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OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined there was a question of fact whether, Burdick, the owner of a farm and a hay conveyor, was liable for plaintiff’s injury from catching her finger in the unguarded conveyor chain. Burdick, as part of an oral agreement, allowed the Fosters to use the hay conveyor on Burdick’s property and was aware that persons, like plaintiff, would assist the Fosters. Plaintiff was a volunteer, not an employee. The court found  that Burdick, as the owner of the farm and the conveyor, owed a duty of care to the plaintitff and there was a question of fact whether the conveyor presented a dangerous condition that was not open and obvious. The Fosters owed no duty of care to plaintiff. But the Fosters, who now own the conveyor, were required to allow plaintiff to inspect the conveyor in connection with the lawsuit:

It is well established that, “[b]ecause a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” … . “New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition” … . “The duty of a landowner to maintain [his or her] property in a safe condition extends to persons whose presence is reasonably foreseeable by the landowner” … . “[A] landowner’s duty to warn of a latent, dangerous condition on his [or her] property is a natural counterpart to his [or her] duty to maintain [the] property in a reasonably safe condition” … . “It is well settled that both owners and occupiers owe a duty of reasonable care to maintain property in a safe condition and to give warning of unsafe conditions that are not open and obvious” … . …

Additionally, where, as here, “the defendant [property] owner provides . . . allegedly defective equipment, the legal standard [with respect to negligence] is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof’ . . . , because in that situation the defendant property owner is possessed of the authority, as owner, to remedy the condition’ of the defective equipment” … . …

The Fosters, at most, “had a license to [perform hay baling work on Burdick’s farm with his hay conveyor], but the right to use the [farm and hay conveyor] does not establish control or give rise to a duty to warn”… . “In the absence of any authority to maintain or control the [farm or the hay conveyor], or to correct any unsafe condition, [the Fosters] owed no duty of care with respect to any unsafe condition on [Burdick’s] premises” … . Breau v Burdick, 2018 NY Slip Op 07851, Fourth Dept 11-16-18

NEGLIGENCE (OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT))/PRODUCTS LIABILITY  (OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT))/DUTY OF CARE (NEGLIGENCE, PRODUCTS LIABILITY, OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT))

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PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF’S UNTIMELY OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined the products liability and negligence causes of action against the manufacturer of a motorcycle helmet properly survived summary judgment. There are two parts to securing the helmet with a strap—a D-ring fastener and a snap. Plaintiff used only the snap and was injured, allegedly as a result of the failure of the helmet to protect him. The court noted that plaintiff's untimely response to the defendants motion for summary judgment was properly considered because defendants' were able to reply to it and the demonstration of prejudice was insufficient:

The court correctly rejected defendants' contention that the danger of failing to secure the helmet with the D-rings was open and obvious as a matter of law and that therefore it did not render the helmet unfit for its intended use and they had no duty to warn of the danger or to design the helmet differently. That a danger is open and obvious does not preclude a design defect claim … . Defendants similarly failed to establish that the design of the chin strap did not breach their warranties of fitness and merchantability … .

While there is no duty to warn of a hazard that is open and obvious and “readily apparent as a matter of common sense” … , the record presents issues of fact as to whether the danger of failing to use the D-rings and using only the snap fastener to secure the helmet is open and obvious … . Narvaez v Wadsworth, 2018 NY Slip Op 06475, First Dept 10-2-18

PRODUCTS LIABILITY (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/NEGLIGENCE (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/CIVIL PROCEDURE (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/OPEN AND OBVIOUS (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/WARN, FAILURE TO (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/MOTORCYCLE HELMET (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/HELMET ​(PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT)/WARRANTY OF MERCHANTABILITY (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))

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FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the manufacturer of a transformer base was entitled to summary judgment in this failure to warn action. Plaintiffs decedent fell asleep at the wheel, “drove up an embankment, struck a tree, rolled back down the embankment, and ran over a transformer base, which ruptured the gas tank of his vehicle, causing a fire. The decedent was unable to extricate himself and his two infant children from the vehicle, and they all died. “

The plaintiff alleged that when a pole is attached to the transformer base, the transformer base is designed so that it will break away from its concrete base when it is struck by a vehicle in order to minimize damage to the vehicle. The plaintiff alleged that when the pole was removed from the subject transformer base prior to the accident, the transformer base lost this “breakaway” feature. The plaintiff alleged that the manufacturer of the transformer base and all other entities in the supply chain had a duty to warn the DOT that the transformer base would lose its breakaway capability if it was not attached to a pole. * * *

