469 F.2d 358 (2nd Cir. 1972), 51, Noto v. Pico Peak Corp.

Docket Nº:51, 72-1396.
Citation:469 F.2d 358
Party Name:Anthony NOTO and Barbara Failer b/n/f Stephen Failer, Plaintiffs, v. PICO PEAK CORPORATION, Defendant and Third-Party Plaintiff-Appellee, v. CARLEVARO & SAVIO, Third-Party Defendant-Appellant.
Case Date:November 20, 1972
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 358

469 F.2d 358 (2nd Cir. 1972)

Anthony NOTO and Barbara Failer b/n/f Stephen Failer, Plaintiffs,

v.

PICO PEAK CORPORATION, Defendant and Third-Party Plaintiff-Appellee,

v.

CARLEVARO & SAVIO, Third-Party Defendant-Appellant.

No. 51, 72-1396.

United States Court of Appeals, Second Circuit.

November 20, 1972

Argued Oct. 16, 1972.

Page 359

John P. Meaker, Waterbury, Vt., for third-party defendant-appellant.

James L. Morse, Burlington, Vt., for third-party plaintiff-appellee.

Before MANSFIELD, OAKES and TIMBERS, Circuit Judges.

OAKES, Circuit Judge:

This appeal is from a judgment obtained in a diversity case by a third party plaintiff ski lift operator against a third party defendant ski lift manufacturer. The operator, Pico Peak Corporation

Page 360

(hereinafter "Pico"), was originally sued by two persons injured when a cable on its double chair lift derailed on March 23, 1969. The cable derailment occurred as the result of a wobble on the bullwheel which supports the cable at the top of the lift, the wobble in turn resulting from bearing failure in the bullwheel. Pico impleaded the lift manufacturer, Carlevaro & Savio (hereinafter "Carlevaro"). At trial, after the individual paintiffs had rested, Pico settled with them for a total of $14,500. The case then went to the jury solely on Pico's third party claim against Carlevaro and the jury returned a verdict in favor of Pico for the full amount of Pico's settlement with the injured individuals.

Carlevaro asserts here that it should not have been held liable at all since any duty it had to Pico was fulfilled by appropriate instructions and warnings in respect to the maintenance of the bullwheel. Carlevaro also asserts that Pico was "actively" negligent in failing to stop the lift when the bullwheel began its erratic behavior with the result that there can be no indemnity. See Viens v. Anthony Co., 282 F.Supp. 983 (D.Vt. 1968). Carlevaro claims alternatively that it is entitled to a retrial because the fact of Pico's insurance came out in the individual plaintiffs' main case and because the court instructed the jury on the dollar amount of the settlement paid by Pico to them. We find each claim to be without merit.

Whether Carlevaro fulfilled its manufacturer's duty of designing properly, cf. Wasik v. Borg, 423 F.2d 44, 46-49 (2d Cir. 1970), 1 and of warning against foreseeable...

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