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

209
CA 15-00453
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, AND SCUDDER, JJ.


CHARLES TERWILLIGER AND HELEN TERWILLIGER,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

MAX CO., LTD., MAX USA CORP.,
DEFENDANTS-APPELLANTS-RESPONDENTS,
AND NUMAX, INC., DEFENDANT.
(APPEAL NO. 1.)


GOLDBERG SEGALLA, LLP, BUFFALO (JOHN P. FREEDENBERG OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

PAUL WILLIAM BELTZ, P.C., BUFFALO (ANNE B. RIMMLER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT CHARLES TERWILLIGER.

LAW OFFICES OF RICHARD S. BINKO, CHEEKTOWAGA (RICHARD S. BINKO OF
COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT HELEN TERWILLIGER.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Patrick H. NeMoyer, J.), entered November 12, 2014. The
order, inter alia, granted in part and denied in part the motion of
defendants for summary judgment.

     It is hereby ORDERED that said cross appeal from the order
insofar as it granted that part of defendants’ motion with respect to
the claim for breach of implied warranty of merchantability/fitness
for ordinary purposes is unanimously dismissed (see Loafin’ Tree Rest.
v Pardi [appeal No. 1], 162 AD2d 985, 985) and the order is affirmed
without costs.

     Memorandum: Plaintiffs commenced this action alleging, inter
alia, strict products liability and seeking damages for injuries
sustained by Charles Terwilliger (plaintiff), an employee of HMT
Enterprises Unlimited (HMT), a company owned by his wife, plaintiff
Helen Terwilliger. Plaintiff was injured when a pneumatic nail gun
used by another HMT employee accidentally came into contact with
plaintiff’s head and fired a three-inch nail into his skull and brain.
The nail gun was manufactured by defendant MAX Co., Ltd. and
distributed by defendant MAX USA Corp. (MAX defendants), and was sold
by defendant Numax, Inc. By the order in appeal No. 1, Supreme Court
granted in part the motion of defendants seeking summary judgment
dismissing the complaint by dismissing the first and second causes of
action to the extent that they allege failure to warn, and the third
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                                                         CA 15-00453

cause of action, for breach of express and implied warranty for both
ordinary purposes and a specific purpose. The court denied the motion
insofar as defendants sought summary judgment dismissing the first and
second causes of action to the extent that they allege design defect.
The MAX defendants appeal and plaintiffs cross-appeal from that order.
In appeal No. 2, defendants appeal from an order that, inter alia,
granted only those parts of plaintiffs’ motions for leave to reargue
defendants’ motion with respect to the claim for breach of the
“implied warranty of merchantability/fitness for ordinary purposes,”
and reinstated the third cause of action to that extent. We affirm
the orders in both appeal Nos. 1 and 2.

     It is undisputed that the subject nail gun operates in two ways:
by the contact trip, also called the “bump” mode, in which the
operator holds the depressed trigger and the nails are fired each time
the contact arm touches the work surface; and by the “sequential fire”
mode, in which the nail is fired after the contact arm touches the
work surface and the trigger is pulled, firing one nail each time that
process is repeated. Plaintiffs allege that the design of the nail
gun is defective because it is equipped with the bump mode, rather
than with only the sequential fire mode; and that the sequence of
trigger activation, which determines the mode of operation, causes
operator confusion as to which mode of operation is in use, which they
allege happened here. As relevant herein, they also allege liability
under the theories of failure to warn, design defect and breach of
express and implied warranties for ordinary purposes and for a
specific purpose.

     Defendants sought summary judgment dismissing the complaint on
the grounds that the dual function of the nail gun meets the
applicable standards approved by the American National Standard for
Power Tools (ANSI); that the warnings were appropriate; and that, in
any event, the employee had extensive experience in the use of nail
guns and thus there was no causal connection between the employee’s
alleged lack of warning information and the accident. Although
defendants failed to establish that HMT received the manual for the
two nail guns it acquired, which contained the instruction that the
operator was not to touch the trigger unless he/she intended to drive
a fastener, it is undisputed that a warning on the nail gun is the
recommended ANSI warning to, inter alia, “Keep fingers AWAY from
trigger when not driving fasteners to avoid accidental firing.”

