Kirchoff v. International Harvester Co.

• Decision Date: 10 March 1988
• Citation: 526 N.Y.S.2d 238,138 A.D.2d 820
• Parties: Raymond W. KIRCHOFF et al., Respondents, v. INTERNATIONAL HARVESTER COMPANY et al., Appellants, and H.L. Gage Sales, Inc., et al., Respondents. (And Three Third-Party Actions.)
• Court: New York Supreme Court — Appellate Division

Page 238

526 N.Y.S.2d 238

138 A.D.2d 820

Raymond W. KIRCHOFF et al., Respondents, v. INTERNATIONAL HARVESTER COMPANY et al., Appellants and H.L. Gage Sales, Inc., et al., Respondents (And Three Third-Party Actions.)

Supreme Court, Appellate Division Third Department.

March 10, 1988.

Mausaw, Vigdor, Reeves, Heilbonner & Kroll (Thomas E. Goldman, of counsel), Rochester, for appellants.

McMahon & McMahon, P.C. (John P. Coseo, of counsel), Saratoga Springs, for Raymond W. Kirchoff and another, respondents.

La Pann, Reardon, Fitzgerald & Firth (Peter D. FitzGerald, of counsel), Glens Falls, for T & T Sales, defendants-respondents.

Maynard, O'Connor & Smith (Christopher K.H. Dressler, of counsel), Albany, for Terry Ziegler and another, third-party defendants-respondents.

Before KANE, J.P., and WEISS, YESAWICH and HARVEY, JJ.

YESAWICH, Justice.

Appeal from that part of an order of the Supreme Court (Brown, J.), entered February 9, 1987 in Saratoga County, which denied a motion by defendants International Harvester Company and Carswell Truck Center, Inc. for summary judgment dismissing the complaint and cross claims against them.

Plaintiff Raymond W. Kirchoff suffered personal injuries when thrown from a truck, in which he was riding as a passenger, as it flipped over following a brake failure on an icy road. Included among defendants in the action subsequently brought by Kirchoff and his wife are International Harvester Company (hereinafter Harvester), the manufacturer of the truck, and Carswell Truck Center, Inc. (hereinafter Carswell), the dealership which sold the truck to Kirchoff's employer. The complaint, insofar as it is directed at Harvester and Carswell, asserts theories of strict products liability. Plaintiffs maintain that the accident was proximately brought about by (1) a hole in the brake line which caused the single service brake system to fail, (2) the absence of a functional emergency brake, (3) the lack of seat belts, and (4) the defective and unsafe design of the truck, in that, when sold, it was not equipped with a dual braking system.

Harvester moved for summary judgment, urging that subsequent alterations made to the truck after it left Harvester's control, inter alia, removal of the emergency brake handle, removal of the seat belts and incapacitation of safety features that prevented the brake line from rubbing against the chassis (the cause of the hole in the brake line), were the proximate causes of the accident, and, therefore, it was free of liability as a matter of law. Plaintiffs replied that a dual brake system, which provides braking power to the front wheels even in the event of a rear wheel brake line failure, would have prevented this unfortunate occurrence and that a similar accident, of which Harvester was aware, imposed on it the duty to warn. Supreme Court denied Harvester's motion and, after receiving and reviewing memoranda from counsel on a discovery issue, granted plaintiffs' cross motion for furth discovery. No appeal was taken from this order, entered May 11, 1984. Upon completion of discovery, Harvester and Carswell, whose alleged liability is predicated solely on Harvester's liability, moved for summary judgment in...