Opera v. Hyva, Inc.

• Decision Date: 14 May 1982
• Citation: 450 N.Y.S.2d 615,86 A.D.2d 373
• Parties: Michael A. OPERA and Sharon C. Opera, Respondents, v. HYVA, INC., Respondent-Appellant. HYVA, INC., Third-Party Plaintiff-Respondent-Appellant, v. MOOG, INC., Third-Party Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 615

450 N.Y.S.2d 615

86 A.D.2d 373

Michael A. OPERA and Sharon C. Opera, Respondents, v. HYVA, INC., Respondent-Appellant.

HYVA, INC., Third-Party Plaintiff-Respondent-Appellant, v. MOOG, INC., Third-Party Defendant-Appellant-Respondent.

Supreme Court, Appellate Division Fourth Department.

May 14, 1982.

Canale, Madden & Burke, P. C., Buffalo (Howard Burke, Buffalo, of counsel), for third-party defendant-appellant-respondent.

Brown, Maloney, Gallup, Roach & Busteed, P. C., Buffalo (John Gallup, Buffalo, of counsel), for respondent-appellant.

Offerman, Fallon, Mahoney & Cassano, Buffalo (Leo Fallon, Buffalo, of counsel), for respondents.

Before DILLON, P. J., and SIMONS, DOERR, MOULE and SCHNEPP, JJ.

SIMONS, Justice.

Plaintiff Michael A. Opera fractured his right leg while skiing at Bluemont, a ski area owned and operated by defendant Hyva, Inc. He and his wife sued defendant, claiming that the injury was caused by a defective binding on skis rented from it. Defendant thereafter impleaded third-party defendant Moog, Inc., the manufacturer of the binding. The jury awarded plaintiffs compensatory and derivative damages on their strict products liability cause of action and it apportioned liability 25% against defendant Hyva, Inc. and 75% against third-party defendant Moog, Inc.

The accident happened on February 12, 1977 when plaintiff, who had only been on skis twice before, was skiing downhill on the beginners' slope. While doing so, he fell forward and slightly to the right. His left ski binding released but the right one did not and he sustained angulated fractures of the distal third of his tibia and fibula, an injury known as a "boot top" fracture because of its location. It was plaintiff's claim that the bindings should have released and that defendant's employees had wrongfully adjusted them too tightly at the time of rental, using a setting which required the application of too much force before releasing. He claims that defendant relied on a defective instruction manual supplied by the manufacturer which recommended binding settings which were "not reasonably safe". Plaintiff's evidence on the point included instruction manuals published by Moog after the accident and which contained modifications which plaintiff claimed should have been used in prior manuals.

There should be a reversal. The evidence of post-accident changes in Moog's manual was admissible to prove the feasibility of using a different system of adjusting the bindings, but the court erred in instructing the jury that these post-accident modifications were evidence that the binding was not reasonably safe when marketed (see Rainbow v. Elia Bldg. Co., 79 A.D.2d 287, 436 N.Y.S.2d 480, affd., 56 N.Y.2d 550, 449 N.Y.S.2d 967, 434 N.E.2d 1345 Bolm v. Triumph Corp., 71 A.D.2d 429, 436-437, 422 N.Y.S.2d 969; and cf. Caprara v. Chrysler Corp., 52 N.Y.2d 114, 436 N.Y.S.2d 251, 417 N.E.2d 545).

To state the problem in its simplest terms, bindings for downhill skis should keep the skis fastened on the skier's foot when he needs them but release so that ski and skier will separate before excessive force, encountered because of a fall or unexpected terrain, is applied to the skier's body. Excessive force is force that will fracture the skier's leg bones. And that is the variable factor in adjusting ski bindings; how much force--measured in foot-pounds to account for the leverage of the ski--will the skier's bones withstand. Obviously, it differs for skiers of different sizes and skiing styles. All binding manufacturers address this problem in the same way. They use various adjustment tables which state the safe force (as discovered by empirical data from laboratory tests) that individual skiers can tolerate. By extrapolation, these readings are transferred from the adjustment table to the manufacturer's conversion chart which relates it to the proper setting to be used for the binding.

