Scott Technologies’ Personal Alert Safety System (PASS) device (Scott)
ALBANY – A firefighter who claims a faulty safety device caused him to lose an arm and suffer burns in a smouldering pile of debris produced “more than sufficient” evidence to defeat a motion for summary judgment made by the device’s manufacturer, an appeals court has determined.
The Appellate Division, Third Department unanimously held that Mitchell Dryer Jr. raised enough issues about how his Personal Alert Safety System (PASS) device performed, or failed to perform, to allow his claim for negligence and strict products liability to proceed to trial against the device’s maker, Scott Technologies, Inc.
In Dryer v. Musacchio, 516262, the court cited affidavits and testimony from several of Dryer’s fellow firefighters who said his PASS system did not send out a piercing alarm when he was buried in the burning debris of a collapsed ceiling at the City Lanes in Oneida on April 22, 2007.
Though several firemen said they had a general idea of where Dryer had fallen, it took them more than 20 minutes to locate his body in a debris field of about 40 feet by 12 feet. Due to the delay, he lost an arm and suffered other severe burn injuries, his suit contends.
“Under these circumstances, a question of fact exists as to whether the alleged defect in Dryer’s PASS device was a substantial factor in causing or exacerbating his injuries,” Justice John Egan Jr. (See Profile) wrote for the court.
Egan noted the testimony of Oneida Fire Lt. Robert Cowles, who said the rescue work probably would have gone faster if firemen had been able to use a chain saw to slice through debris. But without knowing precisely where Dryer’s body was, Cowles said firefighters had to move the debris mostly by hand so as not to accidentally injure their missing comrade.
Egan said the firefighters’ testimony effectively countered Scott Technologies’ defense at the pretrial stage of the litigation.
In order to prove strict products liability, a plaintiff must show that a product was defective and that the defect was a “substantial factor” in causing injury.
Egan wrote that Scott Technologies based its defense on the claim that any supposed deficiency in its PASS device was not a “substantial factor” in Dryer’s injuries.
The company argued that because every rescuer “knew of Dryer’s location within the debris field,” the alleged defect in the PASS device neither hindered the rescue nor exacerbated Dryer’s injuries.
It was to that contention that Egan said the proof presented by Dryer and other firemen was “more than sufficient” to raise a triable issue of fact about the products liability claim.
Justices John Lahtinen, William McCarthy and Elizabeth Garry joined in the May 1 ruling. It affirmed a determination by Acting Madison County Supreme Court Justice Dennis McDermott.
The court also said Dryer’s action against the owner of the bowling alley, Paul Manaseri, and the lessee of the building, Michael Musacchio Jr., may go forward. Dryer claims the men were responsible for safety code violations, possibly faulty wiring, that sparked the blaze.
Firefighters testified that they were called to the deserted building after early morning reports of smoke. Despite using a thermal imaging device, they could not find the fire until noticing small flames in the ceiling. As Dryer began training a hose on the flames, a large portion of the ceiling collapsed on him and Cowles, according to the ruling.
Dryer’s PASS should have sounded a steady shriek within 30 seconds from when its motion detector sensed the fireman was immobilized, and its red LED light should have been flashing, according to Scott Technologies’ description of the device.
Patricia Lynn-Ford, a partner in the Lynn Law Firm in Syracuse, is representing Dryer.
She contended that deficiencies in the performance of the Scott Pak Alert SE+ in moist, high-heat environments led to a redesign of the product in 2007. Dryer wore a pre-redesign version of the product when injured, she said.
“This was the only time that anyone in the little Oneida Fire Department had to depend on the device in a life-threatening situation and, unfortunately, it failed,” she said in an interview.
Scott Technologies and its affiliate Scott Health and Safety are subsidiaries of Tyco International based in Monroe, N.C. Scott is a manufacturer of self-contained breathing systems and other devices for emergency responders.
Charles Eblen, a partner in Shook, Hardy & Bacon in Kansas City, represented Scott Technologies.
Jennifer Wang, an associate at Costello, Cooney & Fearon in Syracuse, represented Manseri. Kevin Hunt, partner in Gale Gale & Hunt in Syracuse, argued for Musacchio.