

Mullen had offered to sell G & P a system manufactured by Rite-Hite, called "Dok-Lok", that secures a tractor trailer to the loading dock and includes a warning system so that workers know when they can safely enter the trailer and drivers know when they can safely pull away. G & P declined to buy a Dok-Lok system, instead relying on wheel chocks wedges placed beneath or behind a truck's wheels to prevent movement. Panebianco testified that he decided against Dok-Lok partly because it would require having an operator and also because a driver who "doesn't use his head and drives off" while a Dok-Lok is engaged would in his opinion tear the bumper from his trailer.

Passante's accident occurred when he was "walking down" the dock leveler in order to get the platform to rest on a trailer. He was standing on the hinged lip of the leveler as it made contact with the trailer bed. Unbeknownst to Passante, the driver of the tractor-trailer had not completed the process of parking, and no chocks were in place. Passante remained standing on the hinged lip for a "split second" after completing the "walk down." At that moment, the driver began to move the tractor-trailer forward and, without the support of the trailer bed, the lip fell to its pendent position, causing Passante to fall onto a cement and steel grate, sustaining injury.

Passante and his wife commenced this action, against G & P, Rite-Hite and Mullen, alleging, among other things, that the dock leveler Mullen sold to G & P was defectively designed by Rite-Hite because it lacked equipment restraining the tractor trailer or securing it to the loading dock while the dock leveler was in use, and lacked a system to warn the operator when it was safe to enter the trailer or, in the alternative, notifying the driver that a dock leveler was in position. The Passantes also allege that Mullen negligently failed to warn G & P of the danger that movement of a tractor-trailer during the operation of a dock leveler would cause the it to collapse. The complaint also alleged manufacturing defects, negligent installation and maintenance, and breach of warranty. Rite-Hite cross-claimed against Mullen.

Following discovery, Mullen moved for summary judgment, attaching deposition transcripts and various other documents, including a Rite-Hite sales brochure describing its Dok-Lok trailer restraint systems. The brochure vividly described the dangers faced by the operators of dock levelers when tractor trailers are unsecured. Rite-Hite described the space between loading dock and trailer bed the space bridged by its dock levelers as a warehouse's "Danger Zone."

"Every time a lift truck impacts the ramp, crosses [the Danger] Zone, and enters a trailer, the trailer can inch forward. When it moves too far, or departs prematurely, the lift truck and driver can tumble into the gap with disastrous results. . . . The impact of a lift truck moving in and out of the trailer during loading operations causes the trailer to inch forward slightly even with the brakes set and the wheels chocked. When the trailer moves beyond the reach of the leveler's lip, the lip falls, leaving a large gap. The lift truck and operator may then topple off the leveler or trailer and onto the driveway. . . . [In another common scenario] the truck driver, assuming loading operations are completed, pulls away without warning. This unexpected departure from the dock can cause the forklift and operator to be thrown onto the driveway."

The brochure noted that wheel chocks were ineffective and expensive, and recommended one of its Dok-Lok systems to ensure the safety of dock leveler operators.

In opposition to Mullen's motion, plaintiffs submitted the affidavits of a mechanical engineer and an industrial engineer. The mechanical engineer, noting the testimony from Passante and Panebianco to the effect that they could not get the dock leveler to operate without standing on its lip, had inspected the dock leveler involved in the accident. Even with a body weight of 180 pounds, the mechanical engineer was unable to urge the dock leveler to a horizontal position. The engineer concluded that, at 140 pounds, Passante would not be able to impel the dock leveler down simply by "walking down" to the edge of its platform. "As a result," he observed, "it was necessary for Samuel Passante, as well as for Joseph Panebianco, to position themselves on the extended lip in order for the equipment to achieve its operational goals." The mechanical engineer, noting that "the unscheduled departure of a tractor trailer is a known risk in the materials handling industry," concluded that "with a reasonable degree of engineering certainty, the equipment created an unreasonable risk of harm to the operator both from falls from the collapsing lip, as well as from falls caused by the unscheduled departures of tractor trailers."

The industrial engineer's opinion was that the "warnings positioned on the wall, remote from the pull-chain which initiates the operation of the mechanical dock leveler in question, would not effectively remind the operator of the dangers associated with walking on the extended lip of the equipment. . . . To properly warn the operator, . . . a warning medallion connected to the links of the pull-chain directly at the point of operation was necessary. . . . Additionally, . . . some type of safety striping or demarcation of the lip itself was necessary to fully advise the operator as to the specific dangers involved in the steps he was taking during the operation of the equipment, to wit approaching the end of the platform and stepping onto the hinged lip itself."

The industrial engineer also noted that neither Rite-Hite nor Mullen had provided G & P with instructions for adjusting the dock leveler for operators of different body weights or with a warning that "operation outside of the parameters of 150 pound nominal walk down weight [i.e. the inability of someone weighing approximately 150 pounds to "walk down" the dock leveler without standing on the lip] indicates that the equipment is not operating properly." The industrial engineer concluded "with a reasonable degree of engineering certainty, this lack of properly placed warnings combined with the complete lack of warnings or instructions to the proper operating capacity of the equipment, creates an unreasonable risk of harm to the operator."

Supreme Court denied Mullen's motion, finding questions of fact concerning defective design and failure to warn. The Appellate Division reversed, dismissing the Passantes' complaint as against Mullen in its entirety (294 AD2d 831). Two dissenting Justices would have held that the defective design and failure to warn claims survived summary judgment.

After the Appellate Division's decision, Mullen moved for summary judgment dismissing Rite-Hite's cross-claims and Rite-Hite sought summary judgment dismissing plaintiffs' complaint*fn1. Supreme Court dismissed Rite-Hite's cross-claims without prejudice on condition that Rite-Hite "may assert its cross-claims in the event of a reversal or modification in plaintiff's favor" of the Appellate Division's order by this Court. Supreme Court also required plaintiffs to consent to judgment dismissing their action should this Court affirm the Appellate Division's order. Plaintiffs appealed, pursuant to CPLR 5601 (d), bringing up for review the Appellate Division's order. We now modify the judgment appealed from and the Appellate Division's order, and reinstate the causes of action for defective design and failure to warn.

Mullen and Rite-Hite rely on our decision in Scarangella v Thomas Built Buses, Inc. (93 NY2d 655 [1999]). There, as here, plaintiff argued that a product was defectively designed insofar as it did not incorporate, as standard equipment, a particular safety feature. In Scarangella, plaintiff, who was employed as a school bus driver, was injured when a school bus struck her, while being operated in reverse in a bus parking yard. The distributor that sold the bus to the defendant school bus company had offered, as an optional safety feature, an alarm that would automatically sound when a driver shifted the bus into reverse gear. The bus company ...

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