To recover on a strict products liability cause of action based on inadequate warnings, a plaintiff must prove causation, i.e., that if adequate warnings had been provided, the product would not have been misused… . In other words, “[f]or there to be recovery for damages stemming from a product defective because of the inadequacy or absence of warnings, the failure to warn must have been a substantial cause of the events which produced the injury” … . “Generally, it is for the trier of fact to determine the issue of proximate cause”… . “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” … . …

The transformer base at issue in this case was located beyond the clear zone, which is defined as “an area without fixed objects that is adjacent to a highway and intended to provide safe passage and a recovery area for vehicles that veer off the roadway” … . [Defendants] demonstrated that, as per DOT policy, light poles located beyond the clear zone were not required to have breakaway transformer bases and that the loss of the breakaway feature would not have affected the DOT's decision to remove the light pole from the subject transformer base prior to the accident. Accordingly, [defendants] established, prima facie, that the failure to warn of the loss of the breakaway feature was not a substantial cause of the events which produced the injuries alleged here … . Reece v J.D. Posillico, Inc., 2018 NY Slip Op 06048, Second Dept 9-12-18

PRODUCTS LIABILITY (FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FAILURE TO WARN (PRODUCTS LIABILITY, FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/WARN, FAILURE TO (PRODUCTS LIABILITY, FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (PRODUCTS LIABILITY, FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/HIGHWAYS AND ROADS  (PRODUCTS LIABILITY, FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT).

The Third Department determined defendants’ motion for summary judgment on the “failure to warn” cause of action in this products liability case was properly denied. Plaintiff’s clothing caught fire when she stood near a propane heater manufactured and sold by defendants:

Plaintiff submitted the pertinent ANSI standard for warning labels on unvented propane heaters, which specifies certain language to be used in such warnings and establishes minimum heights for the warning’s lettering and a minimum distance at which the warnings must be legible. Plaintiff further submitted photographs of the warning label on an exemplar heater matching the one at issue here, supported by an affidavit from the professional photographer who took the pictures…. Plaintiff’s counsel asserted in his affirmation that these letter heights are significantly smaller than the ANSI standard’s minimum requirements and are therefore too small and inconspicuous to comply with that standard or to constitute an adequate warning label. * * *

… .[P]laintiff’s testimony that she did not look at the heater immediately before the accident does not establish as a matter of law that she would not have seen and read sufficiently conspicuous warnings on prior occasions and heeded them at the time of the accident. Palmatier v Mr. Heater Corp., 2018 NY Slip Op 05238, Third Dept 7-12-18

PRODUCTS LIABILITY (FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT))/FAILURE TO WARN (PRODUCTS LIABILITY, FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT))/PROPANE HEATER (PRODUCTS LIABILITY, FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT))

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FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the Macy’s defendants did not eliminate all triable issues of fact concerning whether Macy’s sold the plaintiff’s skirt which caught fire from a heater. Although plaintiff could not identify the store where the skirt was purchased, Macy’s could not rely on the gaps in plaintiff’s proof as the basis for summary judgment. There was testimony from a buyer which indicated the skirt could have been purchased at a Macy’s store:

The Macy defendants failed to meet their initial burden of establishing that they did not sell the skirt at issue … . The Macy defendants correctly note that neither plaintiff nor her mother could identify the specific store from which the skirt was purchased. Merely pointing to gaps in plaintiff’s proof, however, does not suffice for the Macy defendants to meet their threshold burden … .

Furthermore, plaintiff testified that the skirt had an “Angie” label on it. Although a product director employed by the Macy defendants, who was previously a buyer, testified that she purchased Angie-labeled skirts from Star of India and that the Macy defendants sold skirts that were purchased from Star of India, her testimony was equivocal as to whether the type of skirt at issue was ever sold by the Macy defendants. In view of the foregoing evidence, the Macy defendants failed to eliminate all triable issues of fact as to whether they sold the skirt and, therefore, their motion should have been denied regardless of the sufficiency of the [other] defendants’ opposition … . Palmatier v Mr. Heater Corp., 2018 NY Slip Op 02382, Third Dept 4-5-18

​PRODUCTS LIABILITY (FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, PRODUCTS LIABILITY, FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT))/SUMMARY JUDGMENT (PRODUCTS LIABILITY, FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT))/EVIDENCE (SUMMARY JUDGMENT, PRODUCTS LIABILITY, FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT))

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SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF EMPLOYEE, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined that the sophisticated intermediary doctrine did not apply as a matter of law to this failure to warn case. Under the doctrine the manufacturer of the silica product at issue would be under a duty to warn plaintiff’s employer, a sophisticated intermediary, but not the plaintiff:

… [I]t is not a complete defense to a failure to warn claim against a product manufacturer under New York law that an injured worker’s employer was adequately warned or otherwise knowledgeable of the dangers of the product… , or that the employer may have been in the best position to give the warning at issue … . Instead, evidence that an employer had knowledge of a hazard or was better able than the manufacturer to provide a warning to the injured worker is relevant to whether a manufacturer satisfied its duty to provide adequate warnings, which is typically a question of fact … . * * *

… [W]e decline to recognize the sophisticated intermediary doctrine on the facts of this case, and we conclude that there is a triable issue of fact whether defendants provided adequate warnings to the injured workers … . Rickicki v Borden Chem., 2018 NY Slip Op 01829, Fourth Dept 3-16-18

PRODUCTS LIABILITY (SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT))/NEGLIGENCE (PRODUCTS LIABILITY, FAILURE TO WARN, SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT))/SOPHISTICATED INTERMEDIARY DOCTRINE (PRODUCTS LIABILITY, FAILURE TO WARN, SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT))/WARN, FAILURE TO PRODUCTS LIABILITY, FAILURE TO WARN, SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT))

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QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT).

The Third Department reversed (modified) Supreme Court’s dismissal of products liability complaint against the distributor (At Last Sportswear) and seller (Walmart) of plaintiff’s clothing which caught fire. The court also determined the Enerco defendants (the manufacturer, designer, and distributor of the heater which ignited the clothes) were aggrieved by the order, based upon joint liability principles, and therefore could appeal it:

Although liability can be apportioned between any tortfeasors, whether they are codefendants or nonparties, if an alleged tortfeasor was a codefendant whom the court had dismissed from the case, the law of the case doctrine would preclude the remaining defendants from introducing at trial any evidence regarding the same type of defect or error by that alleged tortfeasor that was previously litigated … . Thus, the Enerco defendants were entitled to challenge motions by any codefendants seeking to be released from the action, they were aggrieved by any orders granting dismissal and they could, therefore, appeal any such orders. …

[At Last’s and Walmart’s] expert opined that the dress materials complied with and exceeded the requirements of the Federal Flammable Fabrics Act (15 USC § 1191 et seq. [hereinafter FFA]) and accompanying regulations (16 CFR part 1610) for general wearing apparel, as well as the industry standard, that the dress was reasonably safe and suitable for its intended use, that it was not defective in any manner and that this type of 100% cotton dress was a standard commodity.  …

… [T]he Enerco defendants submitted an affidavit from their own expert, who opined that the FFA standards are insufficient to determine whether a garment is safe because it addresses only some factors affecting flammability of the fabric but not the design of the garment itself … . He supported his opinion with literature in which industry professionals addressed the inadequacy of the FFA standards to protect consumers. These competing expert opinions present a triable issue of fact regarding whether a design defect exists … . …

The parties’ experts disagreed as to whether labels warning about the dress’s flammability and the need to be cautious around heat sources were appropriate for such general wearing apparel and existed in the United States market for this type of garment. Thus, factual issues remain regarding whether At Last Sportswear and the Wal-Mart defendants breached a duty to warn. Palmatier v Mr. Heater Corp., 2018 NY Slip Op 01368, Third Dept 3-1-18

PRODUCTS LIABILITY (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/CIVIL PROCEDURE (JOINT TORTFEASORS, (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/APPEALS (JOINT TORTFEASORS, (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/NEGLIGENCE (PRODUCTS LIABILITY, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/JOINT TORTFEASORS (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))

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QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT).​

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment should not have been granted. Defendants sold used gas pumps to a scrap yard, stating that the pumps had been drained of gasoline. When one of the pumps was sent to the shredder it exploded, injuring plaintiff. The other pumps were found to have one to two gallons of gasoline in them. The Fourth Department held there was a question of fact whether defendants were casual sellers of gas pumps and therefore did not owe plaintiff a duty of care. The Fourth Department further held that, even if defendants were casual sellers of gas pumps, there was a question of fact whether they owed a duty of care to plaintiff because the hazard was not open and obvious:

Although it is well settled that casual or occasional sellers of products do “not undertake the special responsibility for public safety assumed by those in the business of regularly supplying those products”… , the evidence submitted by defendants in support of their motion failed to establish that their sale of gas pumps was “wholly incidental” to their business of installing and servicing petroleum distribution systems … .

Even assuming, arguendo, that defendants were merely casual sellers of used gas pumps, we cannot conclude as a matter of law that defendants owed no duty to plaintiff. Even casual sellers owe a duty to warn of dangers that are not open and obvious or readily discernable … . Rosario v Monroe Mech. Servs., Inc., 2018 NY Slip Op 00732, Fourth Dept 2-2-18

NEGLIGENCE (QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/CASUAL SELLERS (NEGLIGENCE, QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/OPEN AND OBVIOUS (NEGLIGENCE, DUTY TO WARN, QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/WARN, DUTY TO (NEGLIGENCE, OPEN AND OBVIOUS, QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/PRODUCTS LIABILITY  (QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))

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DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT).

