The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the defendant manufacturer of a Bobcat skid loader was not entitled to a jury instruction on the so-called Scarangella defense in this products liability case. Plaintiff’s decedent was killed by a small tree which entered the open cab of the Bobcat. The Bobcat was rented without a door on the cab. A door was available as a safety device. The Scarangella defense, in limited circumstances, places the ultimate decision whether to employ an available safety device on the buyer rather than the manufacturer. In Scarangella the safety device was a back-up alarm for school buses. The purchaser of the buses opted not to have the alarms installed. Only the buyer’s employees operated the buses and all were aware of the blind spot behind the buses:
The Court of Appeals [in Scarangella] determined that a departure from the rationale for imposing strict liability against the bus seller was warranted because the plaintiff’s employer was a “highly knowledgeable consumer,” the risk of harm was not substantial because the buses were only operated in reverse in the parking yard, and the plaintiff’s employer was in the best position to assess the dangers of not having the alarm (id. at 661). The Court held that a product is not defective and a manufacturer or seller is not liable as a matter of law if it establishes that (1) the buyer was thoroughly knowledgeable about the product and its use and was aware that the safety feature was available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional feature; and (3) the buyer was in a position to balance the benefits and risks of not having the optional safety device “in the specifically contemplated circumstances of the buyer’s use of the product” … . Where all three prongs are satisfied, the “buyer,” not the manufacturer or seller, is in a better position to assess the safety of the product without the optional safety feature, and a court should not submit a defective design claim against a manufacturer or seller to the jury, as there is no justification for the accepted rationale imposing strict liability upon the manufacturer or seller … . If one or more of the three prongs is not satisfied, however, the manufacturer or seller is in a better position than the buyer to discover design defects and, therefore, liability can be imposed. * * *
The circumstances of this case demonstrate that the Supreme Court properly determined that the Scarangella exception is inapplicable. When the loader was sold to Taylor, the Bobcat defendants knew that Taylor would rent it out to consumers for their personal use. In other words, the Bobcat defendants knew that Taylor would be renting the loader to persons over whom Taylor had no control, and who might lack any experience operating heavy equipment. This is in sharp contrast to Scarangella, where the individuals at risk from the absence of back-up alarm equipment were almost exclusively the buyer’s employees, and it was readily inferable that these employees were fully aware of a bus driver’s blind spot in backing up a bus and the resultant hazard, and could be expected to exercise special care whenever positioned in proximity to the rear of any bus that was idling or moving in reverse in the yard. Where, as here, the buyer is purchasing the product for use not by its employees but by the general public, over whom the buyer will exercise no control once the product is rented, it would be inappropriate to apply an exception to liability that is premised on the buyer being in a superior position to make the risk-utility assessment. Fasolas v Bobcat of N.Y., Inc., 2017 NY Slip Op 02777, 2nd Dept 4-12-17
PRODUCTS LIABILITY (TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE SCARANGELLA DEFENSE WHICH PLACES THE RESPONSIBILITY FOR EMPLOYING A SAFETY DEVICE ON THE BUYER RATHER THAN THE MANUFACTURER)/BOBCAT (PRODUCTS LIABILITY, SKID LOADER, TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE SCARANGELLA DEFENSE WHICH PLACES THE RESPONSIBILITY FOR EMPLOYING A SAFETY DEVICE ON THE BUYER RATHER THAN THE MANUFACTURER)/SKID LOADER (PRODUCTS LIABILITY, BOBCAT TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE SCARANGELLA DEFENSE WHICH PLACES THE RESPONSIBILITY FOR EMPLOYING A SAFETY DEVICE ON THE BUYER RATHER THAN THE MANUFACTURER)/SCARANGELLA DEFENSE (PRODUCTS LIABILITY, LOADER, TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE SCARANGELLA DEFENSE WHICH PLACES THE RESPONSIBILITY FOR EMPLOYING A SAFETY DEVICE ON THE BUYER RATHER THAN THE MANUFACTURER)