Liriano v. Hobart Corp.

• Decision Date: 02 January 1998
• Docket Number: 709,D,Nos. 683,s. 683
• Citation: 132 F.3d 124
• Parties: Prod.Liab.Rep. (CCH) P 15,132, Prod.Liab.Rep. (CCH) P 15,340 Luis LIRIANO, Plaintiff-Appellee, v. HOBART CORPORATION, Defendant-Third Party Plaintiff-Appellant, 616 Melrose Meat Corporation, s/h/a Super Associated, Third-Party-Defendant-Appellant. ocket 96-9641, 97-7449.
• Court: U.S. Court of Appeals — Second Circuit

Page 124

132 F.3d 124

Prod.Liab.Rep. (CCH) P 15,132, Prod.Liab.Rep. (CCH) P 15,340

Luis LIRIANO, Plaintiff-Appellee, v. HOBART CORPORATION, Defendant-Third Party Plaintiff-Appellant 616 Melrose Meat Corporation, s/h/a Super Associated Third-Party-Defendant-Appellant.

Nos. 683, 709, Docket 96-9641, 97-7449.

United States Court of Appeals Second Circuit.

Argued Oct. 20, 1997.

Decided Jan. 2, 1998.

Steven B. Prystowsky, Lester Schwab Katz & Dwyer, New York City, (Robert D. Monnin, Saul Wilensky, of counsel) (Thompson Hine & Flory, L.L.P., Cleveland, OH, of counsel), for Defendant-Third Party Plaintiff-Appellant.

William M. Kimball, New York,City (James P. O'Connor, of counsel), for Third-Party-Defendant-Appellant.

Abby J. Resnick, Trolman Glaser & Lichtman, New York City, (Brian J. Isaac, of counsel), for Plaintiff-Appellee.

Before: NEWMAN, CALABRESI, CUDAHY, ^* Circuit Judges.

CALABRESI, Circuit Judge.

I. BACKGROUND

Luis Liriano, a seventeen-year-old employee in the meat department at Super Associated grocery store ("Super"), was injured on the job in September 1993 when he was feeding meat into a commercial meat grinder whose safety guard had been removed. His hand was caught in the "worm" that grinds the meat; as a result, his right hand and lower forearm were amputated.

The meat grinder was manufactured and sold in 1961 by Hobart Corporation ("Hobart"). At the time of the sale, it had an affixed safety guard that prevented the user's hands from coming into contact with the feeding tube and the grinding "worm." No warnings were placed on the machine or otherwise given to indicate that it was dangerous to operate the machine without the safety guard in place. Subsequently, Hobart became aware that a significant number of purchasers of its meat grinders had removed the safety guards. And in 1962, Hobart began issuing warnings on its meat grinders concerning removal of the safety guard.

There is no dispute that, when Super acquired the grinder, the safety guard was intact. It is also not contested that, at the time of Liriano's accident, the safety guard had been removed. There is likewise no doubt that Hobart actually knew, before the accident, that removals of this sort were occurring and that use of the machine without the safety guard was highly dangerous. And Super does not question that the removal of the guard took place while the grinder was in its possession.

Liriano sued Hobart under theories of negligence and strict products liability for, inter alia, defective product design and failure to warn. He brought his claims in the Supreme Court, Bronx County, New York. Hobart removed the case to the United States District Court for the Southern District of New York, and also impleaded Super as a third-party defendant, seeking indemnification and/or contribution. The District Court (Shira A. Scheindlin, Judge ) dismissed all of Liriano's claims except those based on failure to warn.

Following trial, the jury concluded that the manufacturer's failure to warn was the proximate cause of Liriano's injuries and apportioned liability 5% to Hobart and 95% to Super. On partial retrial, limited to the extent of Liriano's responsibility, the jury assigned him 33 1/3% of the responsibility. On appeal, Hobart and Super argue, inter alia, that the question of whether Hobart had a duty to warn Liriano should have been decided in their favor by the court, as a matter of law. It is this question that gives rise to the current certification.

II. DISCUSSION

A. Applicable New York Law

It is well-settled under New York law that a manufacturer is under a duty to use reasonable care in designing its product so that it will be safe when "used in the manner for which the product was intended, as well as unintended yet reasonably foreseeable use." Micallef v. Miehle Co., 39 N.Y.2d 376, 385-86, 348 N.E.2d 571, 577, 384 N.Y.S.2d 115, 121 (1976) (citations omitted). It is equally well-settled in New York that manufacturers have a duty to warn users of foreseeable dangers inherent in their products. See Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 297, 591 N.E.2d 222, 225, 582 N.Y.S.2d 373, 376 (1992); McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 68, 181 N.E.2d 430, 433, 226 N.Y.S.2d 407, 411 (1962); Bukowski v. CooperVision Inc., 185 A.D.2d 31, 33, 592 N.Y.S.2d 807, 808 (3d Dep't 1993).

