Tavares v. Hobart Waste Compactor, Inc.

• Decision Date: 06 June 1989
• Citation: 151 A.D.2d 251,542 N.Y.S.2d 170
• Parties: , Prod.Liab.Rep. (CCH) P 12,248 Francisco TAVARES, Plaintiff-Respondent, v. HOBART WASTE COMPACTOR, INC., t/n Hobart Corp., Appellant and Third-Party Plaintiff-Appellant, and Southern Equipment Corp., et al., Respondents. Interstate United Corporation, et al., Third-Party Defendants-Respondents et al., Third-Party Plaintiff.
• Court: New York Supreme Court — Appellate Division

Page 170

542 N.Y.S.2d 170

151 A.D.2d 251, Prod.Liab.Rep. (CCH) P 12,248

Francisco TAVARES, Plaintiff-Respondent, v. HOBART WASTE COMPACTOR, INC., t/n Hobart Corp., Appellant and Third-Party Plaintiff-Appellant and Southern Equipment Corp., et al., Respondents. Interstate United Corporation, et al., Third-Party Defendants-Respondents et al Third-Party Plaintiff.

Supreme Court, Appellate Division First Department.

June 6, 1989.

G. Statfeld, for plaintiff-respondent.

S.J. Prystowsky, New York City, for defendant-appellant,

M.J. Ferguson, P.B. Murphy, D.B. DiCicco, Lake Success, for defendants-respondents.

D. Emanuel, P.L. Wynne, for third-party defendant-respondent.

Before SULLIVAN, J.P., and CARRO, ASCH, ROSENBERGER and ELLERIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered on or about October 6, 1988, which, inter alia, denied defendant and third-party plaintiff Hobart Corporation's motion to dismiss the complaint, cross-claims and counter-claims, unanimously modified, on the law, to grant said motion to the extent of dismissing the second and third causes of action of the complaint and, except as thus modified, affirmed without costs or disbursements.

Defendant and third-party plaintiff Hobart manufactured a waste compactor equipped with a retractable discharge chute intended to block a user from inserting his hand into the machine, and an interlock switch which would prevent the compactor from being activated if the chute is raised. The machine was sold by Hobart to its present owner in 1973. On March 7, 1985, twelve years later, plaintiff sustained serious injuries when his left forearm and hand were caught inside the compactor's metal paddle. It is uncontroverted that a third party had altered the compactor's safety device by removing and bypassing the interlock. Hobart argues that, as originally equipped, the compactor was reasonably safe for its intended use and that, had the safety device not been removed and the interlock switch "jumped", plaintiff's injury would not have occurred.

We believe that sufficient has been shown to warrant denial of Hobart's motion for summary judgment dismissing the negligence and products liability causes of action. This record includes an expert's opinion that it was technically feasible in 1973 to design and manufacture a compactor that could not be activated even if the safety interlock malfunctioned or in any way became inoperable. Moreover,...