Oliver v. NAMCO Controls, an Acme Cleveland Co.

Order reversed on the law without costs and defendant namco Controls’ motion for summary judgment denied. Memorandum: Supreme Court erred in granting defendant namco’s motion for summary judgment to the extent of dismissing plaintiff’s complaint alleging liability for failure to [1189] warn. The manufacturer of a product has a duty to provide instructions and warnings on its proper and safe use (McLaughlin v Mine Safety Appliances Co., 11 NY2d 62; Ciampichini v Ring Bros., 40 AD2d 289). The duty extends to persons exposed to a foreseeable and reasonable risk of harm by the failure to warn (Howard Stores Corp. v Pope, 1 NY2d 110, mot to amend remittitur denied 1 NY2d 806). The instructions or warnings must alert the user to avoid unsafe uses of the product which would otherwise appear to be normal and reasonable (Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55). The adequacy of the instruction or warning is generally a question of fact to be determined at trial (Tucci v Bossert, 53 AD2d 291) and is not ordinarily susceptible to the drastic remedy of summary judgment (see, Ugarriza v Schmieder, 46 NY2d 471). Here, plaintiff was injured when molten metal extruded from a die-casting machine and struck him. Plaintiff’s employer, third-party defendant Doehler-Jarvis, incorporated limit switches manufactured by namco in its die-casting machine. The limit switch was used by Doehler as a safety device to prevent a shot of molten metal from entering and escaping a die when it was only partially closed, namco provided no warnings or instructions that limit switches were not to be used for that purpose. Key to namco’s liability is whether it should have foreseen the particular purpose for which the limit switch was to be used and the particular danger that such use posed. Defendant namco has offered proof establishing that, although it manufactured and sold millions of limit switches which were used for a number of purposes, it had never sold its switches directly to Doehler. namco argues that, under the circumstances, it could not reasonably foresee Doehler’s particular use of the switch as a safety device and, hence, is not liable for failing to warn against such use. Plaintiff has submitted proof of the purpose served by the limit switch and of namco’s awareness that limit switches were supplied to Doehler. Additionally, plaintiff has submitted an affidavit of a mechanical engineer who opined that namco was negligent in failing to warn and instruct machine assemblers, maintenance personnel, and the ultimate user, of the danger associated with the limit switch’s ability and limitations to detect partial closure in die-casting machines. Under the circumstances, plaintiff has come forward with sufficient proof to raise a triable issue of fact with respect to namco’s knowledge of the particular purpose for which the limit switch was used by Doehler and [1190] the need for adequate warnings and instructions with respect to its installation and use as a safety device. Turning to the order which granted defendant alcoa partial summary judgment, the court erred in determining as a matter of law that plaintiff could not recover on claims based on inadequate inspecting, testing, and warning. Plaintiff has submitted proof sufficient to raise a triable issue of fact on alcoa’s duty to warn. The evidence demonstrates that the die industry was aware at the time alcoa manufactured the die of the problem with molten metal flashing out between the two die halves. alcoa failed to submit evidence in support of its application for summary judgment on the issue of negligent inspection and testing of the die. Accordingly, it was error for the court to grant alcoa’s motion on that cause of action (see, Mulhauser v Wood, 107 AD2d 1019). Finally, we find no merit to defendant alcoa’s contentions that the court erred by denying its motion for summary judgment to dismiss plaintiff’s complaint in its entirety. All concur, except Doerr and Boomer, JJ., who dissent and vote to affirm the order, in the following memorandum.