WESP v. CARL ZEISS INC (2004)

Plaintiffs commenced this action seeking damages for personal injuries that Debra A. Wesp (plaintiff), a surgical nurse, sustained while moving a 600-pound surgical microscope and floor stand unit at the hospital where she worked.   Plaintiffs asserted causes of action in negligence, strict products liability, and breach of implied warranties of fitness and merchantability.   The causes of action for negligence and strict products liability are predicated on design defect, manufacturing defect, and failure to warn.   Defendants moved for summary judgment dismissing the complaint, and Supreme Court granted the motion in part by dismissing so much of the negligence and strict products liability causes of action as are predicated on manufacturing defect or failure to warn.

 The court erred in denying that part of defendants' motion seeking summary judgment dismissing the negligence and strict products liability causes of action insofar as they are predicated on design defect.   Defendants met their initial burden on the summary judgment motion through the affidavit of a mechanical engineer who had first-hand knowledge of the design and testing of the floor stand at issue.   He averred that the floor stand and its casters were state of the art at the time of their design and manufacture, and complied with all applicable industry standards (see generally Romano v. Stanley, 90 N.Y.2d 444, 452, 661 N.Y.S.2d 589, 684 N.E.2d 19;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Plaintiffs failed to meet their 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” (Banks v. Makita, U.S.A., 226 A.D.2d 659, 661, 641 N.Y.S.2d 875, lv. denied 89 N.Y.2d 805, 653 N.Y.S.2d 918, 676 N.E.2d 500;  see Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204).   Plaintiffs' expert, a certified safety professional, was qualified to offer an opinion that the product was not reasonably safe for employees to move because of the degree of force required to move the microscope on its portable floor stand.   We conclude, however, that, because he did not establish that he had qualifications, experience, or personal knowledge in the design, manufacture, or use of portable floor stands for mounted surgical microscopes, he was not qualified to offer an opinion whether there were safer alternative designs for the product at issue (see Geddes v. Crown Equip. Corp., 273 A.D.2d 904, 905, 709 N.Y.S.2d 770;  Merritt v. Raven Co., 271 A.D.2d 859, 862, 706 N.Y.S.2d 233;  see also Cervone v. Tuzzolo, 291 A.D.2d 426, 427, 738 N.Y.S.2d 60;  Fallon v. Clifford B. Hannay & Son, 153 A.D.2d 95, 101-102, 550 N.Y.S.2d 135).   Moreover, plaintiffs' expert based his opinion largely on safety standards, not manufacturing standards (see Merritt, 271 A.D.2d at 862, 706 N.Y.S.2d 233).   Thus, plaintiffs failed to raise a triable issue of fact on the negligence and strict products liability causes of action insofar as they are predicated on design defect (see Liz v. William Zinsser & Co., 253 A.D.2d 413, 414, 676 N.Y.S.2d 619).

 The court further erred in granting that part of defendants' motion seeking summary judgment dismissing the negligence and strict products liability causes of action insofar as they are predicated on manufacturing defect.   To establish a prima facie case of strict products liability predicated on manufacturing defect, a plaintiff must prove that the product did not perform as intended and that the product was defective when it left the manufacturer's control (see Nichols v. Agway, Inc., 280 A.D.2d 889, 720 N.Y.S.2d 691).   Assuming, arguendo, that defendants met their burden by establishing that the casters on the portable floor stand were in proper working order when it arrived at the hospital, we conclude that plaintiffs raised a triable issue of fact.   Another surgical nurse testified that the floor stand was as difficult to move on the first day it arrived as it was on the day of plaintiff's accident, but that, when a broken caster was subsequently repaired, the floor stand moved much more easily.   That testimony, if credited by the jury, is circumstantial evidence sufficient to establish that the floor stand was defective when it arrived at the hospital (see Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 41-43, 760 N.Y.S.2d 79, 790 N.E.2d 252;  see generally Codling v. Paglia, 32 N.Y.2d 330, 337, 345 N.Y.S.2d 461, 298 N.E.2d 622).

 The court properly granted that part of defendants' motion seeking summary judgment dismissing the negligence and strict products liability causes of action insofar as they are predicated on failure to warn.   Plaintiff was aware of the specific hazard that caused her injury, i.e., the difficulty in moving the mounted surgical microscope, based on her previous experience in moving it;  therefore, any warning would have been superfluous (see Schiller v. National Presto Indus., 225 A.D.2d 1053, 1054, 639 N.Y.S.2d 217;  Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75 A.D.2d 55, 65, 427 N.Y.S.2d 1009;  see also Warlikowski v. Burger King Corp., 9 A.D.3d 360, 362, 780 N.Y.S.2d 608).   The court also properly denied that part of defendants' motion seeking summary judgment dismissing the cause of action for breach of implied warranties.   Defendants met their initial burden of establishing that the product was fit and reasonably safe for the ordinary purposes for which it was to be used (see Lauber v. Sears, Roebuck & Co., 273 A.D.2d 922, 709 N.Y.S.2d 325;  see generally Denny v. Ford Motor Co., 87 N.Y.2d 248, 258-259, 639 N.Y.S.2d 250, 662 N.E.2d 730, rearg. denied 87 N.Y.2d 969, 642 N.Y.S.2d 198, 664 N.E.2d 1261).   We conclude, however, that plaintiffs' proof in opposition raised a triable issue of fact whether the product was not fit for the ordinary purposes for which it was to be used (cf. Butler v. Interlake Corp., 244 A.D.2d 913, 915, 665 N.Y.S.2d 192).

Because we have concluded that there are issues of fact concerning defendants' liability, we reject defendants' contention that the conduct of plaintiff was the sole proximate cause of her injuries;  comparative fault must be determined by the trier of fact (see generally Sheppard v. Smith Well Drilling & Water Sys., 93 A.D.2d 474, 478, 463 N.Y.S.2d 546).   Defendants' further contention, based on the speculative affidavit of a field service representative, that the sole cause of plaintiff's injuries was a significant modification of the product owing to misuse or abuse by hospital employees, is unsupported by the record.

We therefore modify the order by granting that part of defendants' motion with respect to the negligence and strict products liability causes of action insofar as they are predicated on design defect and dismissing those causes of action to that extent and denying that part of defendants' motion with respect to those causes of action insofar as they are predicated on manufacturing defect and reinstating those causes of action to that extent (see generally Cooley v. Carter-Wallace Inc., 102 A.D.2d 642, 648, 478 N.Y.S.2d 375;  Lancaster Silo & Block Co., 75 A.D.2d at 62, 427 N.Y.S.2d 1009), and we otherwise affirm.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the motion with respect to the negligence and strict products liability causes of action insofar as they are predicated on design defect and dismissing those causes of action to that extent and denying that part of the motion with respect to those causes of action insofar as they are predicated on manufacturing defect and reinstating those causes of action to that extent and as modified the order is affirmed without costs.

MEMORANDUM: