| Yun Tung Chow v Reckitt & Colman, Inc. |
| 2010 NY Slip Op 00013 [69 AD3d 413] |
| January 5, 2010 |
| Appellate Division, First Department |
| Yun Tung Chow et al., Appellants, v Reckitt & Colman,Inc., et al., Respondents, et al., Defendant. (And Other Actions.) |
—[*1] Ahmuty, Demers & McManus, Albertson (Christopher Kendric of counsel), for Reckitt &Colman, Inc. and Reckitt & Benckiser, Inc., respondents. Fiedelman & McGaw, Jericho (JamesK. O'Sullivan of counsel), for Malco Products, Inc., respondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered March 14, 2008, which,to the extent appealed from, as limited by the briefs, granted defendants' motion for summaryjudgment dismissing the complaint, affirmed, without costs.
Plaintiff Yun Tung Chow sustained an eye injury while using defendants' product, crystallinesodium hydroxide, packaged as a drain cleaner called "Lewis Red Devil Lye." When injured,Chow was attempting to use the lye to unclog a floor drain in the kitchen of the restaurant wherehe worked. A warning printed on the label of the bottle stated that the lye should be used only asdirected. The warning also advised users to "[k]eep face away from can and drain at all times"and that "[m]isuse may result in splash back and serious injury." The label's directions called forthe insertion of only one tablespoon of lye directly into a drain. Despite the warning anddirections, Chow mixed three spoonfuls of lye with three cups of water in an aluminum can.Without using eye protection, another precaution directed by the label, Chow bent over andpoured the mixture into the drain. At that point, caustic liquid splashed back into Chow's face,causing the injury. The relevant negligence and strict liability causes of action are based ontheories of inadequate warning and design defect. The court properly dismissed the inadequatewarning claims. Chow testified that he made no attempt to read or to obtain assistance in readingthe label; accordingly, any purported inadequacies in the product's labeling were not asubstantial factor in bringing about the injury (see Perez v Radar Realty, 34 AD3d 305, 306 [2006]; Sosna vAmerican Home Prods., 298 AD2d 158 [2002]; Guadalupe v Drackett [*2]Prods. Co., 253 AD2d 378 [1998]).[FN*]
Plaintiffs base their design defect claim upon lye's propensity to cause splashback. "[A]defectively designed product is one which, at the time it leaves the seller's hands, is in acondition not reasonably contemplated by the ultimate consumer and is unreasonably dangerousfor its intended use; that is one whose utility does not outweigh the danger inherent in itsintroduction into the stream of commerce" (Voss v Black & Decker Mfg. Co., 59 NY2d102, 107 [1983] [citation and internal quotation marks omitted]).
On a summary judgment motion in a products liability case, "if a defendant comes forwardwith any evidence that the accident was not necessarily attributable to a defect, the plaintiff mustthen produce direct evidence of a defect" (Sideris v Simon A. Rented Servs., 254 AD2d408, 409 [1998] [citation and internal quotation marks omitted]). In a design defect case, theevidence a plaintiff is required to produce must establish "that the product, as designed, was notreasonably safe because there was a substantial likelihood of harm and it was feasible to designthe product in a safer manner" (Voss at 108). Defendants have met their burden bymaking a prima facie showing that Chow's failure to heed the product warning was the soleproximate cause of the accident (see e.g. Guadalupe, 253 AD2d at 378; Sabbatino vRosin & Sons Hardware & Paint, 253 AD2d 417 [1998], lv denied 93 NY2d 817[1999]).
To meet their own burden, plaintiffs rely upon the affidavit of Meyer Rosen, a chemist andchemical engineer, who opines that Red Devil Lye is unreasonably dangerous and has a knownpropensity to cause splashback. Rosen next posits that nothing Chow did caused his injury. Thisaspect of Rosen's opinion lacks probative value because it omits critical discussion of Chow'suse of more than the recommended one tablespoon of lye as well as his failure to keep his faceaway from the drain per the label's instructions. The omission is significant because amanufacturer need not incorporate safety features into its product so as to guarantee that no harmwill come to every user no matter how careless or reckless (see Robinson v Reed-PrenticeDiv. of Package Mach. Co., 49 NY2d 471, 481 [1980]). Rosen also opines that a saferalternative to the product can be created by diluting it to a three-percent-to-five-percent sodiumhydroxide composition. How he arrived at these percentages is unexplained. Also, without citinga basis for his opinion, Rosen simply concludes that his recommended dilution of the productwould provide drain cleaning power strong enough to open clogged drains although it wouldtake "somewhat longer to do the job." Similarly unsupported is Rosen's postulation that bottlinglye in a water-based solution would not change its chemical composition or render it ineffective.In considering the feasibility of a safer alternative design, "it must be recognized that twodifferently designed products that . . . are generally similar in function, maynonetheless yield results so different in quality as to make it impossible to characterize thedesign of the safer product as a feasible alternative to the design of the more hazardous product"(see Rose v Brown & WilliamsonTobacco Corp., 53 AD3d 80, 84 [2008], affd sub nom. Adamo v Brown & Williamson Tobacco Corp., 11 NY3d545 [2008], cert denied 558 US —, 130 S Ct 197 [2009]). Rosen's affidavit isinsufficient to raise a triable issue of fact because it does not set forth the [*3]foundation for his conclusion that his suggested alternatives arefeasible (cf. David v County ofSuffolk, 1 NY3d 525 [2003]). As such, the affidavit falls short of explaining how theproduct can feasibly be made safer, as required by Wengenroth v Formula Equip. Leasing, Inc. (11 AD3d 677, 680[2004]), a case cited by the dissent.
Rosen's choice of source materials is also dubious. Rosen cites a 1970 proposal by the Foodand Drug Administration for an amendment of the FHSA so as to have liquid drain cleanersconsisting of 10% or more of sodium hydroxide listed as banned hazardous substances. By itsown terms, however, the proposal was not aimed at preventing splashback. Its purpose was tocurb "serious injuries and some deaths following accidental ingestion" of liquid drain cleaners bychildren under five years of age. Rosen also cites a 1989 letter to the Consumer Product SafetyCommission from the Association of Trial Lawyers of America. It should go without saying thatin the field of chemistry, a letter from a bar association would not fall within the "professionalreliability" exception to the rule that an expert's opinion must be based upon facts in the recordor personally known to the expert (see e.g. Hambsch v New York City Tr. Auth., 63NY2d 723, 725-726 [1984]). We have considered plaintiffs' remaining contentions and find themwithout merit. Concur—Catterson, J.P., McGuire and DeGrasse, JJ.
Moskowitz and Freedman, JJ., dissent in a memorandum by Freedman, J., as follows: Iwould reverse and deny summary judgment to defendants because plaintiffs have raised an issueof fact whether defendants' drain cleaning product, Lewis Red Devil Lye, was defectivelydesigned.
Plaintiff Yun Tung Chow was seriously burned and blinded in one eye after Red Devil Lyesplashed back onto his face while he was using it to clean a clogged floor drain at a restaurantwhere he was employed. Red Devil Lye was a powdered substance made of 100% sodiumhydroxide, which is a powerful caustic agent capable of dissolving organic tissue by chemicalaction. Chow, who had immigrated to this country 11 years earlier and could not read English,testified that he had used Red Devil Lye numerous times before, but was unable to read thedirections and warnings on its label, which instructed users to pour one tablespoon of Red DevilLye directly into the clogged drain. Instead, since only about three spoonfuls of Red Devil Lyewere left in the container, Chow put the remainder into an aluminum can, mixed in about threecups of water, and poured the mixture down the drain. When Chow bent over the drain toexamine it, the contents spouted back onto his face and injured him.
I agree with the majority that the motion court properly dismissed plaintiffs' productsliability claim based on the theory of inadequate warning. The Red Devil Lye container waslabeled "poison," bore a picture of a skull and crossbones, and warned users to wear eyeprotection when using the product. The label warned of the risk of splashback if Red Devil Lyewas used improperly, and that physical contact with the product could cause burning orblindness. Since Chow testified that he did not read the label or ask another person to read it tohim, any purported inadequacies in the product's labeling were not a substantial factor inbringing about the injury (see Perez vRadar Realty, 34 AD3d 305, 306 [2006]; Sosna v American Home Prods., 298AD2d 158 [2002]; Guadalupe v Drackett Prods. Co., 253 AD2d 378 [1998]).[*4]
While defendants did not meet their burden ofdemonstrating that the labeling on the can complied with the Federal Hazardous Substances Act(15 USC § 1261 et seq.) so as to preclude a state law improper labeling claim(see Guadalupe at 378), additional labeling would not have prevented Chow's injury.
However, plaintiffs raised a triable issue of fact with respect to their strict products liabilityclaim based on defective design, by introducing expert testimony that Red Devil Lye was toodangerous to be marketed for use by general consumers rather than professionals. To establish aprima facie case for a defective design claim, the plaintiff must show that the manufacturermarketed a product that was not "reasonably safe" because of its defective design, and that thedefective design was a substantial factor in causing injury (Voss v Black & Decker Mfg.Co., 59 NY2d 102, 107-109 [1983]). A defectively designed product is deemed not to bereasonably safe where a reasonable person, knowing at the time of manufacture about the defect,would conclude that the inherent risk of introducing the product into the stream of commerceoutweighed its utility (see id. at 108). A plaintiff can proffer expert testimony toestablish that a product was defectively designed (see Warnke v Warner-Lambert Co., 21 AD3d 654, 656 [2005]).The risk-utility analysis may also involve a determination as to whether there is a feasiblealternative design that would make the product safer. "Where . . . a qualified expertopines that a particular product is defective or dangerous, describes why it is dangerous, explainshow it can be made safer, and concludes that it is feasible to do so, it is usually for the jury tomake the required risk-utility analysis" whether the product was reasonably safe (Wengenroth v Formula Equip. Leasing,Inc., 11 AD3d 677, 680 [2004]).
