Products Liability: Waterman v. CNH America, LLC, et. al. (N.Y. App. Div., 4th Dept.)

June 21, 2017

by Maurice L. Sykes, Esq. and Henry A. Zomerfeld, Esq.


In Waterman, plaintiff was a municipal employee working to reinforce a guardrail near a road.  Plaintiff’s colleagues were using an excavator bucket to pound 12’ rail irons into the ground.  Plaintiff was standing under the 725-pound excavator bucket when he was allegedly struck by the bucket, sustaining injuries.


Plaintiff brought suit alleging, in part, that defendants owed plaintiff a duty to warn of the danger that allegedly caused the accident.  Defendants moved for partial summary judgment on the grounds that they owed plaintiff no duty of care to warn of the open and obvious danger of standing underneath the 725-pound excavator bucket.  Defendants also argued that even if the condition was not open and obvious, the warnings in the operator’s manual were sufficient to make plaintiff aware of the danger.


On July 7, 2015, in a 41-page decision, the Supreme Court, Erie County, granted defendants’ motions for summary judgment, reasoning that they had no duty to warn of an open and obvious common-sense risk, and that plaintiff failed to demonstrate any genuine issue of material fact to defeat the motions.  The Court found there was nothing lacking or insufficient about the warnings in the operator’s manual.  The Court also noted (as argued by defendants) that two of plaintiff’s colleagues had walked away from the area where the repair was taking place out of concern for their own safety, which the Court took to be an acknowledgment of the danger of standing underneath the excavator bucket.  Plaintiff appealed.


On May 5, 2017, the Fourth Department unanimously affirmed the Supreme Court decision granting partial summary judgment in favor of defendants.