McCarthy v. HandelMcCarthy v. Handel
Plaintiff Nancy McCarthy (hereinafter plaintiff) and her husband, derivatively, commenced this action following a February 1987 snowmobiling accident in which plaintiff struck a tree and was injured. Plaintiff was operating a snowmobile rented from defendant Roy Handel, then age 25, who had created a course and was conducting a snowmobile rental business on undeveloped land in the Town of Durham, Greene County, which was owned by his mother, defendant Virginia Handel. Virginia Handel and defendant Robert Handel jointly owned the property adjacent to this land, on which their home was located and where they operated a seasonal horseback riding business through a corporation solely owned by them, defendant Tanglewood Ranch Inc. Plaintiffs alleged that Roy Handel, Robert Handel, Virginia Handel and Tanglewood had
Following joinder of issue and some discovery, the parties made various motions regarding expert witness disclosure, resulting in three pretrial orders between 1995 and 1998 by Supreme Court (Cobb, J.), the final of which limited plaintiffs’ expert witness testimony concerning plaintiffs’ product liability claims (i.e., failure to warn and manufacturing and design defect claims) against Yamaha. At the close of plaintiffs’ case during the ensuing jury trial, plaintiffs abandoned their manufacturing defect and breach of warranty claims against Yamaha, and Supreme Court (Lalor, J.) dismissed the action against Tanglewood. At the close of proof, Supreme Court, inter alia, granted motions by Robert Handel and Virginia Handel (hereinafter collectively referred to as the Handels) to dismiss the case against them, and dismissed plaintiffs’ failure to warn claims. As a result, the only causes of action submitted to the jury were for Roy Handel’s negligence and defective design by Yamaha. Since Roy Handel had sold the snowmobile in issue for parts approximately a year after this accident and it could not be located, the jury was charged regarding spoliation. Plaintiffs’ theory at trial was that the snowmobile had malfunctioned in that the brakes failed or the throttle stuck, whereas defendants asserted that plaintiff had confused the throttle lever for the brakes, causing the accident. The jury returned a verdict finding plaintiff 70% negligent and Roy Handel 30% negligent and dismissing the remaining claim against Yamaha.
Plaintiffs appeal contending that Supreme Court erred in dismissing the case against the Handels and Tanglewood and challenging the court’s pretrial orders limiting the testimony of plaintiffs’ experts. They also allege error in the court’s rulings precluding certain expert testimony and other evidence. We affirm.
Viewing the evidence adduced at trial in the light most favorable to plaintiffs, as we must (see, CPLR 4401; Butler v New York State Olympic Regional Dev. Auth.,
Likewise, Supreme Court properly dismissed plaintiffs’ claims with regard to Tanglewood, a corporation jointly owned by the Handels through which they ran their horseback riding business on their adjacent land. Significantly, Tanglewood did not own and had no involvement in or control of any type over the property or Roy Handel’s snowmobile rental business. The sole evidence on which plaintiffs relied to impose liability on Tanglewood was a Greene County travel guide listing snowmobile rentals a.t a scenic mountain trail “[n]ext to Tanglewood Ranch” and listing the Handels’ home phone number, a number which was also used for Tanglewood and for Roy Handel, who lived with his parents at the time and shared their phone. Although Roy Handel admitted that he had distributed his own circulars advertising his snowmobile rental business described as located “next to Tanglewood Ranch,” neither he nor his parents had requested that his business be listed in the snowmobile section of the travel guide. This scant evidence utterly failed to provide any basis upon which to impose a duty on Tanglewood.
Turning to Virginia Handel, the sole owner of the property on which Roy Handel operated the snowmobile rental business, plaintiffs’ negligence claim was premised on allowing Roy Handel to conduct this business on her property without ensuring that the course was properly designed and that the machines worked properly. Virginia Handel testified that while she was aware that her son was renting out snowmobiles on the site, he had not asked permission to do so;
Plaintiffs conceded at trial that there was no defective condition in the property (see, PJI3d 2:91 [2002]), and Supreme Court properly ruled that Virginia Handel’s acquiescence in her son’s operation of this rental operation on land to which she was proven to be the title holder was insufficient to impose a duty on her to plaintiffs (see, Cavanaugh v Knights of Columbus Council 4360, supra at 204; Fessler v Brunza,
The balance of plaintiffs’ appellate contentions concern the pretrial and trial rulings regarding the scope of plaintiffs’ expert testimony and proof, which they claim, inter alia, contributed to the jury’s rejection of their design defect claim against Yamaha. To the extent that plaintiffs challenge the January 1998 order of Supreme Court (Cobb, J.) limiting plaintiffs’ expert witness testimony, we discern no abuse of discretion or basis upon which to disturb that ruling where plaintiffs had been twice warned that their responses to Yamaha’s expert demands were inadequate and would result in preclusion unless plaintiffs complied (see, Andon v 302-304 Mott St. Assoc.,
Next, while Supreme Court may arguably have implicitly employed, in part, the scientific reliability test (see, Daubert v Merrell Dow Pharms.,
Likewise without merit is plaintiffs’ claim that Supreme Court erred in excluding testimony by their expert regarding three patents which plaintiffs argued reflected alternative, safer throttle designs available to Yamaha when it manufactured the subject snowmobile in 1978, and in excluding evidence of postmanufacture, preaccident modifications. The court reminded plaintiffs that the pretrial preclusion order forbade their expert from testifying that the absence of an available alternative throttle safety mechanism constituted a defect, but nevertheless entertained an offer of proof addressed to the admissibility of the patents to show the feasibility in 1978 of alternate throttle designs, 1978 being the year when the snowmobile in issue was manufactured. The court thereafter prohibited testimony regarding three of the patents, ruling that (1) the patent issued in November 1977 was published too late for incorporation into a machine manufactured in 1978, (2) with regard to the two patents issued earlier, in 1974 and 1975, plaintiffs had failed to demonstrate that their designs were state of the art or feasible at the time this snowmobile was manufactured, and (3) none of the three patents had been previously disclosed under CPLR 3101 (d). The court did allow testimony regarding Yamaha’s patent, applied for in 1976, to show its design choice, despite plaintiffs’ lack of disclosure. The court also precluded evidence of Yamaha’s postmanufacture, preaccident design changes based upon plaintiffs’ failure to show their feasibility in 1978 or the applicability of this evidence to the failure to warn claim.
We perceive no error in these rulings and plaintiffs fail to identify any. Here, the gist of plaintiffs’ claims against Yamaha were that the snowmobile was defectively designed — indeed, plaintiffs abandoned their manufacturing defect and breach of warranty claims against Yamaha at the close of their proof. Plaintiffs’ offer of proof regarding alternative design options and the evidence of the postmanufacture, preaccident modification failed to establish either their feasibility in 1978 or the
We have considered plaintiffs’ remaining contentions and determine that they lack merit.
Her cure, J.P., Crew III, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.
Notes
. Indeed, the Handel family had mistakenly believed that Robert Handel and not Virginia Handel owned the subject property.
. The parties did not raise any issue with respect to General Obligations Law § 9-103, the recreational use statute, as to whether Virginia Handel owed a duty to keep her property safe for snowmobilers, where she received no compensation for their use of her land (see, e.g., Dean v Glens Falls Country Club,