Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered April 24, 2007. The judgment, entered upon an order of the same court dated October 20, 2006 granting defendants' separate motions pursuant to CPLR 4404 (a) to set aside the verdict (op 13 Misc 3d 1227[A], 2006 NY Slip Op 52007[U]), dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action, plaintiff, a police officer, alleges that she was injured while playing a game of flag football in 1994. According to plaintiff, she was trying to de-flag an opposing player when her finger became entrapped in the metal D-ring closure of the opposing player's flag belt and, as the other player tried to twist away, plaintiff's finger was badly crushed in the metal rings. Plaintiff commenced this action in Supreme Court, Kings County, against the manufacturer and distributor of the flag belt, alleging, among other things, that the belt was defectively designed. The action was subsequently transferred to the Civil Court, Kings County, pursuant to CPLR 325 (d). After trial, a jury returned a verdict in favor of plaintiff, in the principal sum of $1.6 million for past and future pain and suffering, on a theory of strict products liability design defect. Defendants moved, separately, to set aside the jury verdict pursuant to CPLR 4404 (a), arguing, among other things, that plaintiff had failed to make a prima facie showing that the belt in [*2]question was defectively designed. The Civil Court granted defendants' motions (op 13 Misc 3d 1227[A], 2006 NY Slip Op 52007[U]) and directed that judgment be entered, as a matter of law pursuant to CPLR 4404 (a), dismissing the complaint. A judgment was subsequently entered, from which plaintiff appeals.

The belt in question was designed to be fastened on the wearer by D-rings and had detachable flags attached by velcro (the D-ring flag belt). In order to de-flag someone wearing the belt, a player on defense must pull off one of the two attached flags to cause the offensive play to end. Also on the market at the relevant time were quick-release or one-piece belts (quick-release flag belts). On those belts, the flags were not detachable; instead, the entire belt would come off when the flags or the belt was pulled. Plaintiff alleges that the D-ring flag belt was defectively designed because the D-ring closure posed a finger entrapment hazard, and that the quick-release flag belt was a safer design.

In order to prevail upon her cause of action based on a design defect, plaintiff was required to show, among other things, that the product, as designed, posed "a substantial likelihood of harm" (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108 [1983]; see Denny v Ford Motor Co., 87 NY2d 248 [1995]). We agree with the Civil Court that plaintiff failed to submit sufficient evidence to prove, prima facie, that the D-ring flag belt posed a substantial likelihood of harm.

At trial, plaintiff's evidence as to defective design consisted mostly of the testimony of plaintiff's expert witness, Bruce Maurer, Ph.D., associate director of recreational sports at Ohio State University, who testified that the D-ring flag belt was not reasonably safe as designed. However, as the Civil Court noted, there was no substantial factual basis for this opinion:

"Dr. Maurer testified at trial, based upon his training and experience, including observation of tens of thousands' of flag-football games, that the Mason City/Markwort belt was not reasonably safe, and that the quick-release belts were of safer design. The only stated basis, however, for his opinion that the D-ring belt was not reasonably safe was that it presented an opportunity' for finger entrapment or entanglement and a potential to cause harm.' And to the substantial extent that Dr. Maurer's opinion was based on his experience and observation, he acknowledged that most of the tens of thousands of games he observed were played with quick-release belts and only a limited number' were played with a D-ring belt. However many that limited number' represent, Dr. Maurer never observed anyone's finger become entrapped or entangled in the D-rings, and he provided no other evidence that, except for this case, it had ever happened either before or since" (13 Misc 3d 1227[A], 2006 NY Slip Op 52007[U], *4).

In addition to the foregoing apt analysis by the Civil Court, we note that Dr. Maurer had no experience in the design or manufacture of flag belts. Similarly, Dr. Maurer had conducted no testing of the D-ring flag belt. Without any such foundational facts, Dr. Maurer's opinion lacked probative value (see e.g. Aparicio v Acme Am. Repair, Inc., 33 AD3d 480 [2006]; D'Auguste v [*3]Shanty Hollow Corp., 26 AD3d 403 [2006]; Canales v Hustler Mfg. Co., 12 AD3d 392 [2004]; Martinez v Roberts Consol. Indus., 299 AD2d 399 [2002]; Cervone v Tuzzolo, 291 AD2d 426 [2002]; Fallon v Hannay & Son, 153 AD2d 95 [1989]).

