| Preston v Peter Luger Enters., Inc. |
| 2008 NY Slip Op 04598 [51 AD3d 1322] |
| May 22, 2008 |
| Appellate Division, Third Department |
| Kevin Preston et al., Appellants, v Peter Luger Enterprises, Inc.,Respondent. |
—[*1] Burke, Scolamiero, Mortati & Hurd, Albany (Thomas J. Reilly of counsel), forrespondent.
Peters, J.P. Appeal from that part of an order of the Supreme Court (Dawson, J.), enteredFebruary 28, 2007 in Essex County, which partially granted defendant's motion for summaryjudgment dismissing the complaint.
In April 2001, plaintiff Lucy Preston purchased a bottle of steak sauce manufactured bydefendant at a grocery store in the Village of Lake Placid, Essex County. Upon attempting toopen the glass bottle, plaintiff Kevin Preston (hereinafter plaintiff) was injured when the neck ofthe bottle broke. Plaintiff and his wife, derivatively, commenced this action sounding in strictproducts liability, breach of implied warranty, negligence and failure to warn. Followingdiscovery, defendant moved for summary judgment dismissing the complaint and plaintiffscross-moved for summary judgment on the breach of implied warranty claim. Supreme Courtgranted summary judgment in favor of defendant as to the strict products liability and negligenceclaims, and denied the remainder of defendant's motion as well as plaintiffs' cross motion.Plaintiffs now appeal from that part of the order which dismissed their causes of action for strictproducts liability and negligence.
Plaintiffs' strict products liability claim is premised upon both a design and manufacturingdefect (see Speller v Sears, Roebuck & Co., 100 NY2d 38, 41 [2003]). For a designdefect to be actionable, "it must be established that the marketed product in question was [*2]designed in such a way that it is not reasonably safe and that thealleged design defect was a substantial factor in causing the [plaintiff's] injuries" (Blandin v Marathon Equip. Co., 9AD3d 574, 576 [2004]; see Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107[1983]). Thus, "[l]iability attaches when the product, as designed, presents an unreasonable riskof harm to the user" (Voss v Black & Decker Mfg. Co., 59 NY2d at 107; seeRobinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479 [1980];Jackson v Bomag GmbH, 225 AD2d 879, 881 [1996], lv denied 88 NY2d 805[1996]).
In support of its motion, defendant proffered the affidavits of Jody Storch, its president, andDale Henderson, a manager in charge of quality assurance at Leone Industries, the bottle'smanufacturer. Henderson averred that the thickness of the bottle well exceeded general industrystandards and controverted the opinion of plaintiffs' expert that the long neck design of the bottlewas defective. Moreover, according to both Henderson and Storch, of the approximately 2.1million bottles of this design manufactured by Leone during the three-year period from 1999 to2001, the time from which defendant began using the bottle design at issue until the date of theaccident, this was the only instance they were aware of where the neck of the bottle broke uponan attempt to open it. Defendant's submissions in this respect were sufficient to meet its initialburden of a prima facie showing of entitlement to summary judgment on the design defect claim(see Garrison v Clark Mun. Equip., 241 AD2d 872, 873 [1997]).
With plaintiffs now obligated to raise a triable issue of fact (see Merritt v Raven Co.,271 AD2d 859, 861 [2000]; Pigliavento v Tyler Equip. Corp., 248 AD2d 840, 841-842[1998], lv dismissed and denied 92 NY2d 868 [1998]), we find that they failed to do so.Their proffered affidavit of Kevin Breen, an industrial engineer specializing in human factors andfailure/performance analysis of various products, contains only generalized statements and bareconclusory assertions that the long neck bottle used has less "load carrying capability" than ashort neck bottle and that the design violated acceptable engineering practices and industrystandards. As Breen's opinion is not supported by any empirical data or foundational facts, itlacks sufficient probative value to raise an issue of fact that the subject bottle was not reasonablysafe in its design (see Pigliavento v Tyler Equip. Corp., 248 AD2d at 842; Fallon vHannay & Son, 153 AD2d 95, 101-102 [1989]; see also D'Auguste v Shanty Hollow Corp., 26 AD3d 403, 404[2006]; Martinez v Roberts Consol. Indus., 299 AD2d 399, 399-400 [2002]).
Turning to plaintiffs' manufacturing defect claim, "in strict products liability cases involvingmanufacturing defects, the harm arises from the product's failure to perform in the intendedmanner due to some flaw in the fabrication process" (Denny v Ford Motor Co., 87 NY2d248, 257 n 3 [1995]; see McArdle v Navistar Intl. Corp., 293 AD2d 931, 932 [2002]).For entitlement to summary judgment on this basis, a defendant must submit admissible proofestablishing that the product was not defective as a matter of law (see McArdle v NavistarIntl. Corp., 293 AD2d at 932; see also Rachlin v Volvo Cars of N. Am., 289 AD2d981, 982 [2001]).
