Smith v. Minster Machine Co.

Balio, J. (dissenting in part).

I disagree with the majority’s conclusion that factual issues exist with respect to defendant’s liability for failure to warn. Thus, I respectfully dissent in part and vote to affirm the order insofar as it dismissed that portion of the complaint seeking to impose liability for failure to warn.

Plaintiff testified at an examination before trial that she "had been around machines enough to know you don’t stick your hand in there”, meaning into the point of operation. There were some 15 power presses at her place of employment, and, prior to the accident, she had been instructed "don’t intentionally, like, when it’s coming down, put your hand in there” and *895"to keep your hands out of the point of operation”. There is no evidence that plaintiff by reason of her age lacked the ability to appreciate what she acknowledged was "common sense”. The record indicates that plaintiff was familiar with machines and that, in light of her experience and training, understood that she was not to put her hand into the point of operation while the press was cycling. Any warnings that defendant might have provided merely would have informed plaintiff of a danger that she already appreciated, and thus, as a matter of law, the lack of a suitable warning notice was not a proximate cause of the accident (see, Lonigro v TDC Elecs., 215 AD2d 534, 535-536; Petrie v B. F. Goodrich Co., 175 AD2d 669; Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55, 65). (Appeal from Order of Supreme Court, Monroe County, Ark, J.—Summary Judgment.) Present—Denman, P. J., Pine, Fallon, Doerr and Balio, JJ.