Scarangella v. THOMAS BUILT

• Decision Date: 06 July 1999
• Citation: 93 N.Y.2d 655,717 N.E.2d 679,695 N.Y.S.2d 520
• Parties: CONCETTA SCARANGELLA et al., Appellants, v. THOMAS BUILT BUSES, INC., Respondent and Third-Party Plaintiff-Respondent. HUNTINGTON COACH CORP., INC., Third-Party Defendant-Respondent.
• Court: New York Court of Appeals Court of Appeals

93 N.Y.2d 655

717 N.E.2d 679

695 N.Y.S.2d 520

CONCETTA SCARANGELLA et al., Appellants, v. THOMAS BUILT BUSES, INC., Respondent and Third-Party Plaintiff-Respondent.

HUNTINGTON COACH CORP., INC., Third-Party Defendant-Respondent.

Court of Appeals of the State of New York.

Argued May 4, 1999.

Decided July 6, 1999.

Sullivan & Liapakis, P. C., New York City (Stephen C. Glasser, Sidney H. Asch and Robert G. Sullivan of counsel), for appellants.

Linda Trummer-Napolitano, White Plains, and Henry R. Simon for respondent and third-party plaintiff-respondent. Deegan & Deegan, L. L. P., Hempstead (Diane K. Farrell and James V. Deegan of counsel), for third-party defendant-respondent.

Chief Judge KAYE and Judges BELLACOSA, SMITH, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

LEVINE, J.

A school bus being operated in reverse by a coemployee struck and severely injured plaintiff Concetta Scarangella, a school bus driver for third-party defendant Huntington Coach Corp., Inc. The accident occurred in Huntington's bus parking yard on September 26, 1988. The vehicle was one of 10 new school buses that defendant Thomas Built Buses, Inc., sold Huntington in 1988. At that time, Thomas offered buyers as an optional safety feature a back-up alarm that would automatically sound when a driver shifted the bus into reverse gear, but Huntington chose not to purchase this optional equipment.

After plaintiff and her husband commenced this action for negligence, breach of warranty and products liability, Thomas made a motion to preclude plaintiff from submitting to the jury her claim that the lack of a back-up alarm was a design defect. In support of its motion, Thomas submitted a memorandum of law and excerpts from the deposition of Huntington's president and chief operating officer, Kevin Clifford.

According to Clifford's deposition testimony, Huntington owned and operated 190 school buses and had 300 employees. Clifford had worked for the company for over 30 years and had been a president of the New York State School Bus Owners Association. Clifford explained that he was aware that the back-up alarms were available but made a considered decision not to purchase them. He opted against the alarm because "it screams" when a bus is put in reverse gear, and he intended to park the buses at a bus yard in the middle of a residential neighborhood where his company had been experiencing problems with neighbors concerning noise pollution. When the buses were being parked in the bus yard, there "had to be a tremendous amount of backing up," and Clifford believed it was unnecessary to equip all 100 buses in the lot with the "screaming" alarms. Instead, Clifford instructed the drivers to be cautious and to use the bus's ordinary horn before backing up.

In response to Thomas's motion, plaintiff proffered no specific evidence. She based her design defect claim entirely on the proposition that, because a school bus driver always has a substantial blind spot when operating the vehicle in reverse, a school bus must invariably be equipped with an automatically engaged back-up alarm. Supreme Court concluded that there was no triable issue of fact on this design defect claim. It thus granted defendant's motion to preclude plaintiff from presenting any evidence on the issue to the jury.

Plaintiff proceeded to trial on the theory that the bus was defectively designed because it did not have proper mirrors. At the conclusion of plaintiff's case, the Trial Judge directed a verdict for defendant and dismissed the complaint. The Appellate Division affirmed (250 AD2d 664).

Plaintiff did not object to the motion to preclude evidence regarding this design defect claim on the procedural ground that it was being used improperly to obtain a final disposition of the merits of the claim, much like a motion for partial summary judgment. Instead, the response was to address the merits of her design defect claim. Therefore, the propriety of this procedural tactic to effect the result gained in this case is not before us. Thus, the only issue before us is whether, based upon the submissions on the motion to preclude, plaintiff was properly barred from presenting to a jury her claim that the bus was defectively designed by Thomas because it did not incorporate the back-up alarm as standard equipment. Because we conclude that in the procedural context framed by the parties the preclusion was not erroneous as a matter of law, we affirm.

A defectively designed product "`is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce'" (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107). A manufacturer can be held liable for selling a defectively designed product because the manufacturer "is in the superior position to discover any design defects and alter the design before making the product available to the public" (id., at 107).

In Voss, we identified seven nonexclusive factors to be considered in balancing the risks created by the product's design against its utility and cost (id., at 109). As relevant here, these include the likelihood that the product will cause injury, the ability of the plaintiff to have avoided injury, the degree of awareness of the product's dangers which reasonably can be attributed to the plaintiff, the usefulness of the product to the consumer as designed as compared to a safer design and the functional and monetary cost of using the alternative design (id.). An additional pertinent factor that may be taken into account is "the likely effects of [liability for failure to adopt] the alternative design on * * * the range of consumer choice among products" (Restatement [Third] of Products Liability § 2, comment f). Where a court, after considering the relevant facts and risk-utility factors, determines that the plaintiff has failed to make out a prima facie case of a design defect, the claim should not be submitted to the jury (see, Fallon v Hannay & Son, 153 AD2d 95, 99; 1A NY P.JI3d 587).

Biss v Tenneco, Inc. (64 AD2d 204, lv denied 46 NY2d 711) and Rainbow v Elia Bldg. Co. (79 AD2d 287, affd for reasons stated below 56 NY2d 550) applied New York's design defect jurisprudence to fact patterns in which the buyer of a product elected not to purchase an optional safety device to accompany it. Biss held that a manufacturer of a loader vehicle could not be found liable for negligent design where an employee of the purchaser was injured due to the absence of an optional rollover protection structure the purchaser chose not to have included when the vehicle was acquired. The opinion reasoned that

"defendants had fulfilled their duty to exercise reasonable skill and care in designing the product as a matter of law when they advised the purchaser that an appropriate safety structure * * * was available. * * * If knowledge of available safety options is brought home to the purchaser, the duty to exercise reasonable care in selecting those appropriate to the intended use rests upon him. He is the party in the best position to exercise an intelligent judgment to make the trade-off between cost and function, and it is he who should bear the responsibility if the decision on optional safety equipment presents an unreasonable risk to users" (Biss v Tenneco, Inc., supra, at 207 [emphasis supplied]).

In Rainbow, plaintiff claimed that a motorcycle without an optional safety feature, side crash bars, was unreasonably dangerous. The plaintiff was "an experienced motorcyclist [who] * * * had been a successful motorcycle racer for many years [and] * * * had removed crash bars mounted on a previously owned motorcycle" (Rainbow v Elia Bldg. Co., supra, 79 AD2d, at 291 [emphasis supplied]). The Court dismissed plaintiff's complaint, holding that the buyer "was in the best...