     “Generally, the adequacy of the warning in a products liability
case based on failure to warn is, in all but the most unusual
circumstances, a question of fact to be determined at trial” (Johnson
v Delta Intl. Mach. Corp., 60 AD3d 1307, 1309 [internal quotation
marks omitted]). Here, however, defendants established that the
employee had used nail guns for approximately five years prior to the
accident and that he was aware of the specific hazard that caused
plaintiff’s injury, i.e., that the nail gun would fire a nail if the
contact arm touched something while the trigger was depressed. Thus,
defendants established as a matter of law that “any warning would have
been superfluous” with respect to the employee (Wesp v Carl Zeiss,
Inc., 11 AD3d 965, 968; see Call v Banner Metals, Inc., 45 AD3d 1470,
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                                                         CA 15-00453

1471). We therefore reject plaintiffs’ contention on their cross
appeal in appeal No. 1 that the court erred in granting that part of
defendants’ motion with respect to the claims for failure to warn. We
also reject plaintiffs’ contention that the court erred in granting
that part of defendants’ motion with respect to the claim for breach
of an implied warranty for a specific purpose in the third cause of
action. Defendants established as a matter of law that HMT did not
seek to use the nail gun in a way other than for its ordinary purposes
(cf. Simmons v Washing Equip. Tech., 78 AD3d 1645, 1646), and
plaintiffs failed to raise an issue of fact (see generally Zuckerman v
City of New York, 49 NY2d 557, 562).

     We next address the appeal of the MAX defendants from the order
in appeal No. 1. We conclude that, with respect to plaintiffs’ claims
for design defect, defendants met their initial burden of establishing
that the nail gun was reasonably safe. Their expert engineer
explained, inter alia, that the nail gun complied with industry
standards set forth by ANSI, and opined that providing only one method
of operation would reduce the functional utility of the nail gun (see
Wesp, 11 AD3d at 967; cf. Chamberlain v MAC Trailer Mfg., Inc., 128
AD3d 1336, 1337-1338).

     We further conclude, however, that plaintiffs raised an issue of
fact sufficient to defeat the motion with the affidavit of their
expert professional engineer. Plaintiffs’ expert opined to a
reasonable degree of engineering certainty that the nail gun is
defective “because it did not have[,] as a sole means of actuation, a
full sequential trip trigger” and instead also provided for the option
for a “contact trip” or a bump trigger. The expert explained that the
center of gravity of the nail gun causes the operator to maintain a
finger on the trigger when lowering the nine-pound gun, as was the
case here; that the sequence of the use of the trigger to determine
the mode of operation causes operator confusion as to which mode of
operation is in use, which he opined happened here based upon the
testimony of the employee that he thought the nail gun was in
sequential fire mode; that government safety studies he reviewed found
a much higher rate of injury when the nail gun was in the bump mode;
and that tests he performed and studies he reviewed established that
the utility of the bump mode does not outweigh the danger of its use
because it is “only 10% faster” than the sequential fire mode (see
Schneider v Verson Allsteel Press Co., 236 AD2d 806, 806; cf.
Rutherford v Signode Corp., 11 AD3d 922, 923, lv denied 4 NY3d 702).
“ ‘Where, as here, a qualified expert opines that a particular product
is defective or dangerous, describes why it is dangerous, explains how
it can be made safer, and concludes that it is feasible to do so, it
is usually for the jury to make the required risk-utility analysis’ ”
(Pierre-Louis v DeLonghi Am., Inc., 66 AD3d 859, 861-862).

     Contrary to the further contention of the MAX defendants,
defendants failed to establish that HMT was aware that a safety
trigger was available that would restrict the use of the nail gun to a
sequential fire mode. They therefore failed to establish that they
are relieved from liability for design defect on the ground that HMT
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                                                         CA 15-00453

was in a position to “balance the benefits and the risks of not having
the safety device” (Scarangella v Thomas Built Buses, 93 NY2d 655,
661; see Campbell v International Truck & Engine Corp., 32 AD3d 1184,
1185).

     We reject defendants’ contention in appeal No. 2 that the court
erred in reinstating the claim for breach of implied warranty for
ordinary purposes inasmuch as that claim and the claims for design
defect are based on largely identical evidence (see Fritz v White
Consol. Indus., 306 AD2d 896, 897-898; cf. Wesp, 11 AD3d at 967-968;
see generally Denny v Ford Motor Co., 87 NY2d 248, 254-263, rearg
denied 87 NY2d 969).




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
