The state’s highest court has upheld an $8.8 million damage award for a Cambria woman who lost her right arm in a farm accident almost a decade ago.
Jessica Bowers, now 25, was injured Oct. 2, 2004, when the pocket of her coat became caught on a bolt protruding from the drive shaft of a post-hole digger, an auger-like tool that Bowers’ late stepfather, Garry S. Hoover, had borrowed from Cambria farmer and winery owner Peter A. Smith.
The New Holland brand digger, which Smith had purchased in 1996, originally had a safety shield that covered the bolt, but Smith had removed it because it had been wrecked over years of use.
The Court of Appeals ruled 6-1 this month that the original trial judge in Niagara County, State Supreme Court Justice Richard C. Kloch Sr., had ruled correctly in denying summary judgment to the defendants. Kloch’s decision was previously upheld by the Appellate Division of State Supreme Court in Rochester.
The defendants included Smith; Hoover’s estate; the manufacturer, Case New Holland, formerly Ford New Holland; SMC Corp., which designed the machine’s components; Niagara Frontier Equipment Sales, the dealer that sold the digger to Smith; GKN Walterscheid, a company that made the plastic safety shield; and NEAPCO, the supplier of the drive shaft.
Lori Hoover, Bowers’ mother, was the official plaintiff in the lawsuit, but the money will go to Bowers.
John A. Collins of the Lipsitz Green law firm, who handled the appeal, said Bowers will receive some up-front money, but most of it will be paid in annuities.
In September 2011, Kloch ordered the defendants to pay Bowers $676,000 up front. The rest of the money will come in monthly checks that will land in Bowers’ mailbox for as long as 59 years.
“She and we on her behalf are pleased the Court of Appeals upheld the jury verdict,” said Richard P. Weisbeck of Lipsitz Green, who joined with Laraine Kelley to represent Bowers in the trial,
Kloch had reduced the award to $7.9 million on various legal technicalities. Before the jury delivered its verdict April 7, 2011, NEAPCO and GKN Walterscheid had settled with Bowers for $4.6 million. The jury’s award, as revised by Kloch, brought another $3.3 million and allocated 35 percent of the payout to Case New Holland, 30 percent each to Smith and SMC, 3 percent to Hoover and 2 percent to Niagara Frontier Equipment Sales.
The case boiled down to the removal of the safety shield. “The jury found it wasn’t an adequate guard,” Weisbeck said.
“The designers, the manufacturer and the seller were more responsible because there was a defect in the product, as the jury found,” Collins said.
The sides agreed that Bowers wouldn’t have been hurt if the shield was in place, but the Court of Appeals decided that even though Smith decided not to replace the broken shield, his decision demonstrated his conclusion after several years of use that the shield wasn’t any good to begin with.
Justice Robert S. Smith dissented from the decision, arguing that it was unfair to hold a manufacturer liable for post-sale alterations to a product.