Richard E. Lerner, for appellant.
Laura E. Gentile, for respondent.
Product Liability Advisory Council, Inc., amicus curiae.
Plaintiff sues for injuries sustained when he fell from a personnel lift designed, manufactured and sold by defendant, Genie Industries, Inc. The jury found that the product was defectively designed, and we hold that the evidence was sufficient to support that finding. We agree with Genie that the trial court erred in submitting to the jury, as an alternative ground for liability, the question of whether Genie was negligent in failing to retrofit or recall the product after its sale, but we hold that under the circumstances of this case that error was harmless.
The personnel lift at issue consists, essentially, of a basket in which one person can stand, mounted on a narrow, wheeled base. The basket is attached to a vertical cylinder, and wired so that the person in the basket can cause it to go up and down by pressing buttons. Genie sold the lift to plaintiff's employer in 1986. On July 29, 1997, plaintiff, a maintenance man, was using it to install a block and tackle in an elevated spot. When he was about twelve feet off the ground, the lift tipped over and plaintiff fell to the floor.
There was evidence from which the jury could find that the use of outriggers would have prevented the accident. Outriggers are essentially legs that extend diagonally from the base of the personnel lift to the floor, thus spreading the weight of the lift and making it more stable. Genie sold the lift with outriggers, but the outriggers were detachable, so that the lift, when not in use, could be moved through narrow openings like doorways. A label attached to the lift warns: "All outriggers must be installed before using." But it seems that plaintiff's employer ignored the warning, and that the outriggers were lost - at least, none were to be found on the day of plaintiff's accident.
Plaintiff's principal theory, and the only one we need to consider, is that the design of the lift was defective because the outriggers were not "interlocked." An interlock is a means of interrupting automatically the operation of a machine; it is familiar, for example, to users of washing machines and elevators that cannot run when their doors are open. Plaintiff claims that Genie's personnel lift should have been designed similarly, so that it could not be operated unless the outriggers were in place.
The trial court submitted a number of questions to the jury, among them whether the product was defective; whether Genie was negligent in putting it on the market in 1986; and whether Genie was negligent "from June 1986 until plaintiff's accident in July 1997." The jury answered all three of these questions yes, found in plaintiff's favor on other liability-related issues, and awarded damages including $100, 000 for past pain and suffering and $400, 000 for future pain and suffering. The trial court denied defendant's motion to set the verdict aside, but granted plaintiff's motion for additur, ordering a new trial on the issue of past and future pain and suffering damages unless Genie agreed to increase those awards to $500, 000 and $750, 000 respectively. The Appellate Division affirmed. Following the affirmance, Genie stipulated to the additur, and the Appellate Division granted Genie leave to appeal to this Court.
Before turning to the merits, we must decide whether Genie has a right to appeal from the Appellate Division's order. Plaintiff argues that it does not, asserting that, because Genie agreed to the additur, it is not an "aggrieved party" within the meaning of CPLR 5511 ("An aggrieved party or a person substituted for him may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party"). We reject plaintiff's argument.
It has long been and remains the rule that parties who stipulate to a modification of damages as an alternative to a new trial are not aggrieved by that modification and may not appeal from it (Dudley v Perkins, 235 NY 448, 457 ). Here, however, Genie is not seeking to appeal from the modification - the additur - to which it consented. It raises no issue as to the additur in this Court, but claims that it has no liability to plaintiff at all - that the case should never have been submitted to the jury - or, in the alternative, that it is entitled to a new liability trial. The Appellate Division rejected these arguments, which Genie has never agreed to abandon, and it therefore seems logical to conclude that Genie is aggrieved by the Appellate Division's order.
Plaintiff's contrary argument, however, finds support in several of our decisions, which apply the Dudley v Perkins rule more broadly than it is stated in Dudley. In Batavia Turf Farms v County of Genesee (91 N.Y.2d 906 ), we dismissed an appeal in a brief entry, saying: "[A] party who, as a result of a conditional order, has stipulated at the trial or appellate court to a reduction in damages in lieu of a new trial on a cause of action, foregoes all further review of other issues raised by that order, including those pertaining to any other cause of action, and is therefore not a party aggrieved." In Batavia, we cited a footnote in Whitfield v City of New York (90 N.Y.2d 777, 780 n * ), which states the rule similarly and cites in turn several earlier cases. Those earlier cases (Plotkin v New York City Health & Hosps. Corp., 88 N.Y.2d 917 ; Sharrow v Dick Corp., 84 N.Y.2d ...