Overturned! Case Reinstated When Basch & Keegan Wins Appeal Overturning Dismissal

Case Reinstated

Another Basch & Keegan client won an appeal this week, thanks to Derek J. Spada. When a defense motion for summary judgment led to the dismissal of a product liability case in Albany County, Derek fought back. He appealed the decision and won. This victory revives the case, which will now proceed until it is either settled or resolved at trial.

Our client, who was 2-years-old at the time of the incident, was severely and permanently injured by a sheeter at her mother’s bakery while flattening out dough. The child often played with fondant in place of “Play Doh” as it had the same texture but was edible. The mother flattened out the dough in the machine, then turned it off and moved away. Later, the child put the dough in the machine again, as her mother had done, and the machine cut off all five fingers on the child’s right hand.

The defense claimed that the child should not have been near the machine. However, Derek argued that the company failed to warn of the danger presented by the sheeter and the machine was defectively designed.

To prove his case, Derek submitted expert affidavits from two licensed professional engineers. Both experts agreed that the machine was defective and lacked adequate guarding for the safety of the user. One expert provided feasible safer designs alternatives and pointed to two products also manufactured by the same defendant which had a safer guard and illuminated “on” switch. The defendant manufacturer chose to use a dangerous design in its lower end machines.

Derek also found a “how to” video on YouTube that was created by the defendant manufacturer. In the video, the person using the machine put their hand inside the infeed slot. This is how our client explained having to operate the machine, “with half your hand inside.” The child’s fingers went further into the machine, which is when they were crushed and amputated. Not only was the infeed design dangerous, but the warnings on the device were inadequate and the user would be unaware of the danger. Our client believed that the infeed guard would protect against injury.

The State of New York Supreme Court, Appellate Division Third Judicial Department stated:

“While the infant's use of the sheeter based solely on her age is arguably not foreseeable, inserting one's fingers into the sheeter to push dough through to the rollers certainly was, as defendant expressly depicted this on its YouTube page. Moreover, while any warnings would be superfluous as to the infant given her age and inability to read at the time of the accident, the warnings are relevant to Calabria, who placed the infant in front of the sheeter. This is so especially given her testimony that she believed the sheeter was safe, in part based on the operations manual and YouTube video. Thus, plaintiff raised an issue of fact as to whether the adequacy of the warnings was a substantial factor in bringing about the injury. Therefore, plaintiff's submissions raised a triable issue of fact as to whether defendant's warnings to keep fingers and hands from the roller area were adequate, especially in light of the video where an individual is doing the exact opposite.”

We will provide an update when the case is resolved.

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