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Fasolas v. Bobcat of New York, Inc.

Supreme Court of New York, Second Department

April 12, 2017

Sofia Fasolas, etc., plaintiff-respondent-appellant,
v.
Bobcat of New York, Inc., et al., defendants, Bobcat of Long Island, Inc., et al., appellants-respondents, Port Jefferson Rental Center, Inc., doing business as Taylor Rental Center, defendant-respondent-appellant. Index No. 4638/09

         APPEALS by the defendants Bobcat of Long Island, Inc., and Bobcat Company, in an action, inter alia, to recover damages for wrongful death, etc., as limited by their brief, from (1) so much of an order of the Supreme Court (Roger N. Rosengarten, J.), entered April 8, 2013, in Queens County, as denied their motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against them, made at the close of the plaintiff's case and renewed at the close of all evidence, and pursuant to CPLR 4404(a) to set aside so much of the jury verdict on the issue of liability finding each of them 25% at fault in the happening of the accident and for judgment as a matter of law or, in the alternative, to set aside that portion of the jury verdict on the issue of liability in the interest of justice and for a new trial or, in the alternative, to set aside, as excessive, the jury verdict on the issue of damages awarding the plaintiff the principal sum of $1, 000, 000 for conscious pain and suffering, and (2) so much of a judgment of the same court entered April 22, 2013, as, upon the jury verdict on the issues of liability and damages, and upon the order, is in favor of the plaintiff and against them, CROSS APPEALS by the defendant Port Jefferson Rental Center, Inc., doing business as Taylor Rental Center, as limited by its brief, from (1) so much of the same order as denied its motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it, made at the close of the plaintiff's case and renewed at the close of all evidence, and pursuant to CPLR 4404(a) to set aside so much of the jury verdict on the issue of liability finding it 50% at fault in the happening of the accident and for judgment as a matter of law or, in the alternative, to set aside that portion of the jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial or, in the alternative, to set aside, as excessive, the jury verdict on the issue of damages awarding the plaintiff the principal sum of $1, 000, 000 for conscious pain and suffering, and (2) so much of the same judgment as, upon the jury verdict on the issues of liability and damages, and upon the order, is in favor of the plaintiff and against it, and CROSS APPEAL by the plaintiff, on the ground of inadequacy, from so much of the same judgment as failed to award pecuniary damages.

          Haworth Coleman & Gerstman, LLC, New York, NY (Nora Coleman of counsel), for appellants-respondents.

          Gary B. Pillersdorf & Associates, P.C., New York, NY (Andrew H. Pillersdorf of counsel), for plaintiff-respondent-appellant.

          Keller, O'Reilly & Watson, P.C., Woodbury, NY (Scott Watson, Jean M. Post, and Denine C. Pagano of counsel), for defendant-respondent-appellant.

          RANDALL T. ENG, P.J., REINALDO E. RIVERA, RUTH C. BALKIN, JOHN M. LEVENTHAL, JJ.

          OPINION & ORDER

          LEVENTHAL, J.

         Twenty-eight-year-old Elias Fasolas (hereinafter the decedent) was operating a Bobcat S175 skid-steer loader with a bucket attachment when a nine-foot-tall tree entered the open operator cab, crushing him against the rear and ceiling of the cab and killing him. The decedent had rented the loader from Port Jefferson Rental Center, Inc., doing business as Taylor Rental Center (hereinafter Taylor). Bobcat Company had manufactured the loader, and Bobcat of Long Island, Inc. (hereinafter together the Bobcat defendants), had sold it to Taylor. In this action commenced by the plaintiff, as administrator of the decedent's estate, against, among others, the Bobcat defendants and Taylor, the plaintiff alleged, inter alia, that the loader was defective because it did not incorporate a "special applications kit" as a standard safety feature instead of as an optional safety feature. The special applications kit restricted material from entering the cab opening and consisted of top and rear windows along with a half-inch-thick front door, made of Lexan, a polyplastic. Additionally, the plaintiff alleged that the loader was defective because it was rented without adequate warnings and training for its safe use.