The remainder of plaintiff's proof relating to liability consisted of her own testimony and the testimony of other players who had witnessed the accident. That evidence included plaintiff's testimony that she had played flag football, in a league, for 19 years prior to the accident, and that she and the other players, both on her team and the opposing teams, had used D-ring flag belts, and that she had never witnessed anyone's finger get entrapped. Similarly, one of the other players testified that she had played and/or coached for 15 years (in the same league as plaintiff but on a different team), that the D-ring flag belt was the belt in "widespread use," and that she had never before seen anyone's finger get entrapped. In addition, another player testified that she had played in a flag football league for about 10 years, that D-ring flag belts were used during that time, and that she had never before witnessed anyone's finger get entrapped. Thus, plaintiff's own evidence showed that in almost 20 years of regular play, mostly or always using D-ring flag belts, this type of injury had never occurred, except for this accident, which strongly militates against a finding that the belt was substantially likely to cause injury (see Martinez v Roberts Consol. Indus., 299 AD2d at 400 [in affirming summary judgment for the defendant on a claim of design defect, the court noted that "the record reflects that the plaintiff himself utilized the knife [alleged to be defective] on a regular basis for approximately eight months to a year before the accident without any difficulty, complaint, or injury"]; see also Kelly v Academy Broadway Corp., 206 AD2d 794 [1994]). Without any showing that the product in question was unreasonably dangerous as designed, plaintiff's showing that there were economically feasible alternate designs available is, essentially, irrelevant (compare Adams v Genie Indus., Inc., 14 NY3d 535 [2010]).

Accordingly, we find that the jury verdict in favor of plaintiff on liability was properly set aside (see CPLR 4404 [a]).

On appeal, plaintiff further argues, in essence, that even if the Civil Court correctly ruled that she had failed to make a prima facie case of design defect as a matter of law (cf. CPLR 4404 [a]), the complaint should not be dismissed, but rather, a new trial should be ordered to allow her the opportunity to present sufficient proof, arguing that certain pre-trial evidentiary rulings by the Civil Court erroneously limited her case.

Prior to the trial, the parties had agreed to hold a hearing as to the possible scope of testimony to be offered by plaintiff's two proposed expert witnesses, Dr. Maurer and Bert Reiner. After the hearing, the Civil Court ruled that, while each proposed expert could testify, the testimony of each would be limited (op 11 Misc 3d 1072[A], 2006 NY Slip Op 50528[U]). At trial, plaintiff called Dr. Maurer, but did not call Mr. Reiner. Plaintiff asks that, if the jury verdict is not reinstated, a new trial should be ordered allowing such testimony in full. We disagree.

Among other things, the Civil Court found that Dr. Maurer would not be allowed to use, for the purpose of establishing a standard of care, rules promulgated by the National Intramural Recreational Sports Association (NIRSA), which, in effect, require the use of quick-release flag belts in flag football, and which Dr. Maurer testified at the hearing had been adopted, at least in part, because of the potential danger of finger entrapment posed by D-ring flag belts. The court also ruled that Mr. Reiner would not be allowed to testify as to two standards of the American [*4]Society of Testing Materials (ASTM), or as to testing that Mr. Reiner had done of the D-ring flag belt.

As the Civil Court correctly found, the two ASTM standards discussed by Mr. Reiner at the hearing clearly do not apply to the case at bar, as they relate to toys and playground equipment for children. Moreover, as noted at the hearing, the standard on toys specifically states that it does not cover sporting goods or athletic equipment. Plaintiff offered no factual basis as to why such standards should be considered in this case. Thus, we find that the Civil Court properly excluded testimony relating to those standards.

The testing conducted by Mr. Reiner was also properly excluded. Mr. Reiner indicated that his testing consisted of seeing what happened to a finger-like object if inserted into D-rings and sufficient pressure applied to the D-rings as would have been needed to pull the velcro flag off the belt. While such testing may have shown that the injuries in question could have been caused by the accident as plaintiff alleged it happened, such testing said nothing about the likelihood of any fingers becoming entrapped in the D-rings during flag football in the first place, and thus, such testing was not probative of the substantial likelihood of injury relating to the product as designed.

The NIRSA rules discussed by Dr. Maurer, on their face, govern only players of flag football, not equipment manufacturers. Moreover, Dr. Maurer conceded at the hearing that the NIRSA rules are voluntary, not mandatory. Dr. Maurer did not testify that those standards had been adopted by any flag belt manufacturers, and also could not state how many organizations actually followed the NIRSA rules and how many did not. Thus, the Civil Court properly ruled that those rules could not be used to impose a standard of care upon defendants (see Walker v Commack School Dist., 31 AD3d 752 [2006]; Capotosto v Roman Catholic Diocese of Rockville Centre, 2 AD3d 384 [2003]; Cruz v New York City Transit Auth., 136 AD2d 196 [1988]). Moreover, at the hearing, Dr. Maurer's only basis for claiming that the rule requiring quick-release belts had been adopted because of possible finger entrapment issues appeared to be his memory that, when NIRSA adopted the rule many years ago, some people on the rules committee had seen or heard of such finger entrapments. In other words, his opinion was apparently based on years-old anecdotal hearsay, not any personal experience, or studies or statistics relating to such danger.

Consequently, we find that plaintiff was not prejudiced by the Civil Court's pretrial ruling limiting the testimony of plaintiff's proposed experts.

In view of the foregoing, we find that the Civil Court properly dismissed the complaint as a matter of law. Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 22, 2013