The New York Court of Appeals has ordered a new trial for a global heavy-equipment manufacturer that a Queens County jury found liable in the death of a man crushed by a tree while operating a rented front-bucket loader.

Defending the manufacturer in the second trial will be Goldberg Segalla partners Brendan T. Fitzpatrick, Neil A. Goldberg, and David S. Osterman. Though the firm was not involved in the first trial or the failed appeal that followed, it was retained by the manufacturer to pursue a second appeal and proceeded to turn the case around with two key victories: Brendan, Neil, and David successfully sought leave to take the case to the Court of Appeals, which happens only about three percent of the time. Then Brendan persuaded that court the trial judge erred when he strayed from case law known as the Scarangella defense.

The Scarangella defense is named for the 1999 case Scarangella v. Thomas Built Buses, Inc., in which a school-bus driver named Concetta Scarangella, in response to being struck and injured by a school bus in September 1988, sued the vehicle’s manufacturer. At issue was whether the bus should have had an alarm to signal it was backing up.

Though the Scarangella case ended in July 1999, with the Court of Appeals ruling in favor of the bus manufacturer, the defense strategy it inspired lives on: If a person makes an informed decision not to buy an available safety accessory for a product that sometimes can be safely used without it, the manufacturer cannot later be held liable if the device’s absence is alleged to be a design defect that caused the person’s injury or death.

The Scarangella defense is important for manufacturers of heavy equipment, which is designed to be easily modified to suit many uses and customers. But the case of the front-bucket loader, whose user was crushed to death after he opted not to rent accessory parts of the machine that would have formed a protective enclosure around him, diverged from the precedent-setting bus-driver case. The trial judge accepted the plaintiff’s argument that Scarangella shouldn’t apply to products sold into the rental market and the jury found both the manufacturer and the rental store liable, each for half of $1 million in damages. Though the rental store didn’t appeal the verdict, the manufacturer did. But the Appellate Division Second Department affirmed the trial court outcome with a 10-page decision that changed state law.

It was soon thereafter that the heavy-equipment manufacturer retained Goldberg Segalla, setting the stage for Brendan, Neil, and David to induce a May 9, 2019, Court of Appeals decision that “no such ‘rental market’ exclusion from Scarangella … is appropriate” and defend the manufacturer when it has a second trial.

This article originally appeared in Goldberg Segalla’s Professional Liability Matters. Read the issue here.