the judges of the Court of Appeals
Standing, left to right: Judges Jenny Rivera, Robert Smith, Susan Phillips Read, Sheila Abdus-Salaam, and Eugene Pigott Jr. Seated, Judge Victoria Graffeo and Chief Judge Jonathan Lippman (Skip Dickstein)

ALBANY – The seller and distributor of a post hole digger were found liable for the accident that cost a 16-year-old girl her arm, even though the device’s owner admitted removing the safety plate that would have shielded her from the dangerous mechanism, the state Court of Appeals ruled Tuesday.

The 6-1 panel ruled over the objections of a dissenter, who derided his colleague’s “soak-the-rich” attitude, noting that deficiencies in the design of the digger’s safety plate led to it being discarded before the 2004 accident that crippled Jessica Bowers in Niagara County.

The court reasoned in Hoover v. New Holland North America, 36, that removing the safety device did not substantially modify the digger to absolve the seller and distributor of the design flaws in the discarded safety plate.

“Although owners are obligated to keep their products in good repair, they should not be required to continually replace defective safety components even if, as here, the components could be replaced easily and cheaply,” Judge Sheila Abdus-Salaam (See Profile) wrote for the majority.

Peter Smith, the owner of the post hole digger and the tractor on which it was mounted, said he had used the device to drill between 1,000 and 2,000 holes a year for four years before removing its plastic safety shield. He said he did not replace the part, which cost about $40, because he felt it was only “going to get bent up, broke up, and tore off again.”

He also acknowledged that he was in the habit of allowing the digger’s auger to go deeper into the ground than the owner’s manual recommended, probably contributing to bending and other damage to the safety plate, according to the court.

On the day of the injury, Gary Hoover was using Smith’s device in the backyard of his Niagara County home. His stepdaughter Bowers was helping him by making sure the auger that bore into the soil was vertical to the ground before Hoover set it in motion.

According to court briefs, Bowers’ coat became snagged on the rotating driveline of the digger and she was dragged into the mechanism, severing her right arm above the elbow.

The safety plate was designed to protect operators from the driveline and, had it been on the digger, would have prevented the accident, all the parties in the case agreed, according to the ruling.

Abdus-Salaam said Tuesday’s finding does not contradict the court’s most influential precedent on product design safety and consumer modification, Robinson v. Reed-Prentice Division of Package Machinery Company, 49 NY2d 471 (1980).

While Robinson held that those in the distribution chain of a product can use the post-sale modifications to the product as a defense for liability for injuries, it is not an absolute defense, Abdus-Salaam said.

Robinson made clear … that although the manufacturer’s responsibilities ‘do not extend to designing a product that is impossible to abuse or one whose safety features may not be circumvented,’ it must still ‘use reasonable care’ in designing the product that is reasonably safe for all of its intended uses and foreseeable misuses,” Abdus-Salaam wrote.

The seller and distributor of the digger were the sole defendants left in the case after others settled. They tried removing themselves from summary judgment but failed because the plaintiff raised questions of fact over whether the shield itself was defectively designed, Abdus-Salaam wrote.

The court’s determination was also in keeping with the general stance of New York courts that it should be up to juries to decide “whether a product is defectively designed,” Abdus-Salaam wrote.

Chief Judge Jonathan Lippman (See Profile) and Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Eugene Pigott Jr. (See Profile) and Jenny Rivera (See Profile) joined in Abdus-Salaam’s decision.

‘Soak-the-Rich’ Attitude

In an acerbic dissent, Judge Robert Smith (See Profile) said the majority’s finding violated the “substantial modification” rule of Robinson.

“Could it be more obvious that this rule applies to this case?” Smith wrote. “The majority opinion seems to me an exercise in avoiding the obvious.”

Smith asked whether, if both the digger’s designer and the farmer had equally deep pockets, “Would anyone hesitate for a moment in saying that the farmer, not the designer, should compensate Jessica Bowers for her injuries?”

Smith continued, “But of course pockets are not equally deep, and it should surprise no one that a jury assigned two-thirds of the fault to the companies that designed, manufactured and sold the machine— firms that could be liable only for the alleged design defects—and 30 percent to the farmer, Peter Smith. This kind of soak-the-rich fact-finding is commonplace in American tort law.”

The maker of the digger, Alamo/SMC, distributor CHN America, retailer Niagara Frontier Equipment Sales and a component manufacturer, NEAPCO, were all defendants at a trial for products liability or negligence.

Court briefs show that all defendants except for CHN and Niagara Frontier settled during the trial for $4.6 million.

The jury then awarded Bowers $8.8 million in damages under the following apportionment: 35 percent to CHN, 30 percent to SMC, 30 percent to Smith, 3 percent to Hoover and 2 percent to Niagara.

John Collins of Lipsitz Green Scime Cambria in Buffalo argued for Bowers.

“Obviously, on behalf of our client, I am very pleased,” Collins said Tuesday. “I think the Court of Appeals correctly recognized that given the nature of the evidence here, it was properly a jury determination that the post hole digger that Jessica Bowers was assisting in the use of had been defectively designed.”

Paul Jones of Phillips Lytle in Buffalo represented CHN and Niagara Frontier.

The ruling affirmed a finding by the Appellate Division, Fourth Department in Hoover v. New Holland North America, 100 AD3d 1495 (2012), which also upheld the award on Bowers’ behalf. Joseph Matteliano of Augello & Matteliano in Buffalo represented the estate of Hoover, who died during the litigation.

Also on Tuesday, the court in an unrelated case unanimously overturned a First Department ruling in People v. Johnson, 43, and dismissed an indictment against Todd Johnson for cocaine possession after determining his 2010 arrest for disorderly conduct in front of a Harlem deli was not supported by probable cause on the part of the arresting officer.

Authorities found cocaine in Johnson’s pocket in a subsequent search.

But the judges in an unsigned ruling said police lacked the evidence of “actual or threatened public harm” to sustain their stop of Johnson for disorderly conduct, as Penal Law §240.20(6) requires. The court said they had tried to make the same point about disorderly conduct arrests in their rulings in People v. Baker, 20 NY3d 354 (2013) and People v. Weaver, 16 NY3d 123 (2011).

Johnson was standing near the front entrance of the deli with three or four other men, all suspected gang members, when he was stopped. But the court said the men were not blocking the door or otherwise acting disorderly.

“It is understandable that police officers become concerned when people they believe to be gang members and their associates gather in public,” the court said. “It is not disorderly conduct, however, for a small group of people, even people of bad reputation, to stand peaceably on a street corner.”

Assistant Manhattan District Attorney Vincent Rivellese argued for the prosecution.

Stephen Sinaiko of Kramer Levin Naftalis & Frankel in Manhattan represented Johnson.