In the summer of 1997, Walter Adams, a maintenance man, climbed into a personnel lift (a device which a basket into which a person enters and presses a button, which causes the basket to rise or lower depending upon the operator’s preference). After he had taken the basket to a height of approximately twelve feet, the lift tipped to one side and Adams fell from the basket. Adams later brought suit against Genie Industries, Inc., the designer, manufacturer, and seller of the lift at issue. Following a trial, a jury found that the lift had been defectively designed. Yesterday, nearly thirteen years after the accident at issue, the New York Court of Appeals, that state’s highest court, affirmed that verdict in Adams v. Genie Industries, Inc., No. 67, 2010 WL 1849325 (N.Y. May 11, 2010) [PDF].
The Plaintiff’s principal theory was that the lift at issue did not have interlocking outriggers. The device actually came with outriggers, but sometime between the purchase of the lift in 1986 and the accident in 1997, Plaintiff’s employer lost them. That didn’t affect Plaintiff’s employer’s use of the equipment, though, and the lift remained in service despite a warning on the equipment advising that “[a]ll outriggers must be installed before using.” Plaintiff theorized that the lift was unsafe because the outriggers at issue did not feature an interlocking mechanism, i.e. a device that would prevent the lift from being operated without the outriggers installed and in use.
The evidence clearly showed that the use of outriggers would have made the product safer. Expert testimony explained that outriggers would have expanded the product’s “footprint,” making it more stable by distributing its weight over a wider area. Indeed, Genie’s own label warned against using the product without outriggers. It is thus reasonable to conclude that an interlock, making use without outriggers impossible, would have increased the safety of the product.
Plaintiff also offered evidence from which a jury could find that, in 1986 when the product was sold, it was technologically possible, at minimal cost, to design the product with interlocked outriggers. A qualified expert so testified, and illustrated his point with a model that he had created of Genie’s machine, to which he had added a half dozen switches, of a kind available in the late 1980s for $20 to $25 each.
The court acknowledged Genie’s point that liability could not attach “merely on a showing that a safer product was theoretically possible at the time the machine was made.” However, the Court cited to testimony that a former Genie employee had specifically envisioned and discussed the possibility of interlocked outriggers in 1985, a year before the sale of the device at issue, and that he recalled thatGenie had obtained a competitor’s lift featuring interlocked outriggers in 1985, as well. Further, a Genie official had apparently secured company permission in 1985 to present the idea of interlocked outriggers before a safety panel in 1985 to an industry safety committee.
The court sustained Genie’s point of error that the trial court had erred in submitting to the jury the issue of its alleged negligence from 1986 to 1997 in failing to retrofit or recall the lift at issue. However, the court essentially punted on this issue, finding that the error was harmless.
In so doing, the Court remarked:
Our decisions make clear that, in general, the duty of the seller of a product who discovers, after the sale, risks that were not known beforehand is (sic) a duty to warn. In this case, there can be no successful claim that Genie breached any duty to warn, either pre-sale or post-sale. Supreme Court held, on a pretrial motion, that the warning contained in Genie’s product label was adequate, and that holding is not challenged here. We have never imposed a post-sale duty to recall or retrofit a product, and the facts of this case provide no justification for creating one. Thus the jury should not have been permitted to find that Genie was negligent in failing to recall or retrofit its product after the 1986 sale.
The trial court’s error in submitting this theory to the jury, however, had no impact on the outcome of the case. Plaintiff’s post-sale negligence claim, as presented at trial, was no more than a duplicate of his design defect and negligent design claims. Plaintiff presented no evidence of any facts that came to Genie’s attention after the sale that might have triggered a new duty; plaintiff merely asserted that Genie should have recalled or retrofitted the personnel lift for the same reasons that it should not have sold it in the first place-principally, because the outriggers were not interlocked. Genie points to no evidence admitted on the post-sale negligence claim that would have been inadmissible on the other claims, and identifies no way in which the court’s error in submitting one claim might have tainted the jury’s verdict on the others.
Id. (citations omitted).
It appears that there were a number of liability issues which were either not subject to the appeal or not discussed in meaningful detail by the Court. However, aside from a few brief statements, the court did not spend much time addressing the Plaintiff’s employer’s use of the lift in contravention of the warning and its admitted loss of the outriggers at issue. Further, there was no discussion of whether the accident at issue would have occurred had the originally included outriggers been present and installed on the lift at issue at the time of the accident. Had the Plaintiff, or his employer, used the product as intended or as contemplated by the warning on the face of the equipment, the accident may well have not occurred.
Certainly, between a lift with no outriggers of any kind, and a lift with interlocked outriggers, the latter may be safer than the former. But Genie did not sell a lift sans outriggers in 1986; it sold one with them, albeit non-interlocked. But in losing the outriggers, Plaintiff’s employer made the device less safe, yet continued to use it, presumably for some time. What of that? Should Genie be responsible for a Plaintiff’s employer’s modification of the device? Should it be responsible for the device being made less safe by such an alteration? If the device is made less safe by a third party, is it that less-safe device the standard that shall be judged, or the device as it was sold?