Optional Safety Equipment and the Savvy Purchaser

In a recent divided decision, New York's highest court may have changed some contours of product liability law as it affects cases involving optional equipment, knowledgeable purchasers and off-product warnings. The case is Passante v. Agway Consumer Prods. Inc., 2009 NY Slip Op. 03588 (N.Y. Ct. App. May 5, 2009), a 4-3 decision issued on May 5. The majority and dissenting opinions hum along briskly, together totaling only some 13 pages of slip opinion text. Don't be fooled by the relative brevity, however. There is plenty of meat to chew on and especially so when one looks beyond Passante to what the future now holds for summary judgment practice in such scenarios.

Background

Here are the facts. P was injured on the job at a warehouse where trucks or tractor-trailers would back up to a loading dock and have goods loaded into the truck bed or the trailer by workers such as P. A ramp or extension of the platform is needed to meet the trailer bed so that forklifts or pallet trucks can move in and out of the trailer. That ramp was provided by a mechanical platform called a “dock leveler.” The leveler's platform can move up and down, rising or lowering to match the height of the load bed.

When activated, the leveler platform swings up and a hinged lip at its edge also moves up, from a pendent position perpendicular to the platform to a position that forms an extension of the platform. This extended lip then meets the trailer bed. But, if not supported, the lip rotates back into its hanging position (downwards) perpendicular to the loading dock. If or when an employee stands on an unsupported lip, he will fall.

The subject leveler equipment was made by manufacturer M and sold by defendant S to E, the employer. It was designed for a “150-pound walk down,” which meant that a person weighing 150 pounds would be able to bring the leveler down to the requisite height by simply walking to the edge of the platform. P, however, weighed only 140 pounds and testified that he was not heavy enough to force the platform down without standing on the hinged lip.

Optional Mechanisms

Manufacturer M made and equipment seller S offered to sell Employer E a more expensive system called “Dok-Lok,” which secured a tractor-trailer to the loading dock and included a warning system so that workers know when they can safely enter the trailer and drivers know when they can safely pull away. E declined to buy the Dok-Lok system because it would require having an operator and also because a truck driver who drives off while a Dok-Lok is engaged would tear the bumper from his trailer.

An instruction sheet issued by M was posted on a wall in the Employer's loading dock area, warning operators not to walk on the lip edge when “walking down” the leveler. P was aware that the lip would begin to collapse during a “walk down” if the operator did not complete the “walk down” quickly enough.

The accident happened when P was “walking down” the leveler to get the platform to rest on a trailer. He was standing on the hinged lip as it made contact with the trailer bed. Unbeknownst to P, however, the tractor-trailer driver had not completed parking and thus no wheel chocks were in place. P stood on the hinged lip for a split second but, as the truck moved forward, the lip fell into its downwards position, causing P to fall.

P sued, charging the seller with defective design, failure to warn, and manufacturing defects. On the design issue, P alleged that the leveler lacked equipment restraining the tractor-trailer or securing it to the loading dock, and also lacked a warning system alerting the operator when it was safe to enter the trailer or notifying the truck driver that a dock leveler was in position. On warnings, P alleged that the seller failed to warn E of the danger of collapse when a tractor-trailer moved.

Following discovery, S moved for summary judgment. In the seller's supporting attachments was a brochure by M vividly describing its higher-grade, more expensive Dok-Lok system, but also calling the space between the loading dock and the trailer bed ' bridged by dock levelers ' a warehouse's “Danger Zone.” In opposition, P submitted affidavits by a mechanical engineer and an industrial engineer. These criticized the design because lighter men such as P could not “walk down” the leveler without standing on its lip. Further, the mechanical engineer said that even with a weight of 180 pounds, he was unable to urge the leveler to a horizontal position. Thus, employees such as P were forced to position themselves on the extended lip, which represented an unreasonable risk of harm since unscheduled departures of tractor-trailers were a known risk in the industry.

