KEEM v. FORD MOTOR COMPANY (2024)

Motion for reargument or leave to appeal to the Court of Appeals, and for other relief,

Now, upon reading and filing the affirmation of Richard J. Montes, dated June 14, 2024, the exhibits annexed thereto, the notice of said motion with proof of service thereof, the affirmation in opposition of Marc C. Panepinto, dated June 25, 2024, the reply affirmation of Richard J. Montes, dated June 28, 2024, and due deliberation having been had thereon,

It is hereby ORDERED that said motion be and the same hereby is granted and, upon reargument, the memorandum and order entered May 10, 2024 (227 A.D.3d 1526, 211 N.Y.S.3d 672 [4th Dept. 2024]) is amended by deleting the third and fourth paragraphs of the memorandum and substituting the following paragraphs:

We agree with plaintiff that Ford Motor failed to meet its burden on the motion with respect to the strict products liability and negligence causes of action. It is well settled that a strict products liability cause of action may be established by circumstantial evidence, and thus a plaintiff “ ‘is not required to prove the specific defect’ ” in the product (Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 41 [760 N.Y.S.2d 79, 790 N.E.2d 252] [2003]; see Ramos v. Howard Indus., Inc., 10 N.Y.3d 218, 223 [855 N.Y.S.2d 412, 885 N.E.2d 176] [2008]; Codling v. Paglia, 32 N.Y.2d 330, 337 [345 N.Y.S.2d 461, 298 N.E.2d 622] [1973]; Saunders v. Farm Fans, div. of ffi Corp., 24 A.D.3d 1173, 1175-1176 [807 N.Y.S.2d 241] [4th Dept. 2005]). “In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product's failure that are not attributable to defendants” (Speller, 100 N.Y.2d at 41 [760 N.Y.S.2d 79, 790 N.E.2d 252]; see Ramos, 10 N.Y.3d at 223 [855 N.Y.S.2d 412, 885 N.E.2d 176]). “ ‘Proof that will establish strict liability will almost always establish negligence’ ” (Saunders, 24 A.D.3d at 1174-1175 [807 N.Y.S.2d 241]).

In order to meet its initial burden of establishing entitlement to judgment as a matter of law, Ford Motor was required to submit evidence that its product was not defective (see Ramos, 10 N.Y.3d at 221 [855 N.Y.S.2d 412, 885 N.E.2d 176]; Cassatt [v. Zimmer, Inc.], 161 A.D.3d [1549] at 1550 [75 N.Y.S.3d 764 (4 Dept. 2018)]), and that it was reasonably safe for its intended use (see Menear v. Kwik Fill, 174 A.D.3d 1354, 1355-1356 [105 N.Y.S.3d 766] [4th Dept. 2019]). Although the airbag system was not available for testing and inspection after the accident, Ford Motor submitted the affidavit and deposition testimony of its expert, who testified that the supplemental safety systems and frontal crash deployable devices of the vehicle, including the airbag system, were not defective at the time of the sale of the vehicle, and that those systems were designed and manufactured in compliance with applicable industry standards (see Ramos, 10 N.Y.3d at 223-224 [855 N.Y.S.2d 412, 885 N.E.2d 176]). Nonetheless, Ford Motor also submitted the deposition testimony of decedent, which raises an issue of fact whether the product was defective inasmuch as decedent's testimony describing the deployment of the airbag contradicts the evidence that Ford Motor's testing and quality control measures were, in fact, so robust to render it “ ‘virtually impossible for a [product] with the relevant defect to leave [its] plant’ ” (id. at 224 [855 N.Y.S.2d 412, 885 N.E.2d 176]). Because Ford Motor failed to establish its prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [487 N.Y.S.2d 316, 476 N.E.2d 642] [1985]).