Here, both Henderson and Storch detailed the bottle inspection process. Specifically,Henderson averred that "every single bottle" was inspected by various pieces of equipment,including undergoing "bright field analysis" which electronically inspects for flaws, and was thenexamined by a trained inspector and subjected to a variety of sampling procedures to ensure itsquality and integrity. These methods, according to Henderson, tested and inspected for, amongother things, sidewall thickness and impact resistance, deviations in the sealing surfaces, glasscomposition, cracks in the bottles and resistance to thermal expansion. Storch described how thecases of bottles were packaged when received from Leone, detailed defendant's bottling process[*3]and averred that each bottle is inspected by at least twoemployees and, if a visual defect were found on a bottle, it would be discarded. In our view, thisevidence satisfied defendant's burden of establishing prima facie that the subject bottle was notdefective when it left its manufacturing facility (see McArdle v Navistar Intl. Corp., 293AD2d at 932-933; Tardella v RJR Nabisco, 178 AD2d 737, 737-738 [1991]; see also Ramos v Howard Indus., Inc.,10 NY3d 218, 223-224 [2008]).
As such, the burden shifted to plaintiffs "to demonstrate the existence of a triable issue as towhether, in fact, there was a defect" (McArdle v Navistar Intl. Corp., 293 AD2d at 932).In order to do so, plaintiffs were required to either submit direct evidence that a defect existedwhen the product left the manufacturer (see id.; Van Deusen v Norton Co., 204AD2d 867, 869 [1994]) or, "in the absence of evidence identifying a specific flaw,. . . prove that the product did not perform as intended and exclude all other causesfor the product's failure that are not attributable to defendant[ ]" (Speller v Sears, Roebuck &Co., 100 NY2d at 41; see Halloran v Virginia Chems., 41 NY2d 386, 388 [1977]; Maciarello v Empire Comfort Sys., 16AD3d 1009, 1011 [2005]).
In opposition to defendant's motion, Breen opined that, upon observing photographs andexamining portions of the bottle in question, he found "[s]mall discontinuities" in portions of thebottle's neck and cap section which reduce the load carrying capacity. However, Breen failed toexplain the significance of these findings and did not cite to any industry standards or data tosupport a conclusion that such discontinuities in the glass bottle were irregular or otherwiseaffected the structural integrity of the bottle. More importantly, Breen equivocally concluded thatthere were "potentially[ ] manufacturing defects in this bottle that caused it to fail"(emphasis added), thus rendering his opinion as to a specific defect wholly speculative.
Further, plaintiffs' attempt to prove the case circumstantially in the absence of a specificdefect was also insufficient to raise an issue of fact requiring a trial. Storch averred that, from1999 to 2001, defendant did not sell its steak sauce directly to the grocery chain where plaintiffspurchased the subject bottle and that she was unaware of any of defendant's distributors selling tosuch grocery chain during this time period. Therefore, defendant maintained that, in light of thebottle's unknown chain of custody as well as the absence of a use-by date on the bottle, it couldhave been mishandled or damaged when it passed through the hands of a number of distributorsprior to being sold to the grocery store where plaintiffs purchased it. Thus, in order to withstandsummary dismissal, plaintiffs were required to come forward with evidence excludingpreaccident damage to the bottle as the cause of its breakage (see Speller v Sears, Roebuck &Co., 100 NY2d at 42). While Breen averred that there was no such damage to the bottle, heacknowledged that a portion of the neck of the bottle was not recovered following the accident,yet failed to discuss the size of the missing portion of the bottle or the likelihood that it containedevidence of damage that may have served as a fracture initiation site that weakened the bottle.Inasmuch as plaintiffs' proof was insufficient to exclude all other causes of breakage notattributable to defendant, summary judgment was properly granted to defendant (seeMaciarello v Empire Comfort Sys., 16 AD3d at 1011; see also Blazynski v A. Gareleck & Sons, Inc., 48 AD3d 1168,1169 [2008]).
Finally, in light of our findings, and inasmuch as there is almost no difference between aprima facie case in negligence and one in strict liability (see Denny v Ford Motor Co., 87NY2d 248, 257-258 [1995]; Saunders vFarm Fans, div. of ffi Corp., 24 AD3d 1173, 1175 [2005]; Blandin v MarathonEquip. Co., 9 AD3d at 576; Di Marco v Westinghouse Elec. Corp., 170 [*4]AD2d 760, 762 [1991]; see also Gebo v Black ClawsonCo., 92 NY2d 387, 393-394 [1998]), we find that plaintiffs' proof similarly failed to raise anissue of fact as to their claims for negligent design and manufacturing.
Carpinello, Kane, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.