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Passante v. Agway Consumer Products3/15/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is reversed on the law without costs, the motion is granted and the amended complaint against defendant Mullen Industrial Handling Corp. is dismissed.
Memorandum: Supreme Court erred in denying the motion of defendant Mullen Industrial Handling Corp. (Mullen) seeking summary judgment dismissing the amended complaint against it. Samuel Passante (plaintiff) was injured while operating a dock leveler purchased from Mullen by plaintiff's employer, defendant Agway Consumer Products, Inc., d/b/a G & P Fresh Pac (G & P). Upon observing a tractor trailer back into the loading dock, plaintiff engaged the dock leveler in order to create a "bridge" between the loading dock and the floor of the trailer. He then stood on the platform in order to lower the platform of the dock leveler to the level of the truck. In order to exert enough force to lower the platform, plaintiff, who then weighed approximately 140 to 145 pounds, stepped onto the lip of the platform. The truck pulled forward and the lip returned to a vertical position, causing plaintiff to fall.
(*2) We conclude that Mullen established its entitlement to judgment dismissing the claim that the dock leveler was defectively designed because it lacked standard safety equipment. "The product is not defective where the evidence and reasonable inferences therefrom show that: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product. In such a case, the buyer, not the manufacturer, is in the superior position to make the risk-utility assessment, and a well- considered decision by the buyer to dispense with the optional safety equipment will excuse the manufacturer from liability" (Scarangella v Thomas Built Buses, 93 NY2d 655, 661).
Here, Mullen met its initial burden with respect to the defective design claim and plaintiffs failed to raise a triable issue of fact (see Geddes v Crown Equip. Corp., 273 AD2d 904). The facility manager responsible for purchasing the dock leveler system testified at his deposition that the optional safety equipment was not practical for use at the G & P facility. Furthermore, G & P's policy required that the wheels of the tractor trailer be "chocked" to prevent it from moving before the dock leveler was operated, and both the driver of the tractor trailer and plaintiff admitted that they were aware of the policy.
Plaintiff believed, however, that the tractor trailer had been turned off and, because of the slope of the area, believed it could not roll away and therefore did not check to determine whether the wheels were chocked. In fact, the driver backed into the loading dock but decided to adjust the angle of the trailer and pulled away from the loading dock, unaware that plaintiff had engaged the dock leveler. The driver did not turn off the tractor trailer and had not chocked the wheels prior to pulling away from the loading dock. We conclude that Mullen established that G & P was in the best position to know whether it needed the optional safety equipment (see Scarangella, 93 NY2d at 661), and plaintiffs failed to
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