New York court affirms $8.8 million verdict to woman injured by defectively post hole digger

by Eric Pearson

Jessica Bowers was severely injured when she was caught and dragged into the rotating driveline of a tractor-driven post hole digger. The post hole digger was manufactured by Alamo/SMC Corporation (SMC) and distributed by CNH America LLC (CNH). Prior to the accident, Peter Smith, the owner of the post hole digger, had removed a plastic safety shield from the machine after years of use had left the shield damaged beyond repair. Jessica brought a products liability lawsuit against the manufacturer, distributor and seller and a negligence claim against Smith.

Following a trial in a Niagara County court, the jury found that the post hole digger was defectively designed and apportioned liability in part as follows: 35% to the manufacturer CNH, 30% to the distributor SMC and 30% to Smith. The jury awarded damages to Jessica of just over $8.8 million.

New York’s highest court has rejected an appeal by the manufacturer and distributor and affirmed the judgment in Jessica’s favor. Hoover v. New Holland North America, Inc.,— N.E.3d —- (N.Y. April 01, 2014). On appeal, the manufacturer and distributor argued the case should have never reached a jury because they should have been granted summary judgment based on the product being “substantially modified” when Smith removed the safety shield. The court of appeals held that Jessica presented sufficient evidence of a design defect to raise a question for the jury, and thus the trial court had properly denied the motions for summary judgment.

Jessica’s stepfather borrowed the digger and a tractor from Smith, a family friend and grape farmer, to dig holes for a backyard fence. Jessica was helping her stepfather when her jacket got caught in the digger’s rotating driveline, dragging her into the machine. By the time her stepfather disengaged the digger, her jacket and hair were wrapped around the driveline over the protruding nut and bolt at the U-joint connection. As he unwound her jacket from the driveline, Jessica’s stepfather could see that her jacket’s lower pocket had caught on the protruding nut. Jessica’s right arm was severed above the elbow; she also sustained fractures to her left scapula, left clavicle, and right humerus.

It was undisputed that Jessica would not have been injured if an intact shield had been in place on the date of the accident. Under New York law, a manufacturer who has designed and produced a safe product will not be liable for injuries resulting from substantial alterations or modifications of the product by a third party which render the product defective or otherwise unsafe. Thus, the manufacturer and distributor argued that Smith’s failure to replace the broken shield constituted a substantial modification freeing defendants of liability. Defendants argued that that the digger was safe when it was sold and that Smith made it dangerous by removing the shield and failing to replace it.

Jessica responded to the motions for summary judgment with an affidavit by Thomas Berry, a mechanical engineer. Berry averred that any safety shield affixed to a farming implement must “be designed to last the life of the product considering the foreseeable use and misuse of the product and its use within the environment.” Berry opined that the plastic shield used on the digger was “inadequately tested” and “not reasonably safe” because it failed after two to three years of “normal use,” during which it was foreseeable that the shield would contact the ground and become damaged. Berry felt it was foreseeable that the average farmer would not replace a broken shield and that this reality should have prompted the manufacturer to use an alternative design. Instead of the plastic shield, the digger could have been designed and manufactured with “an integral guard” that, if removed, would render the digger inoperable, or a “rugged steel shield” capable of lasting the life of the digger. Berry further opined that neither of these design alternatives would have impaired the functionality of the digger or significantly increased its cost of production.

The Court of Appeals agreed with Jessica that Smith’s failure to replace the shield could be regarded as pointing to a failure on defendants’ part in selling and distributing the digger with a defectively designed shield. One of Defendant’s witnesses admitted that it was possible that an owner would not replace a broken shield. Berry opined that the digger should have incorporated a shield that accounted for this “foreseeable” event.

Smith testified that he did not replace the shield before the accident because it was “only going to get bent up, broke up, and tore off again.” Thus, a jury could determine that Smith removed the shield not to alter or adapt the machine to his own purposes, but because its “functional utility” had already been destroyed. The Court of Appeals stated that “[a]lthough 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.”

Ultimately, the Court of Appeals determined that the manufacturer and distributor failed to conclusively establish that Smith had “abused” the digger. The court stated that “[u]sing the digger to drill thousands of post holes per year appears to fall squarely within the intended use of that product, and nothing in the record conclusively shows at what point a properly designed shield would be expected to wear out and require replacement under these circumstances.” In fact, two CNH engineers agreed that a safety shield should last the lifetime of the product absent abuse. Thus, “[w]ithout definitive evidence that such ‘abuse’ occurred here, defendants could not prevail on summary judgment based on Smith’s failure to replace the shield.” In short, because the trial court properly denied the request for summary judgment, the case was properly submitted to a jury. The judgment for Jessica was affirmed.

Defective products: protect your rights

To successfully bring a claim involving a defective product, clients need an experienced, educated attorney on their side. They also need an attorney with the financial resources to take the case to trial. At Heygood, Orr & Pearson, we have tried hundreds of cases to verdict and have settled hundreds more. In 2010 alone, we negotiated settlements of personal injury and wrongful death claims totaling more than $50 million.

Heygood, Orr & Pearson also has the financial resources to handle personal injury cases from start to finish. In fact, there are many instances in which we invested hundreds of thousands of dollars in a case in order to take it to trial. At Heygood, Orr & Pearson, we are committed to achieving justice for our clients, whatever the cost.

Our firm is AV-rated, the highest legal and ethical rating available from the leading law firm rating service. Our partners Michael Heygood, Jim Orr, and Eric Pearson are all Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. Mr. Heygood and Mr. Orr are additionally Board Certified in Civil Trial Advocacy Law by the National Board of Trial Advocacy. Our partners been voted by their peers as “Super Lawyers” in the state of Texas for several years in a row.*

Contact the lawyers at Heygood, Orr & Pearson for your free case evaluation and to learn more about your legal right to compensation. You can reach us by calling toll-free at 1-877-446-9001, or by following the link to our free legal consultation form.


Michael Heygood, James Craig Orr, Jr. and Eric Pearson were selected to the Super Lawyers List, a Thomson Reuters publication, for the years 2003 through 2014.

by Eric Pearson

Eric Pearson is a licensed attorney and a partner at HO&P who handles commercial and personal injury lawsuits. Eric has been selected to the Super Lawyers List, a Thomson Reuters publication.