A New York state court has granted a motion for judgment to a company that makes flag-football belts, which was sued after a participant caught her finger in the eyelet that the flag attaches to.
The ruling reversed a jury’s finding that the flag-football belt was defectively designed and the subsequent $1.6 million jury verdict.
The decision was based primarily on the fact that neither party could find that any similar such injuries had occurred in the 50 years and countless games that the design had been used.
The incident in question occurred on October 9, 1994, when plaintiff Miriam Delgado caught her right ring finger in the D-ring fastening mechanism of an opposing player’s flag-football belt. Delgado sued the manufacturer, Mason City Tent and Awning Company, and the distributor, Markwort Sporting Goods Company.
After the trial, a jury agreed with Delgado that “the Mason City/Markwort flag-football belt was defectively designed because the D-ring fastening mechanism was not reasonably safe, and awarded her damages of $ 1.6 million for past and future pain and suffering.”
The defendants appealed.
In its review, the court noted that under New York law, “a design defect may be actionable under a strict products liability theory if the product is not reasonably safe. (Denny v Ford Motor Co., 87 N.Y.2d 248, 256-57, 662 N.E.2d 730, 639 N.Y.S.2d 250 [1995].)
“Liability is determined by a ‘negligence-like risk/benefit’ inquiry (see id., at 258) that includes ‘such factors as (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.’ (Id., at 257.)”
The court added that the plaintiff “is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner. (Voss v Black & Decker Manufacturing Co., 59 N.Y.2d 102, 108, 450 N.E.2d 204, 463 N.Y.S.2d 398 [1983].)”
It then focused on the testimony of the plaintiff’s expert — Dr. Bruce Maurer, currently Associate Director, Department of University Recreation and Intramural Sports, the Ohio State University.
“Dr. Maurer testified at trial, based upon his training and experience, including observation of ‘tens of thousands’ of flag-football games, that the Mason City/Markwort belt was not reasonably safe, and that the quick-release belts were of safer design. The only stated basis, however, for his opinion that the D-ring belt was not reasonably safe was that it presented an ‘opportunity’ for finger entrapment or entanglement and a ‘potential to cause harm.’”
Yet, the court noted, Dr. Maurer testified that he had “never observed anyone’s finger become entrapped or entangled in the D-rings, and he provided no other evidence that, except for this case, it had ever happened either before or since.”
The court added that Dr. Maurer’s opinion is “insufficient to establish prima facie that the D-ring design was not reasonably safe. An ‘opportunity’ or ‘potential’ for harm is not the same as a ‘substantial likelihood of harm.’ (See Voss v Black & Decker Manufacturing Co., 59 N.Y.2d 102, 450 N.E.2d 204, 463 N.Y.S.2d 398; [**13] Martinez v Roberts Consolidated Industries, Inc., 299 A.D.2d at 400; Fallon v Clifford B. Hannay & Son, Inc., 153 A.D.2d at 101; Arnold v Krause, Inc., 232 F.R.D. 58, 72 [WDNY 2004]; G.E. Capital Corp. v A.O. Smith Corp., 2003 U.S. Dist LEXIS 11178, at *11, *12-13, 2003 WL 214901, *4 [SDNY]; Gonzalez v Morflo Industries, Inc., 931 F. Supp. 159, 165 [EDNY 1996].)”
Similarly, the defendants’ expert — Alan Butler, a consultant in physical education and sports recreation — had never witnessed any finger entrapment in the D-ring.
“The absence of reported injury does not, of course, establish that no injury has ever occurred,” wrote the court. “It may be that minor injury, particularly in the context of sports activity, would be accepted and forgotten. Even so, however, the implication for an assessment of the severity of the likely injury is obvious, particularly in the absence of expert evidence of likely severity.”
Miriam Delgado et al. v. Mason City Tent and Awning Co. and IFT Industries, Ltd.; Civ. Ct. of the City of N.Y., N.Y. Co.; 7374 / 97, 2006 NY Slip Op 52007U; 2006 N.Y. Misc. LEXIS 3006; 10/20/06
Attorneys of Record: (for plaintiff) Edward J. Anthony, Esq. and Laura Gentile, Esq. of Gentile & Associates. (for defendant Markwort Sporting Goods Company) Warren T. Harris, Esq. of the Law Office of Michael F.X. Manning; (for defendant Mason City Tent and Awning Co.) Gregg D. Weinstock, Esq. and William D. Buckley of Garbarini & Scher, P.C.
