Lopez v. Precision Papers, Inc. , 107 A.D.2d 667 ( 1985 )

— In an action to recover damages for personal injuries, etc., plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated May 5,1982, as granted the motion of defendant Clark Equipment Co., Inc., for summary judgment “to the extent that defendant, clark equipment co., has no liability for any claim * * * based solely upon the removal of the removable overhead safety guard from the forklift vehicle in question”, and defendant Clark Equipment Co. cross-appeals from so much of the same order as granted it only “partial” instead of full summary judgment.

Order modified by deleting the provisions granting defendant Clark Equipment Co.’s motion for summary judgment in part and substituting a provision denying said motion in toto. As so modified, order affirmed, insofar as appealed from, with costs to plaintiffs.

Plaintiff Pablo Lopez was an employee of third-party defendant Mutual Paper Co. On June 13, 1975, he was severely injured when a large roll of paper fell from a wooden pallet on a forklift machine he was operating within the warehouse and struck him on the head. As a result of the accident, Lopez was rendered a quadraplegic. He thereafter brought this action sounding in negligence, products liability, breach of warranty and medical malpractice. The latter claim, predicated on the theory that his injuries were aggravated by ambulance attendants, is not now before us.

The forklift on which Lopez was injured was owned by his employer and was manufactured by defendant Clark Equipment Co. (hereinafter Clark). The claim against the manufacturer is premised upon the theory that certain design defects allegedly exist in the forklift in question which violated regulations of the Occupational Safety and Health Administration. Specifically, three design defects are claimed, i.e., “(a) a non-welded, easily removable overhead guard; (b) the absence of a signal device that would indicate the weight of the load being raised or hazards to the vehicle and driver; and (c) the failure to provide guidelines and specifications for the design, construction and loading of pallets”.

Clark sought summary judgment dismissing the complaint and any cross claims asserted against it, claiming, inter alia, that the overhead guard on the forklift operated by Lopez at the time of the accident had been previously removed at the direction of, and by employees of, Mutual Paper Co. and that, in essence, Lopez was chargeable with contributory negligence as a matter of law (at the time of the accident contributory negligence was an absolute bar to recovery) because he allegedly violated a company rule which required that only trucks with overhead guards were to be used for movement of pallets inside the warehouse.

Special Term granted the motion in part by directing the entry of summary judgment, insofar as pertinent, “to the extent that defendant, clark equipment co., has no liability for any claim * * * based solely upon the removal of the removable overhead safety guard from the forklift in question”. The court reasoned that a manufacturer may not be held liable for the negligent alteration of the product by a user, even if the alteration is foreseeable. We find that Robinson v Reed-Prentice Div. (49 NY2d 471), the case relied upon by Special Term, does not, as a matter of law, bar plaintiffs’ claim on this issue.

The determination of whether a product is defectively designed involves a balancing test: the likelihood of harm must be weighed against the burden of taking precaution against that harm (see Cover v Cohen, 61 NY2d 261, 270; Voss v Black & Decker Mfg. Co., 59 NY2d 102, 109). The responsibility of the manufacturer to produce a product that is not defective is gauged as of the time the product leaves the manufacturer’s hands, so that “[sjubstantial modifications of a product from its original condition by a third party which render a safe product defective are not the responsibility of the manufacturer” (Robinson v Reed-Prentice Div., supra, p 479). The court in Robinson went on to explain (p 481) that “[mjaterial alterations at the hands of a third party which work a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature, however foreseeable that modification may have been, are not within the ambit of a manufacturer’s responsibility”.

In Robinson (supra), the modification was so substantial that it permanently destroyed the functional utility of a safety gate. Under no view of the facts could one conclude that that modification was intended either for versatility of functioning or for ease of cleaning. We believe that Robinson represents a sensible limitation on the scope of manufacturer liability lest a manufacturer be made an insurer against all injuries that might arise from the use or misuse of a product.

The facts here simply do not approach those of Robinson (supra; cf. Bolm v Triumph Corp., 71 AD2d 429, 435, mot for lv to app dsmd 50 NY2d 928; Jiminez v Dreis & Krump Mfg. Co., 736 F2d 51). Because of the ease with which the overhead guard could be removed and the forklift’s added versatility when operated without the guard, there is a legitimate jury question as to the scope of the forklift’s intended purposes (Voss v Black & Decker Mfg. Co., supra, p 109; Cepeda v Cumberland Eng. Co., 76 NJ 152; Jiminez v Dreis & Krump Mfg. Co., supra). In short, the jury must ascertain whether in light of these factors the manufacturer, given its resources and expertise, breached its duty by placing a product on the market that is not reasonably safe (see Finnegan v Havir Mfg. Corp., 60 NJ 413, 423; Jiminez v Dreis & Krump Mfg. Co., supra).

Finally, we note that the issue of contributory negligence is a jury question in all but the clearest cases (MacDowall v Koehring Basic Constr. Equip., 49 NY2d 824, 827; Wartels v County Asphalt, 29 NY2d 372). This is not such an exceptional case in which summary disposition is warranted.

Accordingly, the order appealed from should be modified to the extent specified above. Titone, J. P., Gibbons and O’Connor, JJ., concur.