RICHARDS v. Cooper Tire & Rubber Company, et al., Defendants. (2021)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about August 7, 2019, which, to the extent appealed from, denied defendant Ford Motor Company's (Ford's) summary judgment motion insofar as it sought to dismiss plaintiffs’ defective design and failure to warn claims, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment dismissing the complaint as against Ford.

This personal injury and wrongful death action arises from a single motor vehicle accident involving a van manufactured by defendant Ford. The accident happened when the van's left rear tire blew out.  Plaintiff sued defendant Ford, among others, alleging defective design, failure to warn, breach of warranty and seeking punitive damages.  Supreme Court dismissed all the claims except the defective design and duty to warn claims.

The defective design claim should have been dismissed because plaintiff failed to rebut defendant's prima facie showing that the Ford van was not negligently designed.  “Where ․ a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is usually for the jury to make the required risk-utility analysis” whether the product was reasonably safe (see Wengenroth v. Formula Equip. Leasing, Inc., 11 A.D.3d 677, 680, 784 N.Y.S.2d 123 [2d Dept. 2004]).  However, an expert cannot raise an issue of fact to defeat a motion for summary judgment when the opinion consists of only bare conclusory allegations of alleged defects or industry wide knowledge (see Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533, 569 N.Y.S.2d 337, 571 N.E.2d 645 [1991];  Hartnett v. Chanel, Inc., 97 A.D.3d 416, 419–420, 948 N.Y.S.2d 282 [1st Dept.], lv denied 19 N.Y.3d 814, 2012 WL 5200340 [2012]).  Here, plaintiffs’ expert's assertions that the vehicle at issue was unsafe and prone to rollovers was unsupported by any data or calculations concerning the testing he purportedly performed, testing he described in the most conclusory of terms and general of statements (see Doomes v. Best Tr. Corp., 17 N.Y.3d 594, 935 N.Y.S.2d 268, 958 N.E.2d 1183 [2011];  Stalker v. Goodyear Tire & Rubber Co., 60 A.D.3d 1173, 874 N.Y.S.2d 632 [3d Dept. 2009]).  While plaintiffs pointed to NHSTA reports concerning the alleged propensity of 15–passenger vans to roll over, such reports are hearsay (see Cramer v. Kuhns, 213 A.D.2d 131, 135–137, 630 N.Y.S.2d 128 [3d Dept. 1995], lv dismissed 87 N.Y.2d 860, 639 N.Y.S.2d 312, 662 N.E.2d 793 [1995]).  Admissibility aside, the tests performed in connection with those reports were computerized models of a generic passenger van, results rebutted by Ford in an on-track study showing that its van did not behave as the generic computerized model did.  Plaintiffs fail to address this or the flaws in the study of their expert.

Given plaintiffs’ failure to show evidence of a design defect or latent defect, their failure to warn claim is also subject to dismissal (see Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 760 N.Y.S.2d 79, 790 N.E.2d 252 [2003]).  Likewise, there can be no claim that Ford failed to warn of a foreseeable misuse of the product because there is no evidence that any such failure was a proximate cause of the injury (see Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 N.Y.S.2d 764, 700 N.E.2d 303 [1998]).  On the contrary, the uncontested evidence established that the vehicle owner was well aware that the tires on the van were dry rotted and was advised by several people on several occasions that the tires needed replacement.  Indeed, he was told by the service center that, due to the condition of the tires, they would not perform any work on them, and refused to rotate them.  Thus, there is no evidence that any additional warning would have been read and heeded (see Reis v. Volvo Cars of N. Am., Inc., 73 A.D.3d 420, 901 N.Y.S.2d 10 [1st Dept. 2010]).