MARTINEZ v. ROBERTS CONSOLIDATED INDUSTRIES INC (2002)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Milano, J.), dated January 31, 2001, which granted the motion of the defendant Roberts Consolidated Industries, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff instituted this action to recover damages for injuries he sustained after his hand was cut while utilizing a carpet-cutting knife manufactured by the defendant Roberts Consolidated Industries, Inc. (hereinafter Roberts).   The plaintiff, an experienced carpet installer, claimed that Roberts's knife was defectively designed because it lacked a thumb rest and did not have adequate slip-resistant features on its handle.   The plaintiff further claimed that these alleged design defects caused him to lose control of the knife, resulting in his injuries.

Contrary to the plaintiff's contention, Roberts established its entitlement to summary judgment by demonstrating that the knife, as designed, was reasonably safe (see Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204).   The burden then shifted to the plaintiff to establish the existence of a triable issue of fact (see Fallon v. Hannay & Son, 153 A.D.2d 95, 550 N.Y.S.2d 135).

The only evidence proffered by the plaintiff to raise a triable issue of fact as to a design defect was the affidavit of his expert, a licensed professional engineer.   However, the expert failed to present evidence of any practical experience or personal knowledge in the design of carpet-cutting knives or hand tools.   Moreover, the expert's opinion was not supported by any foundational facts such as actual testing of the knife, a deviation from industry standards, statistics showing frequency of injury resulting from the design of the knife, or consumer complaints.   As such, the expert affidavit was insufficient to raise a triable issue of fact that the knife was not reasonably safe in its design (see Cervone v. Tuzzolo, 291 A.D.2d 426, 738 N.Y.S.2d 60;  Ramirez v. Sears, Roebuck & Co., 286 A.D.2d 428, 729 N.Y.S.2d 503;  Goldberg v. Union Hardware Co., 162 A.D.2d 658, 557 N.Y.S.2d 104;  Merritt v. Raven Co., 271 A.D.2d 859, 706 N.Y.S.2d 233).   Indeed, the record reflects that the plaintiff himself utilized the knife on a regular basis for approximately eight months to a year before the accident without any difficulty, complaint, or injury.

Having failed to submit any evidence to demonstrate that the design of the knife presented “an unreasonable risk of harm” or “a substantial likelihood of harm” to the user (Voss v. Black & Decker Mfg. Co., supra at 107-108, 463 N.Y.S.2d 398, 450 N.E.2d 204;  Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479, 426 N.Y.S.2d 717, 403 N.E.2d 440), the plaintiff failed to sustain his burden to raise a triable issue of fact.   Accordingly, the Supreme Court properly granted Roberts's motion for summary judgment dismissing the complaint insofar as asserted against it.