Brandon v. Caterpillar Tractor Corp.

• Decision Date: 31 December 1986
• Parties: , Prod.Liab.Rep. (CCH) P 11,249 William BRANDON, et al., Respondents, v. CATERPILLAR TRACTOR CORPORATION, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 165

510 N.Y.S.2d 165

125 A.D.2d 625, Prod.Liab.Rep. (CCH) P 11,249

William BRANDON, et al., Respondents, v. CATERPILLAR TRACTOR CORPORATION, Appellant, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Dec. 31, 1986.

Conboy, Hewitt, O'Brien & Boardman, New York City (J. Nicholas Suhr, John Carlson and David Rees Davies, of counsel), for appellant.

Bauman, Greene & Kunkis, P.C., New York City (Sandra Feder Krevitsky, of counsel), for respondents.

Before LAZER, J.P., and BRACKEN, WEINSTEIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., based, inter alia, on negligence and breach of warranty, the defendant Caterpillar Tractor Corporation appeals from an interlocutory judgment of the Supreme Court, Nassau County (Kelly, J., at trial on liability; Levitt, J., at trial on damages), entered November 15, 1984, which, inter alia, upon a jury verdict on the plaintiffs' negligence cause of action apportioning fault in the happening of the accident at 53% on the part of the defendant Caterpillar Tractor Corporation, 34% on the part of the defendant H.O. Penn Machine Co., and 13% on the part of the plaintiff William Brandon, and upon a jury verdict on the plaintiffs' strict liability cause of action, adjudged it to be liable to the plaintiff under both causes of action.

ORDERED that the interlocutory judgment is reversed, on the law and as an exercise of discretion, and a new trial is granted, with costs to abide the event.

During the course of the trial of this products liability action, involving the explosion of a bulldozer, several errors were committed which, in our view, served to deprive the appellant of a fair trial. Reversible error was committed when the trial court, over the appellant's objections, charged that the jury could infer that the product was defective based upon the circumstances surrounding the happening of the accident and that it could similarly infer that the product was defective at the time it left the manufacturer's hands. While the existence of a defect may be proven circumstantially (see, e.g., Halloran v. Virginia Chems., 41 N.Y.2d 386, 393 N.Y.S.2d 341, 361 N.E.2d 991; Iadicicco v. Duffy, 60 A.D.2d 905, 401 N.Y.S.2d 557) the delivery of a res ipsa loquitur type charge is inappropriate where the evidence, as here, is as equally consistent with nonliability as it is with liability (see, Halsey v. Ford Motor Co., 24 A.D.2d 826, 264 N.Y.S.2d 16, affd. 19 N.Y.2d 664, 278 N.Y.S.2d 856, 225 N.E.2d 549; 1 N.Y.PJI2d 141.1).

"[W]hen evidence is offered that an accident had occurred during the normal use of a product and that the product had not been damaged or misused since it left the manufacturer's control, a trier of the facts will be permitted to infer that a defect existed when the product left the manufacturer's control. However, once this inference has been countered, the plaintiff must come forward with some direct proof of the cause of the accident. Otherwise, any verdict which may be rendered in favor of the plaintiff will be based on pure conjecture as to the cause of the accident and, as such, cannot be allowed to stand " (Fox v. Corning Glass Works, 81 A.D.2d 826, 438 N.Y.S.2d 602 [emphasis added] ).

A res ipsa charge is, therefore, appropriate where the circumstances not only permit an inference that there is a defect, but where the evidence also supports the inference that the defect existed at the time the product left the manufacturer's hands (see, Tully v. Empire Equip. Corp., 28 A.D.2d 935, 282 N.Y.S.2d 322; Weinberger, New York Products Liability § 20.04).

In the matter at bar, the product which is alleged to be defective was approximately eight years old at the time of the accident, and the defendants offered substantial proof that the accident was attributable to ordinary "wear and...