Upon the foregoing papers, it is ORDERED that Defendants' Motion for Summary Judgment be and the same is hereby granted in its entirety. In accordance therewith, all causes of actions embraced within Plaintiff's Complaint are hereby dismissed.

The within action was commenced by the filing of a Summons and Verified Complaint on October 11, 2005. Issue was joined by Defendant Abel-Womack on January 25, 2006 by the service of its Verified Answer and by Defendant Raymond by the service of its Verified Answer on February 13, 2006. Discovery is complete and trial note of issue filed.

The facts, insofar as they are relevant to the pending motion, reveal that on April 4, 2005 Plaintiff, Parker, was employed by Home Depot at its Montgomery, Orange County, New York distribution center as a forklift operator. Plaintiff testified, at his deposition, that he was previously employed by Hobart West as a temporary worker at the Montgomery Home Depot Distribution Center from November 2004 through February 2005 at which time he was hired by Home Depot. Plaintiff, while in the employ of Home Depot, was trained in forklift and electric power jack operations; training that consisted of classroom instruction, hands-on training and a written examination. Plaintiff successfully completed all phases of his training and was thereafter certified and authorized to operate a forklift by Home Depot. Plaintiff's deposition testimony further established that prior to his employment with Hobart West and Home Depot he attended and [*2]successfully completed a forklift certification course at BOCES; passage of which consisted of his successful completion of both a written examination and hands-on training.

On the day of the accident, Plaintiff was working his normal night shift commencing on the evening of April 3rd through the morning of April 4th, 2005. The uncontradicted testimony, and the documentary evidence corroborating same, indicates that prior to the commencement of his shift, and in accordance with OSHA regulations and Home Depot policy, Plaintiff conducted a "pre-shift inspection" of the forklift, the ostensible purpose of which was to detect and identify any mechanical problems with the forklift. No deficiencies were detected. Plaintiff thereafter discharged his normal work duties and operated the forklift, without problem or incident, for approximately six (6) hours. It appears that during the tail end of his shift Plaintiff was operating his unloaded forklift, traveling down one of the warehouse aisles at the Distribution Center toward a co-worker; presumably for the purpose of speaking to him. After traveling approximately 20 to 25 feet he attempted to stop the forklift by removing his right foot from the "dead man's pedal", coasted and struck an unattended pallet in the aisle. Plaintiff's left foot, which was outside the protective enclosure of the operator's compartment, became lodged between the forklift and the pallet jack resulting in Plaintiff's injuries.

Plaintiff, at the time of his accident, was operating a Raymond EASi-C (E-Z reach truck-truck 57) stand up, narrow aisle reach truck; a truck first developed by Raymond in the late 1940s. The forklift is designed for transporting palletized loads of goods from one location to another within the warehouse. The EASi C reach truck, forming the subject of the pending litigation, was manufactured by Raymond in March of 2003. At the time of its manufacture, and prior to its marketing, a Quality Assurance-Electric Truck Inspection Report was completed. It is undisputed that Home Depot and Raymond have enjoyed a longstanding business relationship and since the forklift's manufacture, Home Depot has purchased and/or leased thousands of Raymond's trucks. There is no question (nor does plaintiff dispute) that Home Depot is a "highly knowledgeable"/sophisticated consumer. Raymond produces and supplies each prospective purchaser with a detailed Owner/Operators Manual which contains detailed product and safety information. Each truck (including the subject forklift) also comes with on-product safety decals. Raymond also provides a detailed brochure which outlines the various options available to prospective customers; options which include a "rear operator guard, partial or full".

Both the design and manufacture of the forklift is subject to certain design and safety standards developed by the American National Standards Institute ("ANSI") which standards have been incorporated into Federal regulations; specifically OSHA 29 C.F.R. 1910.178. The subject forklift meets or exceeds all such requirements and standards.

In relevant part, ANSI B 56.1 (safety standard for high and low lift trucks) specifically provides for the following:

"Stand-ups rear entry end control, narrow aisle, and reach trucks shall be designed with open operator compartments to permit easy ingress and egress. This allows the operator, where possible, a free and easy egress from the truck in the event of am imminent tip over or off-the-dock accident."

Section 5.3.22(e) of ANSI B 56.1 provides for the following:

"(e) these trucks are designed with open operator compartments to permit easy ingress and egress. Although there is no sure way in all circumstances to avoid injury, where possible, in the [*3]event of an imminent tip over or off-the-dock accident, the operator should step off and away from the truck. These actions are intended to reduce the risk of serious injury or death."

