Courtroom Success: Saul Wilenksy and Carl J. Schaerf

Members Saul Wilensky and Carl J. Schaerf, together with associate Allison N. Fihma of Schnader Harrison Segal & Lewis were successful in a motion for Summary Judgment in Cuntan v. Hitachi. The lawsuit involves Ioan Cuntan, a Romanian immigrant, who had been employed as a handyman and construction worker. He had significant experience with circular power saws similar to the saw which was at issue in the captioned case. On March 27, 2006, while working as a carpenter for Royal Specialties, plaintiff was cutting cords of plywood using a Hitachi circular power saw. He alleged that he stopped operating the motor and, set the saw down on the ground near him, the saw continued to operate on its own. It moved across the ground with its blade exposed and severely cut his hand. Plaintiff has been unable to work since the day of the accident.

In a 41 page decision, Magistrate Judge Cheryl Pollak of the United States District Court for the Eastern District of New York granted Summary Judgment. In analyzing all causes of action, including negligence, strict liability, breach of warranty, product design defect, failure and/or inadequate warnings, the Court ruled in Hitachi’s favor.

In moving for Summary Judgment, the defense argued that there was a material alteration to the saw which caused the accident. A return spring was missing at the time of the accident. The Court considered the issue of “open and obvious” and the plaintiff’s experience. The significant part of the discussion of warnings is the Court’s decision that warnings were adequate as a matter of law, coupled with her conclusion that plaintiff’s failure to read the warnings meant that no alternative warnings would have made a difference. While the latter concept has been part of New York law for many years, a decision providing a clear statement of the concept is something of a rarity.

Mr. Cuntan also attempted to change his story in material respects in opposition to summary judgment. The Court discusses at length the inappropriateness of the tactic, and strikes the changed testimony.

A full decision is annexed.