The industrial engineer criticized the warnings “on the wall,” remote from the area of control, which would not effectively remind the operator about the dangers of walking on the extended lip. He said that proper warnings should have included a “warning medallion” connected to the pull-chain directly at the point of operation. Additionally, some type of safety striping or demarcation of the lip itself was needed to fully advise the operator as to specific dangers of stepping onto the hinged lip. Further, no one had provided E with instructions for adjusting the leveler for operators with different body weights.

'Scarangella' Precedent

At the core of the controversy was the employer's full knowledge that the leveler equipment was not as safe as the optional equipment, Dok-Lok, which E had rejected. Was E's full knowledge about the limitations, risks and dangers of the leveler and the availability of safer options a controlling factor? Had S sold the product to a fully knowledgeable employer/user, who then bore the responsibility to make sure its employees were adequately capable, instructed and trained in using the product? Or did product liability bypass the impact of the intermediary employer, the knowledgeable purchaser?

In many respects, the court's decision in Scarangella v. Thomas Built Buses Inc., 93 NY 2d 655 (1999), held a key to answering these questions. There, a school bus driver was struck by a bus being operated in reverse in the school bus parking lot. The distributor/seller had offered, as an optional safety feature, an alarm that would automatically sound when the bus was shifted into reverse gear. The bus company eschewed the optional equipment because the alarms were noisy and the bus yard was located in a residential neighborhood where noise pollution was an issue.

The Court of Appeals held that a product that fails to incorporate safety equipment is not defective, as a matter of law, where: 1) the buyer is “thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available”; 2) there exist “normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment”; and 3) the buyer “is in a position, given the range of uses of the product, to balance the benefits and risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product.” Scarangella, 93 NY 2d at 66, quoted in Passante, Slip Op., at pp. 6-7. When these three circumstances exist, the buyer, not the manufacturer, is in the “superior position to make the risk-utility assessment.” Thus, a “well-considered decision by the buyer to dispense with the optional safety equipment will excuse the manufacturer from liability.”

Was the Passante case in essence another Scarangella or was it different? This question divided the court. Here, said Judge Eugene F. Pigott, Jr., writing for the majority, the first Scarangella principle was met. Clearly, E was knowledgeable about dock levelers and knew that Dok-Lok was an option. However, the second factor ' that the dock leveler would normally be used in circumstances in which the product is not unreasonably dangerous without a trailer restraint system such as Dok-Lok ' was not shown by the defendant. For example, the manufacturer's own brochure describes as a “pervasive risk” the danger that a tractor-trailer will inch forward (even with set brakes and chocked wheels) or be driven forward inadvertently, resulting in a fall by the leveler operator. Moreover, said the majority, “defendants have not refuted” ' whether by expert affidavits or by deposition testimony ' the opinion of P's engineer that the leveler with its collapsing lip posed an unreasonable risk of harm.

In Scarangella, the risks associated with the bus being operated in reverse in the parking yard were limited, since the buses only reversed in the yard and persons there, mostly other drivers, could simply exercise caution and avoid contact. Nothing about the buses made them unreasonably dangerous when engaged in normal reverse driving. By contrast, in Passante, the leveler posed a substantial risk of harm “as normally used.” This is because the leveler's hinged lip collapses if not supported and, yet, the lip is a platform extension the operator must “walk down” in order to adjust the correct height.

The record evidence also showed that operators of lesser weight must step onto the lip to complete the “walk down” maneuver. If so, the leveler's risk could not be avoided simply by cautious operation. Since defendants did not demonstrate the absence of material issues of fact as to whether “normal circumstances of use exist in which the dock leveler is not unreasonably dangerous without a trailer restraint system,” the second Scarangella factor was not satisfied and the design claim had to be reinstated. The majority deemed it unnecessary to discuss the third Scarangella factor.

Warnings Issue

On the sufficiency of the warnings claim, the court also found triable issues of fact. The instruction sheet posted on a wall in the loading dock area had a warning not to walk on the lip of the leveler during a “walk down.” Indeed, P was aware that the lip could begin to collapse if the “walk down” was not completed quickly enough. But there was no warning that “it is dangerous to remain on the lip, even momentarily, after it has engaged the trailer bed.” And P had worked elsewhere with a different leveler design where the hinged lip did not collapse. Then there was the affidavit of P's industrial engineer who opined that the posted warning away from the point of operation was not sufficient. He also said that striping or demarcation of the lip itself was needed as a reminder to the worker.