The subject forklift , manufactured by Raymond, is capable of achieving a maximum speed of seven and one-half (7 ½) miles per hour, unloaded, and seven (7) miles per hour, fully loaded. Raymond, determines the maximum speed. The "end- user", however, (in this case, Home Depot) has the ability to reduce the maximum speed if it so desires. The EASi reach truck is designed with two (2) modes of braking: the first (and the normal mode) by "plugging"and second (the emergency mode) by the use of the "dead man's pedal". Plugging and the dead man's pedal do not operate nor will they operate simultaneously. There is no factual dispute that the forklift operator is required to remain within the protective confines of the operator's compartment. Indeed, Plaintiff in his depositional testimony admitted to such and that he was trained to do so. He likewise acknowledged that had he remained within the confines of the operator's compartment he would not have been injured.

Although the forklifts are purchased and/or leased by Home Depot from Raymond, they are serviced by Defendant, Abel-Womack, on an "as need" basis. Indeed, neither party has submitted any contractual documents from which the Court could reasonably conclude that Home Depot had in any way delegated its oversight responsibility or control of its machines to Abel-Womack or the for that matter the exclusivity of their service arrangement.

It is undisputed that Abel-Womack regularly serviced the forklifts, the frequency of which increased due to the accelerated wear on the brake pads; accelerated wear presumably resulting from the overuse of the dead man's pedal. In fact, it was this overuse that served as the catalyst for the authorship of a January 19, 2004 letter, some 16 months prior to the accident, by Abel-Womack's area service manager, Dave McDermott, to Joseph Stewart at the Home Depot Distribution Center, in which McDermott wrote the following:

"There has recently been some maintenance issues with your Raymond reach trucks that we wanted to call to your attention. There have been multiple repairs on your trucks for what we consider premature brake wear as well as multiple drive wheel replacements . . . Both of these conditions are caused by repeated application of the dead man pedal brake which not only wears on the break but also causes the drive wheel to slide when the brake locks up which in turn causes flat spots on the wheel . . .

We evaluated the trucks in each case and found break components worn by otherwise operating normally. After some further evaluation by our on-sight technician, we found that many operators are routinely using the dead man brake to slow and stop the truck during normal operation. The Raymond reach truck is designed to use the plugging action of the throttle as the normal means of slowing and stopping the truck . ... Although the dead man brake is capable of stopping the truck, its intended use was for emergency stopping and parking.

Our intent is to help prevent potentially costly repairs that can easily be prevented. This may require some refresher training . . . Abel-Womack would be glad to help Home Depot accomplish as necessary . . ." (Emphasis added).

The record is devoid of any evidence (written or testimonial) as to what actions, if any, [*4]Home Depot undertook either internally or externally with, Abel-Womack directly, in response to the January 19th communication.

Based upon the foregoing, Defendants, Raymond and Abel-Womack, now move for summary judgment seeking dismissal of each and every cause of action embraced within Plaintiff's Complaint. They assert that they are entitled to summary judgment, as a matter of law, due to the absence of any genuine issue of material fact. They also assert that Plaintiff lacks any evidence that would warrant liability on any theory of product liability, general negligence or breach of express and/or implied warranty. They further assert that there is no basis for the imposition of liability upon Defendant Abel-Womack based upon the theory of negligent maintenance and/or repair due to the absence of any legal duty to Plaintiff Parker.

Plaintiff, on the other hand, asserts that Defendants' motion should be denied due to the existence of multiple material issues of fact and that Abel-Womack's letter of January 19, 2004, establishes knowledge on their part of a design defect and notice to Defendant Raymond; notice that they failed to act upon. Plaintiff further asserts that the warnings provided by Raymond with respect to both the operation and the method of stopping the forklift were inadequate and that Defendants could have and should have designed, developed and manufactured the forklift with some type of "tethering" device or foot guard so as to facilitate the operator's ability to safely remain within the confines of the compartment. Plaintiff further asserts that the forklift did not operate to its design specifications and was generally defective and dangerous in its design, manufacture, construction, promotion and maintenance. It is for these reasons Plaintiff asserts that Defendants' motion should be denied. The Court disagrees.