         The Bobcat defendants argued that, based on Scarangella v Thomas Built Buses (93 N.Y.2d 655), they could not be held liable for failing to make the special applications kit standard. In Scarangella, the Court of Appeals set forth an exception to the principles governing the liability of a manufacturer or seller of an allegedly defective product where the buyer purchases the product without an optional safety device. The Scarangella Court held that in certain circumstances it is the buyer, not the manufacturer or seller, who is in the superior position to conduct a risk-utility assessment of the product without the optional safety device, thereby precluding a determination that the manufacturer or seller was liable for a design defect. In the case at bar, the Supreme Court denied the Bobcat defendants' request for a jury charge regarding the Scarangella exception. The jury determined that the loader was defectively designed for use in the rental market when placed in the rental market by the Bobcat defendants and Taylor, and that the defect was a substantial factor in causing the decedent's death. The jury also found that Taylor's warnings and instructions to the deceased were inadequate and that this was a substantial factor in causing his death.

         On these appeals and cross appeals, we are primarily asked to determine whether the manufacturer and seller of a product that is allegedly defective because of the absence of an optional safety device can invoke the Scarangella exception to liability where the product was sold to a buyer which, in turn, rented the product to the ultimate consumer. We hold that the Scarangella exception is not applicable where, as here, the product is sold to a rental company.

         The plaintiff commenced this action against, among others, the Bobcat defendants and Taylor to recover damages for, inter alia, negligence and wrongful death based upon a design defect. The plaintiff's primary theory of liability was that the loader was defectively designed because it did not incorporate a front door as a standard safety feature instead of an optional one. The plaintiff also alleged that the loader was defective because it was rented without adequate warnings and training for its safe use.

         At trial, the plaintiff's expert testified that every loader sold to a rental outlet to be rented to the public should have been equipped with a special applications kit because of the minimal costs of including such protection, and the known danger of objects penetrating the cab. In his opinion, placing the machine in the rental market without a front protection door was a design defect. Also, he asserted that there was no evidence to indicate that the decedent misused the loader. The plaintiff's expert additionally testified that Taylor should have trained renters in the use of the loader, and that the safety manuals and operating instructions that came with the loader did not warn against using it for knocking down trees.

         In comparison, another witness, who was the former product safety manager of the Bobcat Company, testified that the loader with a bucket attachment could be safely used without the special applications kit, which kit included the Lexan door. According to that witness, the purpose of the bucket attachment was to dig, carry, and dump loose materials, and operators were instructed to carry such loads low to the ground. In contrast, a loader equipped with certain other types of attachments, like a brush saw or a hydraulic breaker, would require the installation of the special applications kit due to the risk of objects coming into the cab when such attachments were used. That witness also testified that there were benefits to not having the special applications kit installed, including that the open front made it easier to get in and out of the cab, and improved visibility. His testimony was to the effect that the decedent misused the loader by attempting to knock down the tree that crushed him.

         At the close of the plaintiff's case, the Bobcat defendants moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against them, arguing, inter alia, that based on Scarangella, they could not be held liable for failing to make the special applications kit standard. Taylor also moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it. The Supreme Court reserved decision. Subsequently, the court denied the Bobcat defendants' request for a jury charge regarding the Scarangella exception. The court determined that the jury charge would be based on PJI 2:120, the standard charge for an action alleging strict products liability. After deliberations, the jury found that the loader was defectively designed for use in the rental market when placed in that market by the Bobcat defendants and Taylor, and that the defect was a substantial factor in causing the decedent's death. The jury further determined that Taylor rented the loader without adequate warnings and training and that this was also a substantial factor in causing the decedent's death. The jury attributed 25% of the liability to Bobcat Company, 25% to Bobcat of Long Island, Inc., and 50% to Taylor. The jury awarded the plaintiff damages in the sum of $1 million for conscious pain and suffering, but it did not award any pecuniary damages.

         In an order entered April 8, 2013, the Supreme Court denied the separate motions of the Bobcat defendants and Taylor pursuant to CPLR 4401 for judgment as a matter of law and pursuant to CPLR 4404(a) to set aside the verdict in favor of the plaintiff and against them on the issue of liability or, in the alternative, for a new trial on the issue of liability or, in the alternative, to set aside, as excessive, the verdict on the issue of damages. A judgment, ...


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