Rainbow v. Albert Elia Building Co.

Cardamone, J. P. (dissenting).

We agree with the majority’s affirmance of the dismissal as to Albert Elia Building Co., Inc. Our difference stems from the dismissal of the complaint against defendant Harley-Davidson on its strict liability claim.

In Caprara v Chrysler Corp. ( 52 NY2d 114 ), the Court of Appeals distinguished between ordinary negligence suits and strict products liability actions, noting in the former that proof of defendant manufacturer’s postaccident design improvement is not admissible because in the traditional concept of negligence, proof going to hindsight is of little probative value. However, in the latter—strict liability action—it held that the scienter vital to a negligence suit need not be shown. When a product that causes injuries is defective at the time it left the manufacturer’s possession, then the manufacturer, who is in the best position to alleviate these dangers is liable. Further, the court held that in this type of action there is no fear that admission of postaccident design modification evidence will discourage manufacturers from remedying dangerous conditions in its products.

Had plaintiff been permitted to introduce postaccident studies, defendant’s, product may have been shown to be defective. The trial court took this six-week trial case from the jury upon its finding that plaintiff failed to establish that the absence of crash bars contributed to the cause of plaintiff’s injuries. We are all in agreement, however, that plaintiff established a prima facie case on the issue of causation and that the presence of crash bars on the motorcycle would have protected plaintiff’s leg on impact (ma *296 jority opn, p 290). We believe that the issue of defective design presented a question of fact that should have been resolved by a jury. The trial court’s action prevented such resolution and its determination to remove the case from the jury was on the basis of a failure of proof. The difficulty with that conclusion is that the trial court sustained objections to some of the testimony offered by plaintiff’s well-qualified expert which might well have established defective design sufficiently for the jury to consider and resolve this issue. The test when taking a case from the jury, that by no rational process could the triers of fact find in favor of plaintiff, it seems to us, may not appropriately be relied upon as a basis for a trial court’s dismissal when the trial court itself refuses to permit a rational basis for plaintiff’s cause from being introduced into evidence. The record will support a conclusion that the trial court, while sustaining objections to questions posed to plaintiff’s expert by plaintiff’s counsel repeatedly failed to give the basis of his rulings even when asked. This refusal seriously impaired counsel’s efforts to lay the necessary foundation which the majority points out as lacking.

Focusing on plaintiff’s expert testimony, objections to attempts to introduce his testimony relative to whether a crash bar patent that Harley-Davidson sought in 1934, whether a crash bar was essential, and whether it was a departure from sound engineering practice to fail to have a crash bar as a standard feature on this motorcycle were all sustained. In short, had the expert been allowed to testify more fully on these matters, his opinion might well have established that defendant manufacturer had produced a motorcycle that was defective. To deprive plaintiff of the benefit of this potential testimony and later grant a dismissal for failure of proof seems to us to be such a substantial error as to require a new trial.

Hancock, Jr., and Moule, JJ., concur with Simons, J.; Cardamone, J. P., and Callahan, J., dissent and vote to reverse in part and grant a new trial as to defendant Harley-Davidson, in an opinion by Cardamone, J. P.

Judgment affirmed, without costs.