        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1043
CA 12-00002
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


LORI HOOVER, PLAINTIFF-RESPONDENT,
AND JESSICA BOWERS,
PLAINTIFF-RESPONDENT-APPELLANT,

                     V                             MEMORANDUM AND ORDER

NEW HOLLAND NORTH AMERICA, INC., FORMERLY
KNOWN AS FORD NEW HOLLAND, INC., CASE NEW
HOLLAND, INC., NIAGARA FRONTIER EQUIPMENT
SALES, INC., FORMERLY KNOWN AS NIAGARA
FORD NEW HOLLAND, INC.,
DEFENDANTS-APPELLANTS-RESPONDENTS,
ET AL., DEFENDANTS.
-----------------------------------------
CNH AMERICA LLC, THIRD-PARTY
PLAINTIFF-APPELLANT,

                     V

KYLE P. ANDREWS, TREASURER OF NIAGARA
COUNTY, AS TEMPORARY ADMINISTRATOR FOR
THE ESTATE OF GARY HOOVER, DECEASED,
THIRD-PARTY DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


PHILLIPS LYTLE LLP, BUFFALO (PAUL F. JONES OF COUNSEL), AND NIXON
PEABODY LLP, FOR DEFENDANTS-APPELLANTS-RESPONDENTS AND THIRD-PARTY
PLAINTIFF-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT AND PLAINTIFF-RESPONDENT-APPELLANT.

AUGELLO & MATTELIANO, LLP, BUFFALO (JOSEPH A. MATTELIANO OF COUNSEL),
FOR THIRD-PARTY DEFENDANT-RESPONDENT.


     Appeal and cross appeal from a judgment of the Supreme Court,
Niagara County (Richard C. Kloch, Sr., A.J.), entered September 30,
2011. The judgment, inter alia, awarded plaintiff Jessica Bowers
money damages upon a jury verdict.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum:   CNH America LLC (incorrectly sued as New Holland
                                 -2-                          1043
                                                         CA 12-00002

North America, Inc., formerly known as Ford New Holland, Inc. and Case
New Holland, Inc.) and Niagara Frontier Equipment Sales, Inc.,
formerly known as Niagara Ford New Holland, Inc. (defendants) appeal
and Jessica Bowers (plaintiff) cross-appeals from a judgment entered
following a jury trial on liability and damages in this products
liability action. On October 2, 2004, Gary Hoover (Gary) was using a
tractor-driven post hole digger (digger) owned by Peter Smith. Gary
was assisted by his wife, former plaintiff Lori Hoover (Lori), who set
the auger so that a straight hole would be dug. When Lori left for
work, plaintiff, who was then 16 years old, began performing the same
task. While Gary was operating the digger, plaintiff’s coat became
caught in the driveline that connected the tractor’s power take off
with the digger. Plaintiff was violently dragged into the driveline,
and her right arm was severed above the elbow. Smith had removed a
plastic shield that covered the area of the driveline near the gearbox
after the shield had become damaged beyond repair during use. The
shield had covered, inter alia, a bolt that protruded from the
driveline. Defendants contend on their appeal that they were entitled
to judgment as a matter of law and that Supreme Court therefore erred
in denying their pretrial motion for summary judgment dismissing the
amended complaint against them, their motion for a directed verdict
during trial, and their posttrial motion for judgment notwithstanding
the verdict or an order setting aside the verdict as against the
weight of the evidence. They contend in the alternative that the
court erred in denying their posttrial motion to the extent that they
sought an order striking the award of damages for past lost wages and
a reduction in other categories of damages. Plaintiff contends on her
cross appeal that the court erred in denying her posttrial motion to
increase the award of damages for past pain and suffering. We affirm.

     “ ‘In order to establish a prima facie case in strict products
liability for design defects, the plaintiff must show that the
manufacturer breached its duty to market safe products when it
marketed a product designed so that it was not reasonably safe and
that the defective design was a substantial factor in causing
plaintiff’s injury’ ” (Adams v Genie Indus., Inc., 14 NY3d 535, 542;
see Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106-107). “It is
well settled that a manufacturer, who has designed and produced a safe
product, will not be liable for injuries resulting from substantial
alterations or modifications of the product by a third party which
render the product defective or otherwise unsafe” (Amatulli v Delhi
Constr. Corp., 77 NY2d 525, 532), including “the material alteration
of a product that destroys the functional utility of a key safety
feature” (Bouter v Durand-Wayland, Inc., 221 AD2d 902, 902; see Felle
v W.W. Grainger, Inc., 302 AD2d 971, 972). However, a modification
will defeat a products liability claim only where it “(a) rendered ‘a
safe product defective’ . . . ; and (b) caused the injuries” (Lamey v
Foley, 188 AD2d 157, 168; see generally Robinson v Reed-Prentice Div.
of Package Mach. Co., 49 NY2d 471, 479).

     Assuming that defendants met their initial burden on their motion
for summary judgment dismissing the amended complaint against them, we
conclude on this record that plaintiffs submitted sufficient evidence
to defeat that motion and on their direct case at trial to make out a
                                 -3-                          1043
                                                         CA 12-00002

prima facie case of defective design of the digger. Specifically, the
proof was sufficient to establish that, inter alia, a protruding bolt
that attached the driveline to the gearbox was an entanglement hazard;
the plastic gearbox shield used to guard against the protruding bolt
could be damaged by normal use or foreseeable misuse of the digger;
and there were design alternatives that would have reduced or
eliminated the hazards in the subject product and would have resulted
in only a nominal increase in cost. Thus, plaintiffs presented
sufficient evidence that the digger was defectively designed, and we
further conclude that they presented sufficient evidence that Smith’s
removal of the damaged gearbox shield did not constitute a substantial
modification. We further reject defendants’ contentions that the
proof was insufficient to establish that the defective design of the
digger was a substantial factor in causing plaintiff’s injuries or
that an alternative design would have prevented the accident.
Likewise, the verdict was not against the weight of the evidence
because it cannot be said that the verdict could not have been reached
on any fair interpretation of the evidence (see Lolik v Big V
Supermarkets, 86 NY2d 744, 746; Campo v Neary, 52 AD3d 1194, 1197).

     As to the damages, we reject defendants’ contention that the jury
awards for past and future pain and suffering “deviate[] materially
from what would be reasonable compensation” (CPLR 5501 [c]; see
generally Caprara v Chrysler Corp., 52 NY2d 114, 126-127, rearg denied
52 NY2d 1073). We likewise reject plaintiff’s contention on her cross
appeal that the award for past pain and suffering was inadequate. We
further conclude that the awards for past and future lost wages and
future medical care are supported by legally sufficient evidence and,
contrary to defendants’ contentions, are not speculative (see Huff v
Rodriguez, 45 AD3d 1430, 1433; Kirschhoffer v Van Dyke, 173 AD2d 7, 9-
10). We have reviewed defendants’ remaining contentions and conclude
that they are without merit.




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
