Lauber v. Sears, Roebuck & Co.

273 A.D.2d 922, 709 N.Y.S.2d 325, 2000 N.Y. App. Div. LEXIS 6802

Opinion

Judgment unanimously affirmed without costs. Memorandum: John Lauber (plaintiff) was injured while driving a tractor purchased from defendant Sears, Roebuck and Company and manufactured by defendant American Yard Products Division, WCI Outdoor Products, Inc. Plaintiff turned around to observe traffic, placing his hand on the rear fender of the tractor to balance himself, and his fingers were caught in the chains of the rear wheel. He commenced this action asserting causes of action for negligence, breach of warranty, and strict products liability.

Supreme Court properly granted defendants’ motion for summary judgment dismissing the amended complaint. Defendants met their initial burden of establishing that there was no defect in the design or manufacture of the tractor and that they were riot negligent in its design or manufacture (see, Rochester Refrig. Corp. v Easy Heat, 222 AD2d 1013, 1014, lv dismissed 87 NY2d 1056, lv denied 89 NY2d 817). Defendants established that, in the exercise of reasonable care, plaintiff should have discovered that the rear fender was approximately IV2 inches above the tire and that, if his hand came in contact with the moving tire, an injury would occur (see generally, Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106). Defendants further established that the tractor was reasonably safe for the ordinary purposes for which it is used (see generally, UCC 2-314 [2] [c]; Affuso v Crestline Plastic Pipe Co., 194 AD2d 884, 885). Finally, defendants established that they had no duty to warn; the danger of placing fingers close to a moving wheel is among the “limited class of hazards” for which no warning is necessary “because they are patently dangerous or pose open and obvious risks” (Liriano v Hobart Corp., 92 NY2d 232, 241). In opposition to the motion, plaintiffs failed to raise a triable issue of fact on any cause of action. (Appeal from Judgment of Supreme Court, Erie County, Sedita, Jr., J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Hayes and Hurlbutt, JJ.