93 A.D.2d 990 | N.Y. App. Div. | 1983
Lead Opinion
— Judgment reversed, on the law and facts, without costs, complaint dismissed against defendant General Cable Corporation and new trial granted against Niagara Mohawk Power Corporation. Memorandum: The defendants and the third-party defendant appeal from a judgment entered upon a jury verdict
Dissenting Opinion
I concur that there must be a new trial because of the erroneous charge herein but do not agree that plaintiff has failed to prove his cause of action against the defendant General Cable Corporation. In this case, the manufacturer’s liability is determined by the traditional reasonable man test used in negligence actions (Martin v Dierck Equip. Co., 43 NY2d 583, 590; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 387; Bolm v Triumph Corp., 33 NY2d 151, 158-159; Biss v Tenneco, Inc., 64 AD2d 204, 205-207). The majority acknowledge that plaintiff’s expert, an electrical engineer, testified that the tool tray should have been designed so that the metal tool used by the telephone company did not project out of the bucket. A manufacturer is obligated to exercise that degree of care in planning or designing products so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when that product is put to its intended or reasonably foreseeable use. The courts typically have held it to be a question of fact whether, under the particular circumstances presented, the manufacturer should have foreseen the dangerous aspects of its products when used in an intended manner. This question was presented to the jury. It is not for the majority to substitute their judgment for that of the jury on this issue. Plaintiff was using this equipment on the job. The metal tool regularly used by the telephone company was in the tool tray and it is generally acknowledged that it was this tool that came in contact with the high voltage power line causing serious injury to plaintiff then in the uninsulated bucket of the lift designed by defendant General Cable Corporation. The lift designed for use by the telephone company was being utilized by plaintiff in its intended use. It is foreseeable that this equipment would be used near power lines on poles shared by both companies. This is not a unique or isolated situation. I see no reason, therefore, why the complaint should be dismissed against this defendant. (Appeal from judgment of Supreme Court, Onondaga County, Inglehart, J. — negligence.) Present — Dillon, P. J., Callahan, Denman, Boomer and Moule, JJ.