Vergara v. Scripps Howard, Inc.

• Court: New York Supreme Court — Appellate Division
• Citation: Vergara v. Scripps Howard, Inc., 691 N.Y.S.2d 392, 261 A.D.2d 302 (N.Y. App. Div. 1999)
• Decision Date: 25 May 1999
• Parties: RALPH VERGARA, Appellant-Respondent,<BR>v.<BR>SCRIPPS HOWARD, INC., et al., Defendants, and ROCKWELL INTERNATIONAL CORPORATION, Respondent-Appellant. (And a Third-Party Action.)

261 A.D.2d 302

691 N.Y.S.2d 392

RALPH VERGARA, Appellant-Respondent,

v.SCRIPPS HOWARD, INC., et al., Defendants, and ROCKWELL INTERNATIONAL CORPORATION, Respondent-Appellant. (And a Third-Party Action.)

Decided May 25, 1999.

Concur — Sullivan, J. P., Rosenberger, Tom and Wallach, JJ.

Plaintiff, then an employee of third-party defendant The New York Times (Times),^[*] sustained serious permanent injuries to his leg and back on July 21, 1989, when his trousers were caught by a tray on a conveyor for bundled newspapers at the Times's printing plant in Carlstadt, New Jersey. The conveyor track, which was moving at 250 feet per minute, pulled plaintiff into the press machinery. The accident happened because the Times had removed the protective metal guards with which the machine was originally designed, manufactured and installed. The absence of a barrier between the worker and the fast-moving track made it possible for plaintiff's clothes to snag on one of the connected trays that made up the track of the conveyor belt.

At the time of the accident, there were three such conveyor machines in the room where plaintiff was working. They were known as Loop A, Loop B and Loop C. Each was rectangular in shape and between 250 and 300 feet long. Plaintiff was injured on Loop B. Loops A, B and C were manufactured and installed in the late 1970s (1976, 1977 and 1978, respectively) by the Sta-Hi Systems Division of Sun Chemical Company (Sun), subsequently known as the Sequa Corporation. Defendant Rockwell bought the Sta-Hi Division from Sun in 1978. As originally manufactured, Loop B included guard fences on each side along the entire length of the track. These guards were about one foot high and made of diamond-shaped metal mesh grid welded onto the machine. The openings were made too small for workers' clothing or body parts to slip through.

Though aware that the purpose of the guard fence was to protect workers from coming into contact with the track for safety reasons, the Times removed a section of the guard in 1978 or 1979 to alleviate a jamming problem near one of the bundle entry devices. Initially, it replaced the original guard with three horizontal steel bars, but at some point prior to plaintiff's accident (apparently around 1984), the Times even took this makeshift barrier down and left this section of the track completely unshielded. Needless to say, this is where plaintiff's accident occurred.

Plaintiff could not sue the Times directly because the Workers' Compensation Law provides the exclusive remedy for workplace injury, including one caused by an employer's negligence. Therefore, plaintiff sought to hold Rockwell and related entities liable, based on an alleged failure to warn the Times of the danger of removing the safety guards. Following a verdict in plaintiff's favor, the trial court ordered a new trial on damages unless plaintiff stipulated to a reduced amount, and denied Rockwell's motion to set aside the verdict pursuant to CPLR 4404 (a). Plaintiff appeals from the court's ruling on damages and Rockwell cross-appeals from the denial of its motion for judgment notwithstanding the verdict or a new trial.

There is no doubt that plaintiff's accident was caused by negligence, but it was the negligence of his employer, not of Rockwell, whose connections to the altered machine were too attenuated to support liability under any of the theories presented by plaintiff. The common flaw in all of plaintiff's arguments is that plaintiff simply failed to prove that Rockwell had notice of the dangerous modification. A defendant can hardly have a duty to warn about a hazard of which it is unaware (see, Schumacher v Richards Shear Co., 59 NY2d 239, 249). "Unfortunately, as this case bears out, it may often be that an injured party, because of the exclusivity of workers' compensation, is barred from commencing an action against the one who exposes him to unreasonable peril by affirmatively rendering a safe product dangerous. However, that an employee may have no remedy in tort against his employer gives the courts no license to thrust upon a third-party manufacturer a duty to insure that its product will not be abused or that its safety features will be callously altered by a purchaser" (Robinson v Reed-Prentice Div., 49 NY2d 471, 481).

Rockwell cannot be held liable simply because it is a successor to the corporation that manufactured the Loop B conveyor. Successor liability is premised on the successor corporation's superior knowledge of the risk of personal injury created by operating the machine without proper safeguards. As the buyer of the manufacturer's assets, the successor is expected to be familiar with the product (Schumacher v Richards Shear Co., supra, at 243). Here, however, the dangerous condition arose after the product left the manufacturer, due to its modification by the Times. Nor is this a case where the buyer's potentially unsafe modification was foreseeable because the safety feature was designed to be removable (compare, Lopez v Precision Papers, 67 NY2d 871, 873). Testimony at trial established that the original metal mesh safety guard was welded onto the machine and required substantial effort to remove (see, Liriano v Hobart Corp., 92 NY2d 232, 241 [noting that "a safety device built into the integrated final product is often the most effective way to communicate that operation of the product without the device is hazardous"]).

Since Rockwell's notice of the modification could not be presumed based on its predecessor's manufacture of the conveyor, a duty to warn the Times could only be...