Citing “this record,” the majority could not conclude as a matter of law that P was “fully aware of the danger of standing on the lip after it had engaged the trailer bed.” Nor could the court conclude that site-of-operation warnings would have been superfluous.

Three judges dissented in a bristling opinion by Judge Robert S. Smith.

Conclusion

The majority and dissenting opinions reflect a deep division on cardinal principles attending products liability when optional safety features are rejected by a knowledgeable buyer capable of assessing the risk-utility of the purchase decision. There is reason for counsel to fully develop and assess their case facts very carefully. Scarangella and Passante represent a kind of template for factual development, pretrial discovery, expert proofs and motion practice. Little things may mean a lot. For example, the majority observes that the defense did not refute by expert affidavits or by deposition testimony the opinion of P's engineer that the collapsing lip posed an unreasonable risk of harm.

The court's decision on warnings (and the dissent's refutation) deserve deep reflection. Warnings liability essentially is open-ended for, by hindsight, someone can always devise some warning or admonition or instruction that arguably might have made a difference. Indeed, the hindsight perspective, even by a real “warnings expert,” that other words would have made a material difference in behavior and outcome is, at best, a product of a “soft” science and, more probably, a simple guess or speculation. Yet, enormous liability is made to hinge on such experts' ruminations.

Here, the situation is complicated by the presence of warnings away from the product or point of operation. However, clearly not all warnings can be on the product. Most involve warnings in owners' manuals for example. Is every criticism of an off-product, off-site warning to be a basis for suit despite the plaintiff's knowledge of the risk as, for example, detailed here by the dissent? Scarangella and Passante need to be read together as comprising the new road map in this area. Better factual preparation and advocacy is now even more important.

Michael Hoenig, a member of this newsletter's Editorial Board, is a member of Herzfeld & Rubin. This article originally ran in the New York Law Journal, an Incisive Media sister publication of this newsletter.

In a recent divided decision, New York's highest court may have changed some contours of product liability law as it affects cases involving optional equipment, knowledgeable purchasers and off-product warnings. The case is Passante v. Agway Consumer Prods. Inc. , 2009 NY Slip Op. 03588 (N.Y. Ct. App. May 5, 2009), a 4-3 decision issued on May 5. The majority and dissenting opinions hum along briskly, together totaling only some 13 pages of slip opinion text. Don't be fooled by the relative brevity, however. There is plenty of meat to chew on and especially so when one looks beyond Passante to what the future now holds for summary judgment practice in such scenarios.

Background

Here are the facts. P was injured on the job at a warehouse where trucks or tractor-trailers would back up to a loading dock and have goods loaded into the truck bed or the trailer by workers such as P. A ramp or extension of the platform is needed to meet the trailer bed so that forklifts or pallet trucks can move in and out of the trailer. That ramp was provided by a mechanical platform called a “dock leveler.” The leveler's platform can move up and down, rising or lowering to match the height of the load bed.

When activated, the leveler platform swings up and a hinged lip at its edge also moves up, from a pendent position perpendicular to the platform to a position that forms an extension of the platform. This extended lip then meets the trailer bed. But, if not supported, the lip rotates back into its hanging position (downwards) perpendicular to the loading dock. If or when an employee stands on an unsupported lip, he will fall.

The subject leveler equipment was made by manufacturer M and sold by defendant S to E, the employer. It was designed for a “150-pound walk down,” which meant that a person weighing 150 pounds would be able to bring the leveler down to the requisite height by simply walking to the edge of the platform. P, however, weighed only 140 pounds and testified that he was not heavy enough to force the platform down without standing on the hinged lip.

Optional Mechanisms

Manufacturer M made and equipment seller S offered to sell Employer E a more expensive system called “Dok-Lok,” which secured a tractor-trailer to the loading dock and included a warning system so that workers know when they can safely enter the trailer and drivers know when they can safely pull away. E declined to buy the Dok-Lok system because it would require having an operator and also because a truck driver who drives off while a Dok-Lok is engaged would tear the bumper from his trailer.