Correspondingly, in defeating a motion for summary judgment, the opponent must produce evidentiary proof, in admissible form, sufficient to require a trial of material questions of fact or must demonstrate [an acceptable] excuse for such failure to do so. See, Alvarez v. Prospect Hospital 68 NY2d 320, 508 NYS2d 923 [1986]; City of New York v. Grosfeld Realty Company, 173 AD2d 436, 570 NYS2d 61 [2d Dept. 1991]. V. Savino Oil & Heating Co., Inc. v. Rang Management Corp., 161 AD2d 635, 555 NYS2d 413 [2d Dept. 1990]. Moreover, in the context of a product liability case, the plaintiff is required to submit evidentiary facts, by expert affidavit, supported by germane foundational facts and data or supported by applicable industry standards and regulations. In the absence thereof, such opinions are deemed speculative in nature and therefore lack sufficient probative value to raise genuine issues of fact. See e.g., Jackson v. Bomag GMBH 225 AD2d 879, 638 NYS2d 819 [3rd Dept.-1996]; Fallon v. Hannay & Son, 153 AD2d 95, 550 NYS2d 135 [3rd Dept.-1989]; Pigliavento v. Tyler Equipment Corporation, 248 AD2d 840, 669 NYS2d 747 [3rd [*5]Dept.-1998]; Powles v. Wean United Corp., 126 AD2d 624, 511 NYS2d 61 [2nd Dept.-1987].

Application of the above standard, based upon the record presented to the Court, requires the granting of Defendant's application and the corresponding dismissal of each and every cause of action embraced within Plaintiff's complaint.

In order to establish a prima facie case in negligence, it is incumbent upon the Plaintiff to demonstrate that the Defendant owed a duty of reasonable care, that there was a breach of that duty and that Plaintiff suffered resulting injury proximately caused by such breach. See, Pulka v. Edelman, 40 NY2d 781, 390 NYS2d 393 (1976); Strauss v. Belle Realty Co., 65 NY2d 399, 492 NYS2d 555 (1985); Boltax v. Joy Day Camp, 67 NY2d 617, 499 NYS2d 660 (1986). Thus, the threshold issue presented is whether Defendant Abel-Womack owed a duty of care to Plaintiff Parker. See, Espinal v. Melville Snow Contractors, Inc.,98 NY2d 136; 746 NYS2d 120 (2002); Darbie v. Compagnie National Air France, 96 NY2d 343, 728 NYS2d 731 (2001). As a matter of law, ". . . . [f]oreseeability of harm does not define duty. Absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable harm . . ." . 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc., 91 NY2d 280, 289, 727 NYS2d 49 (2001). Moreover, the existence and scope of such a duty is a question of law. See, Palka v. Service Master Mgt. Services Corp., 83 NY2d 79, 611 NYS2d 817 [19940; Eaves Brooks Costume Co. v. W.B.H. Realty Corp., 76 NY2d 220, 557 NYS2d 286 (1990). Here, the Court concludes, and so finds, that Defendant Abel-Womack had no such duty to Plaintiff Parker.

As a general proposition, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party. Eaves Brooks, supra @ 226; Palka, supra @ 585-586. Decisional law has nevertheless carved out three (3) distinct exceptions to the general rule in which a party who enters into a service contract may be said to have assumed such a duty of care and thus potential liability. Such assumed duty arises where: (1) the contracting party, in failing to exercise reasonable care in the performance of his duties, "launches a force or instrument of harm"; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 746 NYS2d 120 [2002]; Church v. Callanan Industries, Inc., 99 NY2d 104, 752 NYS2d 254 [2002]; Singh v. United Cerebral Palsy of New York City, Inc., 2010 NY Slip Op 1602, 896 NYS2d 22 [1st Dept-2010]); factors conspicuously absent here.

Here, no evidence has been presented which suggests that the relationship between Abel-Womack and Home Depot was exclusive or that Abel-Womack displaced Home Depot's obligation to provide a safe workplace to its employees. The record confirms that Abel-Womack was called upon to effectuate repairs for Home Depot on an "as-need" basis. The mere fact that periodic and occasional repairs were effectuated (even with increased frequency) does not, as a matter of law, remove Home Depot's exclusive control over its work site. See, Labor Law Section 200, Stone v. Courtyard Management Corp., 353 F.3d, 155, 160 [Second Circuit-2003]. Moreover, there is no evidence which establishes, either directly or inferentially, that Abel-Womack was [*6]negligent in effectuating its service obligations. Indeed, on the contrary, the evidence indicates that the work was performed and the vehicles placed back in service without incident. Even Plaintiff's expert was unable to opine that the repairs were negligently performed or that Plaintiff's accident was causally connected to Womack's discharge of their service obligations.

It is unclear what more Abel-Womack could have done. In advising Home Depot of its employees' misuse of the dead man's pedal, and the resulting acceleration of wear, and offering to assist Home Depot, if necessary, in retraining its employees, Abel-Womack went beyond its contractual and legal obligation. Suffice to say, Plaintiff's continued mis-characterization of such notification as notice of a "design defect" does not make it so and does not serve as a legal predicate to elevate what clearly was and continued to be a maintenance issue as evidence of a design defect. Based upon the foregoing, Plaintiff's Fifth Cause of Action against Defendant Abel-Womack is dismissed .

