         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1075
CA 11-00786
PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.


CARL L. FISHER, AS POWER OF ATTORNEY FOR
JOHN C. FISHER, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

KENNETH FLANIGAN, ET AL., DEFENDANTS,
AND DAMON CORPORATION,
DEFENDANT-APPELLANT-RESPONDENT.


BURDEN, GULISANO & HICKEY, LLC, BUFFALO (PHILIP M. GULISANO OF
COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

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


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Gerald J. Whalen, J.), entered July 13, 2010 in a personal
injury action. The order, among other things, granted in part and
denied in part the motion of defendant Damon Corporation for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion of defendant
Damon Corporation in its entirety and dismissing the amended complaint
and cross claim against it and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff, as power of attorney for John C. Fisher
(Fisher), commenced this action alleging, inter alia, that defendant
Damon Corporation (Damon) is liable for the injuries sustained by
Fisher when he fell while he was walking in a motor home manufactured
by Damon. The motor home was in motion at the time of the fall, and
was being driven by defendant Kenneth Flanigan. Damon moved for
summary judgment dismissing the amended complaint and all cross claims
against it. Supreme Court denied that part of the motion with respect
to the strict products liability cause of action for failure to warn
passengers to remain seated and granted that part of the motion with
respect to the design defect cause of action. We note that, although
the court did not address that part of the motion with respect to the
cross claim for contribution or indemnification, the failure to rule
on that part of the motion is deemed a denial thereof (see Brown v
U.S. Vanadium Corp., 198 AD2d 863). This appeal by Damon and cross
appeal by plaintiff ensued. We agree with Damon that the court should
have granted the motion in its entirety, and we therefore modify the
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                                                         CA 11-00786

order accordingly.

     With respect to the strict products liability cause of action for
failure to warn, we conclude that Damon established its entitlement to
judgment as a matter of law and that plaintiff failed to raise an
issue of fact sufficient to defeat the motion (see generally Zuckerman
v City of New York, 49 NY2d 557, 562). It is well established that
“[a] manufacturer . . . has a duty to warn of the danger of unintended
uses of a product provided these uses are reasonably foreseeable”
(Liriano v Hobart Corp., 92 NY2d 232, 237). However, “in appropriate
cases, courts could as a matter of law decide that a manufacturer’s
warning would have been superfluous given an injured party’s actual
knowledge of the specific hazard that caused the injury” (id. at 241).
Here, Damon established that the risk of falling while moving about in
a moving vehicle is open and obvious. Although the issue whether a
particular risk is open and obvious is “most often a jury question[,]
. . . [w]here only one conclusion can be drawn from the established
facts, . . . the issue of whether the risk was open and obvious may be
determined by the court as a matter of law” (id. at 242). Fisher
testified at his deposition that he had experience traveling in a bus
and subway and knew that there was a risk of falling while the bus and
subway were in motion. We thus further conclude that Damon
established that “a warning would have added nothing to [Fisher’s]
appreciation of the danger,” thereby obviating the requirement of a
duty to warn (id.). Neither Fisher’s affidavit in opposition to the
motion nor the expert affidavits raised an issue of fact sufficient to
defeat the motion. Although Fisher stated in his opposing affidavit
that he thought it was “customary and acceptable to move about” a
motor home and that he would not have done so had there been a warning
does not negate his acknowledgment of the open and obvious danger of
standing in a moving vehicle set forth in his deposition testimony.
One of plaintiff’s experts does not dispute that the risk of falling
in a motor vehicle is open and obvious, but he instead asserts that a
warning against the open and obvious risk was necessary because the
“visual cues promote a sense of safety.” Plaintiff’s second expert
makes only a conclusory statement that Damon should have provided
notices to passengers not to leave their seats if that was Damon’s
intention while the motor home was in motion.

     With respect to the design defect cause of action, we note that,
“[w]hile the focus of a design-defect claim . . . is the product’s
fitness for intended uses . . ., the focus of a failure to warn claim
. . . is whether there has been a breach of the manufacturer’s duty to
warn consumers against using the product for unintended but
foreseeable purposes” (Amatulli v Delhi Constr. Corp., 77 NY2d 525,
537 [Titone, J., dissenting in part and concurring in part]). We
conclude that Damon established as a matter of law that the motor home
was designed so that it was reasonably safe for its intended use.
“[T]he validity of a design-defect claim should be assessed by
reference to the configuration of the product ‘as of the time [it]
leaves the manufacturer’s hands’ ” (id.; see generally Adams v Genie
Indus., Inc., 14 NY3d 535, 542). According to the deposition
testimony of Damon’s employees, certain seats were equipped with seat
belts in conformance with federal regulations and the motor home
                                 -3-                          1075
                                                         CA 11-00786

complied with all applicable regulations and industry standards when
it was manufactured in 1998. Further, the owner’s manual advised the
owner that passengers should remain seated and restrained by a seat
belt while the motor home was in motion. Damon further established
that the alleged safety devices proposed by plaintiff’s experts, i.e.,
devices to grasp when standing or walking and an auditory system
warning that the vehicle is changing speed or direction, are not
provided for in the regulations or industry standards and have not
been used in the motor home industry from 1998 through the present
time. We conclude that plaintiff failed to raise an issue of fact
whether the motor home was reasonably safe for its intended use (see
generally Zuckerman, 49 NY2d at 562). Instead, each of plaintiff’s
experts merely expressed the conclusory opinion that, because Damon
was aware that passengers might not remain seated while the vehicle
was in motion, safety devices should have been installed.

     Finally, in view of our determination with respect to the amended
complaint against Damon, we further conclude that Damon’s motion with
respect to the cross claim should have been granted as well.




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