At the time of this accident there were three adjustment tables available for measuring the safe force which could be tolerated by individual skiers. Moog's manual for the 1976-1977 season used two of them. The first was the I.A.S. system which required measuring the diameter of the skier's tibia. This was the most precise test of bone strength when done in the laboratory on a denuded bone, but its use presented some obvious difficulties when measurement was made on a human leg in a commercial setting. The second table was called the BfU system which calibrated the release force by considering the skier's sex, weight and ability (measured by whether the skier was an average or fast skier). The BfU Tables were used by defendant to determine that a D setting should be used on the binding rented to plaintiff.

The third set of adjustment tables, relied on by plaintiff, were known as the Universal Binding Adjustment Tables. They used a "weight and ability" or Lipe ^* method of measuring the foot-pounds that a given skier's legs could safely withstand by taking into consideration the skier's weight and ability (as measured by whether the skier was a beginner, advanced novice, intermediate, advanced intermediate or expert). Using the Lipe method, plaintiff's binding should have been adjusted to release more easily by adjusting it to an E or F setting. As noted, Moog's 1976-1977 instruction manual did not contain the Lipe Tables, but in the manuals published for the 1977-1978 and 1978-1979 ski seasons, the Lipe Weight and Ability Tables were substituted for the BfU Tables. These post-accident manuals were received in evidence.

It is now familiar law that a manufacturer is liable for producing a defective product which causes injury in a cause of action for strict products liability. The product may be defective because of the way it was made (see, e.g., Caprara v. Chrysler Corp., 52 N.Y.2d 114, 436 N.Y.S.2d 251, 417 N.E.2d 545, supra; Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622), the way it was designed (see, e.g., Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 426 N.Y.S.2d 717, 403 N.E.2d 440; Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571; Bolm v. Triumph Corp., 33 N.Y.2d 151, 350 N.Y.S.2d 644, 305 N.E.2d 769; Rainbow v. Elia Bldg. Co., 79 A.D.2d 287, 436 N.Y.S.2d 480, supra), or because the manufacturer failed to give adequate warning or instructions on its use (see e.g., Torrogrossa v. Towmotor Co., 44 N.Y.2d 709, 405 N.Y.S.2d 448, 376 N.E.2d 920; Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 423 N.Y.S.2d 95, affd., 52 N.Y.2d 768, 436 N.Y.S.2d 614, 417 N.E.2d 1002; Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75 A.D.2d 55, 427 N.Y.S.2d 1009). In the first of these, a defect in construction through mistake in manufacturing or assembly, the plaintiff proves that the product which caused his injury was defective in the sense that it did not perform as intended. Fault plays no part in the liability equation; a defectively manufactured product is one that is flawed because, without regard to fault, it was misconstructed. A defectively designed product, on the other hand, is one that presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to plans and specifications (see, e.g., Robinson v. Reed-Prentice, Div. of Package Machine Co., 49 N.Y.2d 471, 478-479, 426 N.Y.S.2d 717, 403 N.E.2d 440, supra; Rainbow v. Elia Bldg. Co., 79 A.D.2d 287, 294, 436 N.Y.S.2d 480, supra). The decision that a product was unreasonably dangerous because of its design involves a balancing process to assess whether the benefits of a particular design outweighed the risks of using it and also what alternative designs were available and feasible at the time the product was marketed, all subjective judgments. Defective design cases are thus similar to negligence cases and the standards for imposing liability for design defects are general negligence principles (Bolm v. Triumph Corp., 33 N.Y.2d 151, 157-158, 350 N.Y.S.2d 644, 305 N.E.2d 769, supra; Rainbow v. Elia Bldg. Co., supra; and see, generally, Hoenig, Resolution of "Crashworthiness" Design Claim, 55 St. John's L.Rev. 633, 659 et seq.). So, too, in the case of failure to give adequate warning or...