Plaintiff's remaining causes of action allege that the forklift did not operate to its design, was defective and dangerous. Specifically, Plaintiff alleges that Defendant [Raymond] was "careless in its design, manufacture, construction and in its failure to give adequate warnings, directions and training for its intended use and operation".

As a general proposition, a manufacturer has a duty to warn against latent dangers resulting from foreseeable uses (both intended and unintended) of its products of which it knew or should have known. See, Liriano v. Hobart Corp., 92 NY2d 232, 677 NYS2d 764 (1998); Rastelli v. Goodyear Tire & Rubber Co., 79 NY2d 289, 582 NYS2d 373 (1992); McArdle v. Navistar Intern. Corp., 293 AD2d 742 NYS2d 146 [3d Dept.-2002]. In order for Plaintiff to sustain his burden of proof regarding Defendant Raymond's alleged failure to warn, it was incumbent upon the Plaintiff to establish that Raymond had a duty to warn Plaintiff, that it breached its duty and that such failure was a substantial factor or proximate cause of Plaintiff's injury. See, Howard v. Poseiden Pools, Inc., 72 NY2d 972, 534 NYS2d 360 (1988); Boltax v. Joy Day Camp, 67 NY2d 617, 499 NYS2d 660 (1986). Here, Plaintiff's cause of action fails in three (3) respects. First, Raymond clearly discharged its duty to warn by providing a detailed Owner/Operator's Manual to prospective customers; a manual that contained detailed safety instructions including the use of "plugging" as the normal means of stopping the forklift as well as the use of the emergency dead man's pedal. Moreover it provided on-product safety decals. Secondly, Plaintiff was already aware, due to his training and experience, of the inherent dangers and hazards of operating the forklift. Plaintiff was certified not once, but twice, in forklift operation. He was aware, for safety reasons, that he was [*7]required to conduct a "pre-shift inspection" to insure that the forklift was operationally sound and that he was required to remain within the operator's compartment. Indeed, Plaintiff in his deposition testimony admitted to such. As a matter of law, the duty to warn of a product's danger does not arise when the injured party is already aware of a specific hazard or where the danger associated with the product is obvious. See, Lonigro v. TDC Electronics, Inc., 215 AD2d 534, 627 NYS2d 695 [2nd Dept.-1995]; Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75 AD2d 55, 427 NYS2d 1009 [4th Dept.-1980]; Baptiste v. Northfield Foundry & Machine Co., 184 AD2d 841, 585 NYS2d 221 [3rd Dept.-1992]; Alessandrini v. Weyerhauser Company, 207 AD2d 996, 617 NYS2d 101 [4th Dept.-1994]; Bigness v. Powell Electronics, Inc., 209 AD2d 984, 619 NYS2d 905 [4th Dept.-

1994]. Thirdly, even assuming the Court were to conclude that Defendant Raymond failed to discharge its duty to warn, and Plaintiff was not aware of the specific hazard, there is no evidence to suggest that such failure was a substantial factor or a proximate cause of Plaintiff's injury.

Plaintiff alleges that Raymond's EASi reach truck was defectively designed. "In order to establish a prima facie case in strict product's liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injuries". Voss v. Black & Decker Co., 59 NY2d 102, 107, 463 NYS2d 398 198 (emphasis added). "A cause of action for negligent design additionally requires that the manufacturer acted unreasonably in designing the product." McCardle v. Navistar International Corp., 742 NYS2d 146 @ 150; citing Voss, 59 NY2d @ 107. (emphasis added).

The New York standard for determining the existence of a design defect requires an assessment of whether "if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner." (Voss, supra @ 108) which standard demands an inquiry into the following factors:

"(1) The product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user and (7) the manufacturer's ability to spread the cost of any safety related design changes". Denny v. Ford Motor Co., 57 NY2d 248, 257, 639 NYS2d 250 (1995); Voss, supra @ 109.

