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QUESTIONS OF FACT WHETHER THE PLACEMENT OF A PROPANE HEATER IN DEFENDANT’S STORE CREATED A DANGEROUS CONDITION AND WAS A PROXIMATE CAUSE OF PLAINTIFF’S CLOTHING CATCHING FIRE (THIRD DEPT).

The Third Department determined the defendant lessee’s motion for summary judgment in this negligence action based upon the placement of a propane heater in defendant’s store was properly denied. Plaintiff’s clothing caught fire when she stood near the stove:

… [P]laintiff relied upon a section of the then-applicable version of the Fuel Gas Code of New York State providing that an unvented room heater must be installed as directed by the manufacturer (see Fuel Gas Code of NY St § 621.1 [2007]). In turn, the manual for the heater at issue here provided, in accordance with standards established by the American National Standards Institute, that “[d]ue to high temperatures, [the] heater should be kept out of traffic” and should never be installed “in high-traffic areas.” The manual further stated that the heater was intended for supplemental use and should never be installed as a primary heat source. Plaintiff submitted defendant’s deposition testimony that he chose not to read or refer to the manual, although he was aware that it contained instructions about the safe placement of the heater. Significantly, he acknowledged that the heater was the store’s only source of heat. As for whether the heater was kept out of traffic, defendant stated that customers often spent several hours in the store during regularly-conducted gaming tournaments, that customers moving between the bathroom and certain tables and chairs used during these events would “pass right in front of the heater,” and that he had seen people walk past the heater to reach the bathroom and stand in front of it to warm themselves. While violations of rules such as the Fuel Gas Code do not establish negligence per se, they “do[] provide some evidence of negligence” … . Defendant’s testimony thus gave rise to triable issues of fact as to whether the heater’s placement violated the manufacturer’s instructions and whether defendant was negligent in placing it for use in the store. …

Viewing the facts in the light most favorable to plaintiff, as we must, we find that she demonstrated the existence of a triable issue of fact as to whether defendant’s negligence was a proximate cause of her injuries … . Palmatier v Mr. Heater Corp., 2018 NY Slip Op 05250, Second Dept 7-12-18

NEGLIGENCE (QUESTIONS OF FACT WHETHER THE PLACEMENT OF A PROPANE HEATER IN DEFENDANT’S STORE CREATED A DANGEROUS CONDITION AND WAS A PROXIMATE CAUSE OF PLAINTIFF’S CLOTHING CATCHING FIRE (THIRD DEPT))/HEATERS (NEGLIGENCE, QUESTIONS OF FACT WHETHER THE PLACEMENT OF A PROPANE HEATER IN DEFENDANT’S STORE CREATED A DANGEROUS CONDITION AND WAS A PROXIMATE CAUSE OF PLAINTIFF’S CLOTHING CATCHING FIRE (THIRD DEPT))

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