The Third Department determined defendant Enerco was entitled to discovery of information demonstrating the retail distribution of the type of clothes distributed by defendant Star of India which had caught fire from a heater manufactured or distributed by defendant Enerco. The court held that Enerco did not have to rely on a printout created by Star of India purporting to demonstrate Star of India did not distribute the clothes in question. The court also held that Enerco’s motion to amend its answer was properly denied. There was evidence Enerco had led parties to believe it was not going to assert the cross-claims it sought to include in the amended answer, thereby limiting questioning during a deposition:

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… [T]he Enerco defendants do not rely on mere speculation for their discovery demand. Based upon this, together with the fact that the search results are entirely dependent upon the search terms that are used and that [the party] was unable to explain how the results she relied upon were generated, we find that the complete contents of the database from 2004 to 2009 “may be fairly characterized as useful and reasonable” … .Furthermore, our review of the record does not suggest that disclosure of the contents of the database for this specific period would be unnecessarily onerous or impose any special burden on Star of India … . …

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The Enerco defendants asserted that their 2½-year delay in moving for leave to amend their answer was due to the fact that they were operating ‘under the incorrect assumption that they had asserted cross claims against every co-defendant.’ This proffered excuse, however, is belied by the affidavit of Amy Weissman, an attorney for one of the codefendants. The Weissman affidavit makes clear that the Enerco defendants induced the other defense attorneys in the second action not to ask questions at the deposition of the Enerco defendants’ witnesses based on the explicit representation by counsel for the Enerco defendants that they had no cross claims against those codefendants. Thus, we view the proffered excuse to be disingenuous.

… These defendants have relied upon the Enerco defendants’ representation to their prejudice by forgoing questioning of the Enerco defendants’ witnesses, and they have been hindered in the preparation of their case … . Palmatier v Mr. Heater Corp., 2017 NY Slip Op 08918, Third Dept 12-21-17

 

CIVIL PROCEDURE (DISCOVERY, MOTION TO AMEND ANSWER, DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/DISCOVERY (DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/ANSWER (MOTION TO AMEND,  DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/ATTORNEYS (DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS PRECLUDED AMENDMENT OF ANSWER (THIRD DEPT))

,

PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kern, determined plaintiffs were entitled to summary judgment on their defective design cause of action in this products liability case. The product is a “fire pot” which burns a gel poured into a cup. Apparently the gel exploded. There was expert testimony that it is difficult to see whether the gel is burning and reloading the gel while it is burning will cause it to explode:

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… [P]laintiffs have established, as a matter of law, that the product at issue, consisting of the fire pot and the fuel gel, was defectively designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiffs’ injuries. Plaintiffs have submitted evidence, including expert affidavits, demonstrating that the product has minimal utility, serving a purely decorative purpose, that it poses an extraordinary safety risk in that it can explode and propel flaming fuel gel onto persons in its vicinity and cause them to catch fire when a person attempts to light the fire pot with the fuel gel while the fire pot is already lit or hot, that when the fuel gel in the fire pot is lit but burns down, it has a nearly invisible flame, which can mislead users into perceiving the flame as extinguished and the fuel gel exhausted, that the viscosity of the fuel gel makes it easily adherent to skin and clothing which makes it very difficult to extinguish and that alternative and safer designs are available in that instead of designing the fire pot with a deep-seated stainless steel cup into which the fuel gel is poured, the product could have been designed using fuel gel in nonrefillable metal cans or cartridges that get inserted directly into the fire pot, which would eliminate the design defect that causes an explosion upon refueling the fire pot with the fuel gel as well as the related dangers flowing from the fuel gel flame being difficult to visually discern when the fuel gel burns down and the viscosity of the fuel gel. Finally, the experts opined that the defective design of the product was a substantial factor in causing plaintiffs’ injuries.

In opposition, defendant has failed to raise an issue of fact as to whether the product was designed in a reasonably safe manner or whether the defective design was a substantial factor in causing plaintiffs’ injuries.  M.H. v Bed Bath & Beyond Inc., 2017 NY Slip Op 07790, First Dept 11-9-17

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PRODUCTS LIABILITY (PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT))/NEGLIGENCE (PRODUCTS LIABILITY, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT))/DESIGN, DEFECTIVE (PRODUCTS LIABILITY, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT))

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