| Pierre-Louis v DeLonghi Am., Inc. |
| 2009 NY Slip Op 07609 [66 AD3d 859] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Marie Pierre-Louis, Respondent, v DeLonghi America,Inc., et al., Appellants, and Antoneen Darden et al., Respondents. |
—[*1] Solomon & Associates, P.C., Staten Island, N.Y., for plaintiff-respondent. Gannon, Rosenfarb & Moskowitz, New York, N.Y. (James A. Aldag of counsel), fordefendants-respondents.
In an action, inter alia, to recover damages for personal injuries and wrongful death, thedefendants DeLonghi America, Inc., and Home Depot, Inc., appeal from so much of an order ofthe Supreme Court, Kings County (Kramer, J.), dated April 4, 2008, as amended by an order ofthe same court dated August 1, 2008, as denied their motion for summary judgment dismissingthe complaint and all cross claims insofar as asserted against them.
Ordered that the order, as amended, is affirmed insofar as appealed from, with costs to therespondents appearing separately and filing separate briefs, payable by the appellants.
This appeal arises from a fire that occurred on January 13, 2003 at the home of AntoneenDarden-McCall, sued herein as Antoneen Darden and Antoneen McCall (hereinafter Darden),which took the life of Cassandra Pierre-Louis (hereafter the decedent). On the day of the fire, thedecedent was a guest of Darden's son, the defendant Marques McCall, also known as MarcusMcCall (hereafter Marques). According to the New York City Fire Department, a portableoil-filled space heater, manufactured by the defendant DeLonghi America, Inc. (hereafterDeLonghi), sold by the defendant Home Depot, Inc. (hereafter Home Depot), and purchased byDarden the day before the fire, caused the subject fire. Darden's other son, the defendantMatthew McCall (hereafter Matthew), had taken the heater out of the box when it was broughthome, and, unintentionally, placed it upside down. It is undisputed that he was the only user ofthe subject heater prior to the fire.
The plaintiff commenced this action against, among others, DeLonghi and Home Depot,seeking, inter alia, to recover damages for personal injuries and wrongful death, alleging causesof action sounding in strict products liability. The plaintiff alleged that the heater was defectivelymanufactured and/or designed, and alleged a failure to warn regarding the use of the heater.DeLonghi and Home Depot (hereafter together the movants) moved for summary judgmentdismissing the complaints and all cross claims insofar as asserted against them. The SupremeCourt denied the motion.[*2]
"[A] manufacturer may be held liable for placing into thestream of commerce a defective product which causes injury" (Gebo v Black Clawson Co.,92 NY2d 387, 392 [1998]). This burden is also imposed on a "wholesaler, distributor, orretailer who sells a product in a defective condition" (Godoy v Abamaster of Miami, 302AD2d 57, 60 [2003]).
There are three distinct claims for strict products liability: "(1) a mistake in manufacturing. . . (2) an improper design . . . or (3) an inadequate or absent warningfor the use of the product" (Lancaster Silo & Block Co. v Northern Propane Gas Co., 75AD2d 55, 61-62 [1980]; see Sukljian v Ross & Son Co., 69 NY2d 89 [1986];Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 478-479 [1980]).
Contrary to the movants' contention, they did not meet their initial burden of demonstratingprima facie entitlement to judgment as a matter of law with regard to the manufacturing defectclaims (see Zuckerman v City of New York, 49 NY2d 557 [1980]). "[A] defectivelymanufactured product is flawed because it is misconstructed without regard to whether theintended design of the manufacturer was safe or not. Such defects result from some mishap in themanufacturing process itself, improper workmanship, or because defective materials were usedin construction" (Caprara v Chrysler Corp., 52 NY2d 114, 128-129 [1981]). Here, themovants' own expert admitted that welds in the subject heater model would breech and oil wouldspurt out when the heater is operated in the upside down position, and DeLonghi's own presidentadmitted that it was reasonably foreseeable that the subject heater would be operated in theupside down position, and specifically knew that the subject heater had previously been operatedis such manner by users for a number of years prior to the subject fire.
The movants did, however, meet their initial burden of demonstrating prima facieentitlement to judgment as a matter of law regarding the design defect claims, through thesubmission of the opinion of their expert explaining that the subject heater was not defectivelydesigned (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
"To establish a prima facie case in a strict products liability action predicated on a designdefect, a plaintiff must show that the manufacturer marketed a product which was not reasonablysafe in its design, that it was feasible to design the product in a safer manner, and that thedefective design was a substantial factor in causing the plaintiff's injury" (Gonzalez v DeltaIntl. Mach. Corp., 307 AD2d 1020, 1021 [2003]; see Voss v Black & Decker Mfg. Co.,59 NY2d 102, 107 [1983]; Ramirez v Sears, Roebuck & Co., 286 AD2d 428, 430[2001]).
Contrary to the movants' contention, however, the plaintiff established the existence oftriable issues of fact as to the design defect claims, through the opinions submitted by her twoexperts (see Zuckerman v City of New York, 49 NY2d 557 [1980]). "Where, as here, aqualified expert opines that a particular product is defective or dangerous, describes why it isdangerous, explains how it can be made safer, and concludes that it is feasible to do so, it isusually for the jury to make the required risk-utility analysis" (Wengenroth v Formula Equip. Leasing,Inc., 11 AD3d 677, 680 [2004]; see Garrison v Clark Mun. Equip., 241 AD2d872, 874 [1997]; Gokey v Castine, 163 AD2d 709, 711 [1990]; Gardner v DixieParking Corp., 80 AD2d 577, 578 [1981]). Thus, considering the conflicting expert opinionsconcerning the reasonableness of the heater's design, the Supreme Court correctly determinedthat a question of fact exists concerning an alleged design defect (see Steuhl v Home Therapy Equip., Inc.,51 AD3d 1101 [2008]).
Contrary to the movants' contention, they did not meet their initial burden of demonstratingprima facie entitlement to summary judgment dismissing the failure-to-warn claims (seeZuckerman v City of New York, 49 NY2d 557 [1980]). The movants contend that theplaintiff cannot prevail on her claim based upon failure to warn because Matthew did not readthe warnings contained in the instructions for the subject heater that operating it in the upsideposition can create a hazard. However, Matthew testified at his examination before trial that theheater unit was the only item that came out of the box when he set it up the day before the fireand that the only writing he saw on the subject heater itself were the numbers on the temperaturedial, which contained no warning. Resolving all reasonable inferences in the manner mostfavorable to the opponents of the movants' summary judgment motion (see Nicklas v TedlenRealty Corp., 305 AD2d 385 [2003]; Henderson v City of New York, 178 AD2d129, 130 [1991]), the movants did not [*3]establish, as a matterof law, that the subject heater actually came with the subject instructions and, therefore, withadequate warnings.
Accordingly, the Supreme Court properly denied the movants' summary judgment motion.Skelos, J.P., Fisher, Belen and Lott, JJ., concur. [See 19 Misc 3d 1127(A), 2008 NY SlipOp 50918(U).]