In Robinson v. Reed-Prentice Division, 49 N.Y.2d 471, 403 N.E.2d 440, 426 N.Y.S.2d 717 (1980), the New York Court of Appeals in effect removed a set of product liability cases from the Micallef analysis of "intended" and "reasonably foreseeable use." The Robinson case itself involved a machine designed with a safety shield that could not be kept in an open (unprotecting) position due to a sophisticated interlock system. This interlock was designed to prevent the machine from operating unless its safety shield was in a closed (protecting) position. See id. at 476-77, 403 N.E.2d at 441-42, 426 N.Y.S.2d at 718-19. The plaintiff's employer, however, cut holes in the safety shield so that the machine would still operate (without the protections of the safety shield). See id. at 477, 403 N.E.2d at 442, 426 N.Y.S.2d at 719. In other words, the employer bypassed the safety devices of the shield and the interlocking safety system.

The New York Court of Appeals held that a manufacturer of a product may not be held liable "either on a strict products liability or negligence cause of action, where, after the product leaves the possession and control of the manufacturer, there is a subsequent modification which substantially alters the product and is the proximate cause of plaintiff's injuries." Id. at 475, 403 N.E.2d at 441, 426 N.Y.S.2d at 718. "Material alterations at the hands of a third party which work a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature, however foreseeable that modification may have been, are not within the ambit of a manufacturer's responsibility." Id. at 481, 403 N.E.2d at 444, 426 N.Y.S.2d at 721. ¹

Robinson, though never overruled, has not been left undisturbed. Thus in Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864, 473 N.Y.S.2d 378 (1984), decided four years after Robinson, the Court of Appeals not only reaffirmed a manufacturer's duty to warn purchasers of dangers in the product, but clearly held that this duty on the part of the manufacturer to warn can continue even after the original sale:

A manufacturer ... may, however, incur liability for failing to warn concerning dangers in the use of a product which come to his attention after manufacture or sale, through advancements in the state of the art, with which he is expected to stay abreast, or through being made aware of later accidents involving dangers in the product of which warning should be given to users.

Id. at 274-75, 473 N.Y.S.2d 378, 461 N.E.2d 864, 461 N.E.2d at 871, 473 N.Y.S.2d at 385 (citations omitted) (emphasis added). ²

Six years after Robinson, moreover, the Court of Appeals qualified Robinson in another way and declined to hold that all disablements of safety devices constitute subsequent modifications precluding a manufacturer's liability. In Lopez v. Precision Papers, Inc., 67 N.Y.2d 871, 492 N.E.2d 1214, 501 N.Y.S.2d 798 (1986), the court held that a disablement does not necessarily foreclose liability where safeguards can be easily removed and where such removal thereby increases the efficacy of the product. The plaintiff in Lopez, a forklift operator, was severely injured when a large roll of paper fell from a wooden pallet on the machine he was operating and hit him on the head. The plaintiff sued the forklift manufacturer, alleging certain design defects, including an easily removable overhead guard. See Lopez v. Precision Papers, Inc., 107 A.D.2d 667, 667-68, 484 N.Y.S.2d 585, 586-87 (2d Dep't 1985), aff'd, 67 N.Y.2d 871, 492 N.E.2d 1214, 501 N.Y.S.2d 798 (1986). The trial court granted partial summary judgment to the manufacturer, reasoning that "a manufacturer may not be held liable for the negligent alteration of the product by a user, even if the alteration is foreseeable." Id. at 668, 484 N.Y.S.2d at 587.

The Appellate Division reversed, ³ holding that Robinson, "the case relied upon by Special Term, does not, as a matter of law, bar plaintiffs' claim." Id. Robinson, the court said, was a case in which "the modification was so substantial that it permanently destroyed the functional utility of a safety gate." Id. at 669, 484 N.Y.S.2d at 587. In Lopez, instead, the safety device was easily removed and the removal made the product more functional. See id. ⁴ Under the circumstances, the court held, a jury could decide "the forklift's intended purposes." Id. at 669, 484 N.Y.S.2d at 587-88. In other words, if the jury found that removability of the safety guard was part of the forklift's design, then the guard's removal did not constitute a subsequent modification of the product.

The Court of Appeals affirmed the Appellate Division. It held that a manufacturer may, under some circumstances, be liable under a design defect theory even though the removal of a safety feature proximately caused the injury. But in order to hold a defendant-manufacturer liable for injuries under Lopez on such a theory, a plaintiff has to prove that the product "was purposefully manufactured to permit its use without the safety guard." Lopez, 67 N.Y.2d at 873, 492 N.E.2d at 1215, 501 N.Y.S.2d at 799.

B. Unsettled Issues of Law

The further articulation of Cover and Lopez has, we think, left the law uncertain in various respects. Of particular moment to the case before us, the law appears to be unclear on whether a manufacturer may be liable for failure to warn of dangers associated with foreseeable and/or known misuses of a product, where the product has been substantially modified by a third party's removal of the product's safety devices (i.e., in...