DAVID J. PACY, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF KIMBERLY M. PACY, AN INFANT, PLAINTIFF-APPELLANT,
COWEN HOLDINGS, INC., ET AL., DEFENDANTS, RAYTHEON COMMERCIAL LAUNDRY LLC, INDIVIDUALLY AND DOING BUSINESS AS ALLIANCE LAUNDRY HOLDINGS LLC AND AS SUCCESSOR IN INTEREST TO RAYTHEON COMPANY, ALLIANCE LAUNDRY HOLDINGS LLC, FORMERLY KNOWN AS RAYTHEON COMMERCIAL LAUNDRY LLC, AND ALLIANCE LAUNDRY SYSTEMS LLC, DEFENDANTS-RESPONDENTS.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF
COUNSEL), FOR PLAINTIFF-APPELLANT.
CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (THOMAS J.
SPEYER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN,
from an order of the Supreme Court, Chautauqua County (Paul
Wojtaszek, J.), entered February 2, 2016. The order granted
the motion of defendants-respondents for summary judgment
dismissing plaintiff's complaint and all cross claims
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
On July 24, 2011, Kimberly M. Pacy, plaintiff's daughter,
was working at Webb's Year-Round Resort as a summer
part-time housekeeper. One of the duties of plaintiff's
daughter involved laundering linens and towels for the
resort. When attempting to take a load of towels out of the
washer, plaintiff's daughter's right arm became
entangled and twisted. As a result, plaintiff's daughter
sustained multiple injuries.
February 14, 2012, this personal injury action was commenced
against defendants Raytheon Commercial Laundry, LLC,
individually and doing business as Alliance Laundry Holdings
LLC and as successor in interest to Raytheon Company,
Alliance Laundry Holdings LLC, formerly known as Raytheon
Commercial Laundry LLC, and Alliance Laundry Systems LLC
(collectively, Alliance) as manufacturers of the washing
machine. Following discovery, Alliance moved for summary
judgment dismissing the complaint and any cross claims
against it, contending that the defects alleged by plaintiff
were not the proximate cause of the accident and that the
washing machine was not defectively designed. Supreme Court
granted the motion, and we affirm.
motion for summary judgment, a defendant manufacturer meets
its burden by establishing that its product was safe and
complied with applicable industry standards (see Ross v
Alexander Mitchell & Son, Inc., 138 A.D.3d 1425,
1426; Wesp v Carl Zeiss, Inc., 11 A.D.3d 965, 967
; see generally Romano v Stanley, 90 N.Y.2d 444,
452). Here, Alliance met its burden by establishing as a
matter of law that the washing machine was a safe product
because it was equipped with two devices, i.e., a door
interlock and microswitch. Those devices automatically
de-activate the spinning of the drum when the door is open,
and the spinning concludes within a few seconds thereafter.
Alliance also submitted proof establishing that the washing
machine complied with industrial and safety standards and
that it was reviewed and certified by several national safety
organizations (see Ross, 138 A.D.3d at 1426;
Wesp, 11 A.D.3d at 967 ; see generally
Romano, 90 N.Y.2d at 452). Plaintiff failed to meet his
burden in opposition "by establishing that the product
was not reasonably safe and that it was feasible to design
the product in a safer manner' " (Wesp, 11
A.D.3d at 967; see Voss v Black & Decker Mfg.
Co., 59 N.Y.2d 102, 108; see also Hoover v New
Holland N. Am., Inc., 23 N.Y.3d 41, 53-54; see
generally Zuckerman v City of New York, 49 N.Y.2d 557,
562). Although plaintiff's expert averred that there
should have been a braking mechanism present to
"immediately slow and stop" the drum upon the door
being opened, he failed to identify a suitable available
modification that could have been made to stop the
drum instantaneously, in contrast to the design at issue
herein, which immediately slows the drum.
Plaintiff's expert also failed to identify any
regulations or industry standards requiring such a mechanism
in a washing machine (see Rabon-Willimack v Robert
Mondavi Corp., 73 A.D.3d 1007, 1009), and he did not
indicate whether any other manufacturers were using such
modifications in their washing machines during the relevant
time period (see Reis v Volvo Cars of N. Am., 24
N.Y.3d 35, 39; see also Cwiklinski v Sears, Roebuck &
Co., Inc., 70 A.D.3d 1477, 1480).
although a manufacturer has a duty to warn against
"latent dangers resulting from foreseeable uses of its
product of which it knew or should have known"
(Liriano v Hobart Corp., 92 N.Y.2d 232, 237), it is
not required to warn against dangers that are "readily
apparent as a matter of common sense" (id. at
242). Users who are aware of an inherent danger as a result
of their experience also need not be warned of that danger
(see Lamb v Kysor Indus. Corp., 305 A.D.2d 1083,
1084; see also Liriano, 92 N.Y.2d at 241-242). Here,
Alliance established in its motion submissions that
sufficient warnings were placed on the washing machine, and
plaintiff failed to raise a triable issue of fact (see
Zuckerman, 49 N.Y.2d at 562). Moreover, the testimony of
plaintiff's daughter established that the daughter was
aware of the danger of the moving drum, inasmuch as she
usually checked to see if the drum was moving before reaching
into the washing machine. Thus, even ...