An instruction sheet issued by M was posted on a wall in the Employer's loading dock area, warning operators not to walk on the lip edge when “walking down” the leveler. P was aware that the lip would begin to collapse during a “walk down” if the operator did not complete the “walk down” quickly enough.

The accident happened when P was “walking down” the leveler to get the platform to rest on a trailer. He was standing on the hinged lip as it made contact with the trailer bed. Unbeknownst to P, however, the tractor-trailer driver had not completed parking and thus no wheel chocks were in place. P stood on the hinged lip for a split second but, as the truck moved forward, the lip fell into its downwards position, causing P to fall.

P sued, charging the seller with defective design, failure to warn, and manufacturing defects. On the design issue, P alleged that the leveler lacked equipment restraining the tractor-trailer or securing it to the loading dock, and also lacked a warning system alerting the operator when it was safe to enter the trailer or notifying the truck driver that a dock leveler was in position. On warnings, P alleged that the seller failed to warn E of the danger of collapse when a tractor-trailer moved.

Following discovery, S moved for summary judgment. In the seller's supporting attachments was a brochure by M vividly describing its higher-grade, more expensive Dok-Lok system, but also calling the space between the loading dock and the trailer bed ' bridged by dock levelers ' a warehouse's “Danger Zone.” In opposition, P submitted affidavits by a mechanical engineer and an industrial engineer. These criticized the design because lighter men such as P could not “walk down” the leveler without standing on its lip. Further, the mechanical engineer said that even with a weight of 180 pounds, he was unable to urge the leveler to a horizontal position. Thus, employees such as P were forced to position themselves on the extended lip, which represented an unreasonable risk of harm since unscheduled departures of tractor-trailers were a known risk in the industry.

The industrial engineer criticized the warnings “on the wall,” remote from the area of control, which would not effectively remind the operator about the dangers of walking on the extended lip. He said that proper warnings should have included a “warning medallion” connected to the pull-chain directly at the point of operation. Additionally, some type of safety striping or demarcation of the lip itself was needed to fully advise the operator as to specific dangers of stepping onto the hinged lip. Further, no one had provided E with instructions for adjusting the leveler for operators with different body weights.

'Scarangella' Precedent

At the core of the controversy was the employer's full knowledge that the leveler equipment was not as safe as the optional equipment, Dok-Lok, which E had rejected. Was E's full knowledge about the limitations, risks and dangers of the leveler and the availability of safer options a controlling factor? Had S sold the product to a fully knowledgeable employer/user, who then bore the responsibility to make sure its employees were adequately capable, instructed and trained in using the product? Or did product liability bypass the impact of the intermediary employer, the knowledgeable purchaser?

In many respects, the court's decision in Scarangella v. Thomas Built Buses Inc. , 93 NY 2d 655 (1999), held a key to answering these questions. There, a school bus driver was struck by a bus being operated in reverse in the school bus parking lot. The distributor/seller had offered, as an optional safety feature, an alarm that would automatically sound when the bus was shifted into reverse gear. The bus company eschewed the optional equipment because the alarms were noisy and the bus yard was located in a residential neighborhood where noise pollution was an issue.

The Court of Appeals held that a product that fails to incorporate safety equipment is not defective, as a matter of law, where: 1) the buyer is “thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available”; 2) there exist “normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment”; and 3) the buyer “is in a position, given the range of uses of the product, to balance the benefits and risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product.” Scarangella, 93 NY 2d at 66, quoted in Passante, Slip Op., at pp. 6-7. When these three circumstances exist, the buyer, not the manufacturer, is in the “superior position to make the risk-utility assessment.” Thus, a “well-considered decision by the buyer to dispense with the optional safety equipment will excuse the manufacturer from liability.”

