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DISTRIBUTOR’S AND SELLER’S MOTIONS FOR SUMMARY JUDGMENT IN THIS PRODUCTS LIABILITY AND NEGLIGENT DESIGN ACTION SHOULD HAVE BEEN GRANTED, PLAINTIFF’S OWN ACTIONS CONSTITUTED THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S INJURY AND THE DANGER WAS OPEN AND OBVIOUS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the distributor’s (Skyfood’s) and seller’s (E & A’s) motions for summary judgment in this products liability and negligent design action should have been granted. Plaintiff lost several fingers when he tried to remove a piece of cheese from a meat grinder being used to grate cheese by reaching into the hopper without turning the machine off. The court held that the plaintiff’s own actions constituted to sole proximate cause of the injury and the danger was open and obvious (no duty to warn):

The Supreme Court should have granted that branch of Skyfood’s motion which was for summary judgment dismissing the causes of action alleging strict products liability and negligent design insofar as asserted against it. Skyfood established its prima facie entitlement to judgment as a matter of law dismissing those causes of action by submitting, inter alia, the deposition transcripts of the plaintiff and the affidavit of an expert, which showed that the plaintiff’s own conduct of knowingly placing his hand into the hopper of the operating cheese grater without turning it off was the sole proximate cause of his injuries … . In opposition, the plaintiff failed to raise a triable issue of fact … .

We agree with the Supreme Court’s determination granting those branches of the separate motions of Skyfood and E & A which were for summary judgment dismissing the causes of action alleging failure to warn insofar as asserted against each of them. Skyfood and E & A made a prima facie showing of entitlement to judgment as a matter of law dismissing those causes of action insofar as asserted against them by establishing, as a matter of law, that they had no duty to warn the plaintiff of the open and obvious danger of knowingly placing his hand into a cheese grater in close proximity to its spinning blade … . Hernandez v Asoli, 2019 NY Slip Op 02688, Second Dept 4-10-19

 

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