Estrada v. Berkel Inc.

14 A.D.3d 529, 789 N.Y.S.2d 172, 2005 N.Y. App. Div. LEXIS 425

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 2005
• Status: Published

Opinions

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Dollard, J.), dated December 20, 2002, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

On May 4, 2000, Jorge Estrada left his two-year-old son, the plaintiff Daniel Estrada, watching television unattended at a table in the dining room of his restaurant while he walked next door to a supermarket to purchase supplies. During his absence, Daniel arose and entered the adjacent kitchen. He then placed a chair next to the counter, climbed up, and inserted his left hand into an electric meat grinder causing him to lose four fingers. The grinder, which was manufactured by the nonparty, Enterprise Manufacturing Company (hereinafter Enterprise Manufacturing), had been left running as a matter of convenience by a member of the kitchen staff. The defendant Berkel Incorporated acquired Enterprise Manufacturing’s commercial product line in or about 1956 and did not contest the issue of successor liability (see Schumacher v Richards Shear Co., 59 NY2d 239, 244 [1983]; Ward v Lithibar-Matik, Inc., 6 AD3d 424, 425 [2004]; Rivera v Anderson United Co., 283 AD2d 563 [2001]).

The plaintiffs commenced this action to recover damages for personal injuries based on negligence, failure to warn, and strict products liability. Following joinder of issue, the defendants moved for summary judgment dismissing the complaint. Contrary to the plaintiffs’ contention the Supreme Court correctly granted the defendants’ motion.

“Where liability is predicated on a failure to warn, New York views negligence and strict liability claims as equivalent” (Martin v Hacker, 83 NY2d 1, 8 n 1 [1993]). Where, however, the danger is readily apparent as a matter of common sense, there is no duty to warn (see Liriano v Hobart Corp., 92 NY2d 232, 242 [1998]; Carbone v Alagna, 239 AD2d 454, 456 [1997]). In any event, in this instance a warning would have been merely superfluous since the infant plaintiff could not read. “[A]s in any products liability case, the plaintiff in an action premised on inadequate warnings must prove causation” (Johnson v Johnson Chem. Co., 183 AD2d 64, 70 [1992]).

“A manufacturer who sells a product in a defective condition is liable for injury which results to another when the product is used for its intended purpose or for an unintended but reasonably foreseeable purpose” (Lugo v LJN Toys, Ltd., 75 NY2d 850, 852 [1990]; see Carbone v Alagna, supra at 456; Johnson, supra at 70). However, even if the affidavit of the plaintiffs’ expert was sufficient to raise triable issues of fact as to whether the grinder was negligently designed at the time it was manufactured and whether the balance of the relevant “risk-utility factors,” such as the availability of a feasible alternative design, weighed in their favor (see Milazzo v Premium Tech. Servs. Corp., 7 AD3d 586, 587 [2004]; Finazzo v American Honda Motor Co., 1 AD3d 315, 316 [2003]; Giunta v Delta Intl. Mach., 300 AD2d 350, 352 [2002]; cf. Warlikowski v Burger King Corp., 9 AD3d 360, 362 [2004]; Banks v Makita, U.S.A., Inc., 226 AD2d 659, 661 [1996]), “it cannot be said that the injured plaintiff was a reasonably foreseeable user of the commercial meatgrinding machine” (Darsan v Globe Slicing Mach. Co., 200 AD2d 551, 552 [1994]; Cramer v Toledo Scale Co., 158 AD2d 966, 967 [1990]; see also Ramirez v Avery Berkel, Inc., 2004 US Dist LEXIS 4510 [SD NY, Mar. 16, 2004]). Adams, J.P., Smith and Lifson, JJ., concur.