Was the Passante case in essence another Scarangella or was it different? This question divided the court. Here, said Judge Eugene F. Pigott, Jr., writing for the majority, the first Scarangella principle was met. Clearly, E was knowledgeable about dock levelers and knew that Dok-Lok was an option. However, the second factor ' that the dock leveler would normally be used in circumstances in which the product is not unreasonably dangerous without a trailer restraint system such as Dok-Lok ' was not shown by the defendant. For example, the manufacturer's own brochure describes as a “pervasive risk” the danger that a tractor-trailer will inch forward (even with set brakes and chocked wheels) or be driven forward inadvertently, resulting in a fall by the leveler operator. Moreover, said the majority, “defendants have not refuted” ' whether by expert affidavits or by deposition testimony ' the opinion of P's engineer that the leveler with its collapsing lip posed an unreasonable risk of harm.

In Scarangella, the risks associated with the bus being operated in reverse in the parking yard were limited, since the buses only reversed in the yard and persons there, mostly other drivers, could simply exercise caution and avoid contact. Nothing about the buses made them unreasonably dangerous when engaged in normal reverse driving. By contrast, in Passante, the leveler posed a substantial risk of harm “as normally used.” This is because the leveler's hinged lip collapses if not supported and, yet, the lip is a platform extension the operator must “walk down” in order to adjust the correct height.

The record evidence also showed that operators of lesser weight must step onto the lip to complete the “walk down” maneuver. If so, the leveler's risk could not be avoided simply by cautious operation. Since defendants did not demonstrate the absence of material issues of fact as to whether “normal circumstances of use exist in which the dock leveler is not unreasonably dangerous without a trailer restraint system,” the second Scarangella factor was not satisfied and the design claim had to be reinstated. The majority deemed it unnecessary to discuss the third Scarangella factor.

Warnings Issue

On the sufficiency of the warnings claim, the court also found triable issues of fact. The instruction sheet posted on a wall in the loading dock area had a warning not to walk on the lip of the leveler during a “walk down.” Indeed, P was aware that the lip could begin to collapse if the “walk down” was not completed quickly enough. But there was no warning that “it is dangerous to remain on the lip, even momentarily, after it has engaged the trailer bed.” And P had worked elsewhere with a different leveler design where the hinged lip did not collapse. Then there was the affidavit of P's industrial engineer who opined that the posted warning away from the point of operation was not sufficient. He also said that striping or demarcation of the lip itself was needed as a reminder to the worker.

Citing “this record,” the majority could not conclude as a matter of law that P was “fully aware of the danger of standing on the lip after it had engaged the trailer bed.” Nor could the court conclude that site-of-operation warnings would have been superfluous.

Three judges dissented in a bristling opinion by Judge Robert S. Smith.

Conclusion

The majority and dissenting opinions reflect a deep division on cardinal principles attending products liability when optional safety features are rejected by a knowledgeable buyer capable of assessing the risk-utility of the purchase decision. There is reason for counsel to fully develop and assess their case facts very carefully. Scarangella and Passante represent a kind of template for factual development, pretrial discovery, expert proofs and motion practice. Little things may mean a lot. For example, the majority observes that the defense did not refute by expert affidavits or by deposition testimony the opinion of P's engineer that the collapsing lip posed an unreasonable risk of harm.

The court's decision on warnings (and the dissent's refutation) deserve deep reflection. Warnings liability essentially is open-ended for, by hindsight, someone can always devise some warning or admonition or instruction that arguably might have made a difference. Indeed, the hindsight perspective, even by a real “warnings expert,” that other words would have made a material difference in behavior and outcome is, at best, a product of a “soft” science and, more probably, a simple guess or speculation. Yet, enormous liability is made to hinge on such experts' ruminations.

Here, the situation is complicated by the presence of warnings away from the product or point of operation. However, clearly not all warnings can be on the product. Most involve warnings in owners' manuals for example. Is every criticism of an off-product, off-site warning to be a basis for suit despite the plaintiff's knowledge of the risk as, for example, detailed here by the dissent? Scarangella and Passante need to be read together as comprising the new road map in this area. Better factual preparation and advocacy is now even more important.

Michael Hoenig, a member of this newsletter's Editorial Board, is a member of Herzfeld & Rubin. This article originally ran in the New York Law Journal, an Incisive Media sister publication of this newsletter.