Strict Products Liability Cause of Action Against Forklift Manufacturer Properly Dismissed Due to Owner’s Disabling Safety Switch/Question of Fact Whether Plaintiff Was a Special Employee of the Owner of the Forklift (Which Would Limit Plaintiff’s Recovery to Workers’ Compensation)

Plaintiff was injured by a forklift which continued running when he was out of the driver’s seat because the safety switch (which would have automatically shut the forklift off when the driver left the seat) had been disabled by the owner of the forklift.  The Fourth Department determined the strict products liablity cause of action against the manufacturer of the forklift was properly dismissed because the safety switch had been disabled. But the negligence cause of action against the owner of the forklift, Nuttall Gear, should not have been dismissed.  Nuttal Gear argued plaintiff was its special employee and therefore Workers’ Compensation was the exclusive remedy.  The Fourth Department determined there was a question of fact about whether plaintiff was a special employee. It was not clear that Nuttal Gear supervised plaintiff’s work:

We conclude that the court properly granted the motions of the products liability defendants. As the Court of Appeals has recently made clear, ” a manufacturer, who has designed and produced a safe product, will not be liable for injuries resulting from substantial alterations or modifications of the product by a third party which render the product defective or otherwise unsafe’ ” … . Here, the products liability defendants established as a matter of law that the forklift was not defectively designed by establishing that, when it was manufactured and delivered to Nuttall Gear, it had a safety switch that would have prevented plaintiff’s accident, and a third party thereafter made a substantial modification to the forklift by disabling the safety switch. The burden thus shifted to plaintiffs to raise an issue of fact, and they failed to meet that burden … . Contrary to plaintiffs’ contention, the affidavit of their expert, a professional engineer, does not raise a triable issue of fact.

We agree with plaintiffs, however, that the court erred in granting the motion of the Nuttall Gear defendants for summary judgment dismissing the complaint against them, and we therefore modify the order accordingly. It is well settled that “a general employee of one employer may also be in the special employ of another, notwithstanding the general employer’s responsibility for payment of wages and for maintaining workers’ compensation and other employee benefits” … . “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another . . . General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer” … . Although the determination of special employment status is “usually a question of fact,” such a determination “may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” … . * * *

It appears from the record that the only person who had contact with plaintiff at Nuttall Gear was Mark Moscato, who himself was a general employee of SPS [plaintiff’s employer]. The Nuttall Gear defendants have not identified a single person, other than Moscato, who told plaintiff what to do or how to do it.  Verost v Mitsubishi Caterpillar Forklift Am Inc, 2014 NY Slip Op 0008, 4th Dept 1-2-15