Plaintiffs' expert Meyer R. Rosen, a chemical engineer and chemist, as well as a Fellow ofboth the American Institute of Chemists and the Royal Society of Chemistry, opined that RedDevil Lye was unreasonably dangerous and had a known propensity to react explosively withwater within a clogged drain and cause splashbacks. He averred that pouring the mixture of RedDevil Lye and water down the drain caused a chemical reaction that generated enough heat toboil the water and produce steam pressure, which rapidly expanded the caustic solution and otherdrain contents. Since the drain remained clogged, Rosen stated, the contents expanded"explosively" out of the drain onto Chow. He explained that ordinarily Mr. Chow would haveseen bubbling in the aluminum container in which he mixed the lye with water, which wouldhave alerted him to a potential danger, but this did not happen. Thus, Rosen concluded that itwas the pressure from the steam pipe and not the failure to follow the specific directionsconcerning either the amount of the product used or direct insertion into the drain that caused theinjury.
While Rosen mentions the two 1970 Food and Drug Administration proposals to ban suchsubstances and the 1989 letter to the Consumer Product Safety Commission, he does not, as themajority suggests, rely upon them for his opinion. Rather he sets forth what appear to be a clearexplanation for the chemical reaction that occurred and recommendations for plausiblealternatives, some of which are similar to products on the market. To characterize the utility ofthe suggested alternatives as "unsupported" or "conclusory" is unsound, because such productseither exist or may be easily manufactured.
Rosen acknowledged that Red Devil Lye was an effective drain cleaner, but added that "therisk far outweighs its utility," since "the chemical and toxicological properties of [sodiumhydroxide] make it among the most dangerous chemicals known." He further opined thatdefendants could have made a safer alternative by diluting the sodium [*5]hydroxide to a 3%-to-5% lye solution, and that this solution "wouldstill be strong enough to open clogged drains, albeit taking somewhat longer to do the job." Asanother alternative, Rosen suggested selling a premade lye and water solution, which "would notchange the chemical and . . . would still be as effective."[FN1]He concluded that in his opinion Red Devil Lye was too dangerous to be marketed for use by laypeople.[FN2]
Defendants claim that the diluted sodium hydroxide products that plaintiffs' expert proposedas alternatives are not reasonably equivalent to Red Devil Lye because they would take longer tounclog drains. As support for their position, defendants cite to Felix v Akzo NobelCoatings (262 AD2d 447 [1999]) and Adamo v Brown & Williamson Tobacco Corp. (11 NY3d 545[2008], cert denied 558 US —, 130 S Ct 197 [2009]), in which proposedalternatives to a defective product were found not to be equivalents. Both cases aredistinguishable. The product in question in Felix was a solvent-based, quick-dryinglacquer floor sealer that was highly flammable.[FN3]The plaintiff argued that a safer, water-based lacquer sealer could have been substituted, but theCourt held that the water-based sealer was a functionally different product from solvent-basedlacquer because it took hours longer to dry, differed greatly in price, and produced results thatdid not match solvent-based lacquer in the appearance, hardness, and scratch resistance of thefinish (262 AD2d at 448-449). In this case, the functional difference between Red Devil Lye andthe safer dilutions would be minimal. The dilutions would be as effective at accomplishing RedDevil Lye's essential purpose of unclogging drains, and would at most take somewhat longer towork.
In Adamo, the Court of Appeals held that "light" cigarettes are functionally differentproducts from regular cigarettes containing higher levels of nicotine because it found that thefunction of cigarettes is to give pleasure to smokers, and that light cigarettes are less satisfying tosmokers than regular cigarettes. Adamo is similarly inapposite because dilutions wouldnot impair Red Devil Lye's function of unclogging drains. Moreover, although cigarettes maycause harm over a long period of time, they do not present the immediate type of danger presenthere.[*6]
Accordingly, I would reinstate plaintiffs' claim soundingin strict products liability and let the finder of fact determine whether Red Devil Lye's utilityoutweighed its inherent danger.
Footnote *: Defendants also argue that theinadequate warning claims are precluded by the Federal Hazardous Substances Act (FHSA) (15USC § 1261 et seq.). We decline to consider this argument inasmuch as it is madefor the first time on appeal (seeOmansky v Whitacre, 55 AD3d 373, 374 [2008]).
Footnote 1: As a final alternative, Rosenproposed that defendants sell Red Devil Lye, safety goggles, a face shield and rubber glovespackaged together as a single product. However, a product that included those safety itemswould cost so much more than Red Devil Lye alone that the two cannot be deemed functionalequivalents.
Footnote 2: As further support for theirclaim, plaintiffs also offered a 1989 letter from the Association of Trial Lawyers of America tothe United States Consumer Product Safety Commission stating that the Association knew of 21instances in which the use of Red Devil Lye had caused serious injuries from splashbacks, andthat many safer drain cleaners were on the market. The letter requested that the SafetyCommission remove Red Devil Lye from consumer markets and issue a recall.
Footnote 3: This Court cited Felixwith approval in Perez v RadarRealty (34 AD3d 305, 306 [2006]), which also involved a lacquer-based sealer.