There is no proof, nor has Plaintiff established, that the forklift was defective when sold by Raymond or that any defect even existed when it left Raymond's possession and control or that any such defect, even if it existed, was a substantial factor in causing Plaintiff's injury. Through the testimony of its expert, and the operative regulations and documentary evidence, Raymond established its prima facie case that the forklift in question met or exceeded all applicable design and industry standards. Defendants having established their prima facie entitlement to judgment, it was therefore incumbent upon the Plaintiff to produce "evidentiary proof in admissible form" sufficient to create trial issue(s) of fact. While Plaintiff's expert opined that a tethering device, foot brace or foot guard could have and should have been installed, his opinion was essentially conclusory in nature, unsupported by any training or experience in forklift design and further [*8]unsupported by germane foundational facts and data (i.e. design, lab and field testing data) or applicable industry standards. Indeed, Plaintiff's expert cites no other manufacturer that utilizes a forklift truck design with anything other than an open back for "free and easy egress from the truck in the event of an imminent tip over or off-the-block accident". See, Vannucci v. Raymond Corporation, 258 AD2d 198, 693 NYS2d 347 [3rd Dept.-1999]; Pigliavento v. Tyler Equipment Corporation, 248 AD2d 840, 669 NYS2d 747 [3rd Dept.-1998]; Fallon v. Hannay & Son, Inc. 153 AD2d 95, 550 NYS2d 135 [3rd Dept.-1989].

The opinions offered by Plaintiff's expert in his opposing affidavit also stand in stark contrast to his depositional testimony in which he was unable to recall any basis to conclude that the design of Defendant Raymond's forklift violated any ANSI standard. As such, the affidavit offered by Plaintiff's expert to rebuff Defendant's prima facie case, "presented feigned issues of fact designed to avoid the consequences of his earlier deposition testimony" and is thus insufficient to defeat Defendant's motion. See, Koralski v. New York City Transit Authority, 44 AD3d 826, 844 NYS2d 96 [2nd Dept.-2007]; Stancil v. Supermarkets General, 16 AD3d 402, 790 NYS2d 552 [2nd Dept.-2005]; Oettinger v. Amerada Hess Corp., 15 AD3d 639, 790 NYS2d 693 [2nd Dept.-2005]; Marcel v. New York City Transit Authority, 289 AD2d 459, 735 NYS2d 580 [2nd Dept.-2001]; Joseph v. New York Racing Association, Inc., 28 AD3d 105, 809 NYS2d 526 [2nd Dept.-2005].

Moreover, Plaintiff ignores Home Depot's status as a "highly knowledgeable" /sophisticated consumer, which in the context of the current record, relieves Raymond of its duty to market a safe product where it afforded Home Depot optional safety features prior to its purchase. See, Scarangella v. Thomas Built Buses, Inc., 93 NY2d 655, 695 NY2d 520 (1999). In Scarangella, supra , the court held that:

"The product is not defective where the evidence and reasonable inferences therefrom show that: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) the circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product. In such a case, the buyer, not the manufacturer, is in a superior position to make the risk-utility assessment and a well considered decision by the buyer to dispense with the optional safety equipment will excuse the manufacturer from liability . . ." Scarangella @ 661 (emphasis added).

Home Depot's sophistication as a buyer coupled with Raymond's longstanding business relationship resulting in the sale and/or lease of thousands of its forklift have gone effectively unchallenged by Plaintiff. Defendant has clearly established that optional safety features (the "Rear Operator Guard, partial or full") were readily available to Home Depot and offered in Raymond's sales brochure. The evidence presented by Raymond, and the reasonable inferences derived therefrom, clearly show that Home Depot was in a superior position to make the necessary"risk-utility assessment". "If knowledge of available safety options is brought home to the purchaser, the duty to exercise reasonable care in selecting those appropriate to the intended use rests upon him. He is the party in the best position to exercise an intelligent judgment to make the tradeoff between cost and function, and it is he who should bear the responsibility if the decision on optional safety equipment presents an unreasonable risk to users". Biss v. Tenneco, Inc., 64 AD2d [*9]204, 207, 409 NYS2d 874 [4th Dept.-1978]. (Emphasis added).

Similarly, Plaintiff's manufacturing defect claim alleging that Raymond's forklift did not perform as intended, likewise fails for the reasons hereinbefore stated. See, Caprara v. Chrysler Corp., 52 NY2d 114, 436 NYS2d 251 (1981); Fitzpatrick v. Curri, 52 AD3d 1098, 861 NYS2d 431 [3rd Dept.-2008]; Halloran v. Virginia Chemicals, Inc., 41 NY2d 386, 393 NYS2d 341 (1977). The record is simply devoid of any evidence that would suggest, either directly or inferentially, that Raymond's EASi Reach Truck was manufactured other than as it was designed or that it did not perform as intended.

Accordingly, and for the reasons set forth herein, Defendants' motion for summary judgment, pursuant to CPLR § 3212, is granted in its entirety and, correspondingly, Plaintiff's Complaint, and all causes of action embraced therein, are hereby dismissed.

This constitutes the decision and order of the Court.

Dated:May 17, 2010

Goshen, New York

E N T E R

Hon. Robert A. Onofry, A.S.C.J.

TO: