Messina v. Clark Equipment Company

• Citation: 263 F.2d 291
• Decision Date: 02 February 1959
• Docket Number: No. 44,Docket 25117.,44
• Parties: Gloria L. MESSINA, as Administratrix of the goods, chattels and credits which were of Joseph C. Messina, deceased, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

263 F.2d 291 (1959)

Gloria L. MESSINA, as Administratrix of the goods, chattels and credits which were of Joseph C. Messina, deceased, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, Defendant-Appellee.

No. 44, Docket 25117.

United States Court of Appeals Second Circuit.

Argued December 10, 1958.

Decided February 2, 1959.

Julian Buchbinder, New York City, for plaintiff-appellant.

John Nielsen, New York City (John P. Smith, New York City, on the brief), for defendant-appellee.

Before CLARK, Chief Judge, and HINCKS and LUMBARD, Circuit Judges.

HINCKS, Circuit Judge.

This is a case brought to recover for the death of the plaintiff's intestate. The action was tried to a jury. Diversity of citizenship was the only ground of jurisdiction in the court below. The only question presented by this appeal is whether the dismissal of the complaint, after the plaintiff's case was in, was based on a proper interpretation of New York law.

The plaintiff's intestate was killed while operating an earth mover manufactured by the defendant. The earth mover had a large bucket device suspended in front of the machine, which was raised and lowered by two scissor arms, pivoted to the machine behind the driver's compartment, one on either side. The accident occurred when a gas leak in the machine was being repaired; in order to allow mechanics to get at the leak, the decedent had raised the scissor arms and the bucket. He then shut off the motor and was apparently getting out of the cab when the bucket fell. He was crushed between the scissor arms and the cab.

The plaintiff did not claim that the accident was caused by any latent defect in the manufacture of the machine. Her complaint was based solely upon the theory, supported by evidence at the trial, that it was customary among manufacturers of similar machines to provide guards and safety devices to prevent an operator from getting into or out of the cab while the arms were raised. Her attorney expressly disavowed other bases for recovery. The dismissal was based upon the ground that under New York law a manufacturer owes no duty to a remote user beyond the duty to keep the article of manufacture free from hidden defects or dangers. Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802; Inman v. Binghamton Housing Authority, 3 N.Y.2d 137, 143 N.E.2d 895, 59 A.L.R.2d 1072.

Upon this appeal the plaintiff contends that in this case the allegations and proof of a general standard among manufacturers to provide safety devices for such machines as that involved here, take the case outside the reach of Campo and Inman. But we think these cases make it plain that the manufacturer's liability is limited to hidden defects and concealed dangers. Indeed, in Campo it was said 301 N.Y. 468, 95 N.E.2d 803: "The cases establish that the manufacturer of a machine or any other article, dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers. Accordingly, if a remote user sues a manufacturer of an article for injuries suffered, he must allege and prove the existence of a latent defect or a danger not known to plaintiff or other users." The Campo opinion further states: "If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law's demands." And in Campo it was further observed with apparent approval: "In point of fact, several of the cases actually declare that a duty is owed, a liability imposed, only if the defect or danger be not `known' or `patent' or discoverable `by a reasonable inspection.'" (Emphasis as in Campo opinion.)

And if the Campo decision left any doubt of the New York law on the point, the doubt was set at rest by the Inman case 3 N.Y.2d 137, 143 N.E.2d 898 decided as recently as 1957. The suit had been brought against the architect and builder of an apartment house for injury to a child who fell from an unprotected stoop. The complaint charged negligence in the design and construction of the building which created a "hazardous and extremely dangerous condition," in the stoop area, "well-knowing that * * * it would be used by infant children" and that the danger stemmed from the absence of "a protective railing, guard, or any device whatever to protect the occupants * * * from falling." Although the court held that the principle of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, was not inapplicable because the action was concerned with a defect in real estate rather than a chattel, it went on to hold that under the MacPherson doctrine the complaint here was insufficient to state a cause of action. It expressly reaffirmed and quoted at some length from its Campo decision. It added: "And, since the presence of a latent defect or a danger not generally known is precedent to the manufacturer's liability, the absence of such a recital in the complaint is fatal to the existence of a cause of action." Apparently in Inman, as in Campo, there was no express allegation in the complaint of a general custom to provide a safety device. We think, however, that fact was implicit in the extract from the complaint set forth above. And in any event, under the unequivocal language of the opinion, even with such an allegation included the complaint would not have stated a cause of action.

In the instant case, plaintiff's counsel conceded, and necessarily so, that he made no claim of a latent defect or a danger unknown to the decedent. We think only a forced reading of the New York cases would avoid their application to this case. In 2 Harper & James, The Law of Torts § 28.5 (1956), the Campo decision was cited several times with critical comment. However that may be, the court, in its Inman decision, although citing Harper & James and hence fully cognizant of the comment therein, reaffirmed Campo. Apparently the court still felt that an extension of the MacPherson-Buick rule to cover an obvious defect in design and an obvious danger could properly be accomplished only by legislation — a view previously expressed in Campo. And we must apply the law as enunciated by the Court of Appeals of the State. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

Affirmed.

CLARK, Chief Judge (dissenting).

In New York, as well as elsewhere, the extent of one's duty to refrain from negligent conduct is measured by the scope of the risk which such conduct foreseeably entails. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253. And this law is the same for manufacturers as for other members of society. Crist v. Art Metal Works, 230 App.Div. 114, 243 N.Y.S. 496, 499, affirmed 255 N.Y. 624, 175 N.E. 341; Noone v. Fred Perlberg, Inc., 268 App.Div. 149, 49 N.Y.S.2d 460, 463, affirmed 294 N.Y. 680, 60 N.E.2d 839; Liedeker v. Sears, Roebuck & Co., 249 App.Div. 835, 292 N.Y.S. 541, affirmed 274 N.Y. 631, 10 N.E.2d 586. The Campo and Inman decisions did not shift the basic inquiry as to the reasonable foreseeability of the danger to a sterile definitional quibble over whether the injury was caused by a "latent" or a "patent" defect.

Since the majority...