Alvarado v. Otto Martin Maschinebau Gmbh & Co.Alvarado v. Otto Martin Maschinebau Gmbh & Co.
Lead Opinion
—In an action to recover damages for personal injuries, the defendant Otto Martin Masсhinebau Gmbh & Co., appeals from an order of the Supreme Court,
Ordered that the order is reversed, on the law, with costs, the motion by the defendant Otto Martin Maschinebau Gmbh & Co. is granted, and the complaint is dismissed insofar as asserted against it.
Thе plaintiff was allegedly injured while operating a power table saw manufactured by the defendant Otto Martin Maschinebau Gmbh & Co. (hereinafter Martin). The plaintiff testified at an examination before trial that he was feeding a piece of plywood into the saw when the woоd "kicked back” and struck him in the chest, causing him to lose consciousness and fall onto the blаde. The plaintiff sustained injuries to his right hand. When the saw was shipped to the plaintiff’s employer, it was equipped with a parallelogram saw guard and a splitting wedge to which an antikickbaсk finger was fastened. These devices were not present on the saw when the accidеnt occurred.
The Supreme Court denied Martin’s motion for summary judgment, concluding that issues of fact existed with respect to the plaintiff’s assertions that (1) the saw was defectively designed, and (2) the saw was manufactured with attached but removable safety devices. We reverse.
We hаve recently observed that "[a] manufacturer may not be cast in damages, either on а strict products liability or negligence cause of action, where, after the produсt leaves the possession and control of the manufacturer, there is a subsequent modification which 'substantially alters the product and is the proximate cause of the plaintiff’s injuries’ ” (Wyda v Makita Elec. Works,
Martin’s moving papers demonstrated that the saw in question was shipped with the requisite safety devices, but that these devices had been removed by the time the plaintiff’s accident oсcurred (see, Robinson v Reed-Prentice Div., supra). The plaintiff’s opposing papers failed to create triable issues of fact with respect to the claim that the absent safety devices had been designed to bе removed and the saw itself was designed to be operable without those devices in place (see, Wyda v Makita Elec. Works, supra; cf., Lopez v Precision Papers,
We have reviewed the plaintiff’s remaining contentions and
Dissenting Opinion
dissents and votes to affirm the order appealed from, with the following memorandum: I do not agree with my colleagues that the defendant manufacturer Otto Martin Maschinebau Gmbh & Co. (hereinafter Martin) established as a matter of law that it cannot be held liable for the plaintiffs injuries. Martin presented evidence that the power table saw invоlved in this accident, which was manufactured in Germany, was shipped with certain safety devicеs. However, it is clear from the record that those devices were not in place whеn the accident occurred. A manufacturer is not responsible for a defective product if material alterations were made to the product by a third party after its delivery which "destroy[ed] the functional utility of a key safety feature” (see, Robinson v Reed-Prentice Div.,
Martin failed to present any proof that the saw was manufactured with the intent that the safety features remain in place during its use. Although Martin’s expert described the safety features which were shipped with the saw, he never asserted that the removal of such features would require a material alteration of the saw. In fact, the exрert indicated that one safety device, the "antikickback finger”, was attached by a single screw (see, e.g., Tuesca v Rando Mach. Corp.,