RUTHERFORD v. SIGNODE CORPORATION (2004)

Plaintiffs commenced this action seeking damages for injuries sustained by Rodney Rutherford (plaintiff) while operating an air-powered combination banding tool at the tire plant where he was employed.   The tool was manufactured by defendant Signode Corporation (Signode) and allegedly sold and serviced by defendant Buff-Pac, Inc. (Buff-Pac).   Plaintiff was attempting to band together stacked cardboard boxes when, upon pressing a button on the tool, the tool flew back into plaintiff's groin, causing injuries.   Plaintiffs asserted causes of action for negligence, breach of express and implied warranties and strict products liability.   Supreme Court granted in part defendants' motions for summary judgment dismissing the amended complaint, dismissing the negligence and strict products liability causes of action insofar as they are based on an alleged manufacturing defect theory.   We agree with defendants that the court should have dismissed the amended complaint in its entirety.

 The remainder of the negligence and strict products liability causes of action against Signode are based on an alleged design defect theory.   It is well settled that a manufacturer who places a defective product on the market may be liable for injuries subsequently caused by that defect without proof of negligence (see Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 478, 426 N.Y.S.2d 717, 403 N.E.2d 440;  Codling v. Paglia, 32 N.Y.2d 330, 335, 342, 345 N.Y.S.2d 461, 298 N.E.2d 622) and may also be liable for negligence in designing a defective product (see Denny v. Ford Motor Co., 87 N.Y.2d 248, 257-258, 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;  Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 450 N.E.2d 204;  see also Opera v. Hyva, Inc., 86 A.D.2d 373, 377, 450 N.Y.S.2d 615).   Contrary to plaintiffs' contention, Signode established as a matter of law that the tool was reasonably safe for its intended use as designed and thus established its entitlement to summary judgment dismissing the remainder of the negligence and strict products liability causes of action against it (see Bombara v. Rogers Bros. Corp., 289 A.D.2d 356, 357, 734 N.Y.S.2d 617;  see also Sessa v. Port Auth. of N.Y. & N.J., 299 A.D.2d 333, 334, 749 N.Y.S.2d 157;  Schrader v. Sunnyside Corp., 297 A.D.2d 369, 371, 747 N.Y.S.2d 26, lv. dismissed in part and denied in part 100 N.Y.2d 553, 763 N.Y.S.2d 807, 795 N.E.2d 33).   Signode also established its entitlement to summary judgment dismissing the breach of express and implied warranties cause of action against it (see Wyda v. Makita Elec. Works, 232 A.D.2d 407, 408, 648 N.Y.S.2d 154;   Ruggles v. R.D. Werner Co., 203 A.D.2d 913, 611 N.Y.S.2d 84, lv. denied 84 N.Y.2d 802, 617 N.Y.S.2d 136, 641 N.E.2d 157).   In any event, we further conclude that Signode established as a matter of law that plaintiff's injuries were caused by an improper connection of the air hose and not by any defect in the tool itself and thus established that any alleged defect in the design of the tool was not a proximate cause of plaintiff's injuries (see generally Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied 52 n.y.2d 784, 436 n.y.s.2d 622, 417 N.E.2d 1010;  Olsovi v. Salon DeBarney, 118 A.D.2d 839, 840, 500 N.Y.S.2d 325).

 Buff-Pac, as the retailer of the Signode tool, is similarly not subject to strict products liability (cf. Fronckowiak v. King-Kong Mfg. Co., 289 A.D.2d 1054, 735 N.Y.S.2d 294).   In addition, we conclude that Buff-Pac established its entitlement to summary judgment dismissing the remainder of the negligence cause of action against it.   Absent a routine maintenance contract, a repairer may not be held liable for its failure to inspect a machine “for defects unrelated to the problem that it was summoned to correct” (McMurray v. P.S. El., 224 A.D.2d 668, 670, 638 N.Y.S.2d 720, lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 378, 672 N.E.2d 604).   Although repair records indicate that Buff-Pac “rebuilt” two of the banding tools sold to plaintiff's employer, we conclude that Buff-Pac met its burden of establishing that it was not negligent in its repair of the tool at issue (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718), and plaintiffs failed to raise an issue of fact whether Buff-Pac's work may have contributed to the accident (see McMurray, 224 A.D.2d at 670, 638 N.Y.S.2d 720;  see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Buff-Pac also established its entitlement to summary judgment dismissing the breach of express and implied warranties cause of action against it (see Wyda, 232 A.D.2d at 408, 648 N.Y.S.2d 154).

 We agree with defendants that the affidavit of plaintiffs' expert is insufficient to defeat defendants' motions because the expert failed to present evidence that he had any practical experience or personal knowledge in the design of banding tools (see Geddes v. Crown Equip. Corp., 273 A.D.2d 904, 905, 709 N.Y.S.2d 770;  see generally Romano v. Stanley, 90 N.Y.2d 444, 451-452, 661 N.Y.S.2d 589, 684 N.E.2d 19).   Here, “the expert's opinion was not supported by any foundational facts such as actual testing of the [tool], a deviation from industry standards, statistics showing frequency of injury resulting from the design of the [tool], or consumer complaints” (Martinez v. Roberts Consol. Indus., 299 A.D.2d 399, 399, 749 N.Y.S.2d 279).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motions are granted in their entirety and the amended complaint is dismissed.

MEMORANDUM: