| Rabon-Willimack v Robert Mondavi Corp. |
| 2010 NY Slip Op 04354 [73 AD3d 1007] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Lissa Rabon-Willimack, Appellant, et al.,Plaintiff, v Robert Mondavi Corporation et al., Defendants/Third-PartyPlaintiffs-Respondents, et al., Defendants. Saint-Gobain Containers, Inc., Third-PartyDefendants-Respondents. |
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In an action to recover damages for personal injuries, etc., the plaintiff LissaRabon-Willimack appeals from an order of the Supreme Court, Westchester County (Donovan,J.), entered September 8, 2008, which granted the motion of the defendants/third-party plaintiffsfor summary judgment dismissing the complaint insofar as asserted against them and granted thecross motion of the third-party defendants for summary judgment dismissing the complaint andthe third-party complaint.
Ordered that the appeal from so much of the order as granted that branch of the cross motionof the third-party defendants which was for summary judgment dismissing the third-partycomplaint is dismissed, as the plaintiff Lissa Rabon-Willimack is not aggrieved by that portionof the order (see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The injured plaintiff, Lissa Rabon-Willimack (hereinafter Willimack), and her husband,suing derivatively, commenced this action against, among others, the Robert MondaviCorporation and the Robert Mondavi Winery (hereinafter together Robert Mondavi), themanufacturer and bottler of Robert Mondavi Woodbridge Chardonnay, to recover damages forpersonal injuries sustained when a bottle of wine broke in her hand as she was attempting toopen it with a corkscrew while working as a bartender in a restaurant. Willimack alleged causesof action sounding in strict products liability, breach of warranty, and negligence. RobertMondavi commenced a third-party action against Saint-Gobain Containers, Inc., and itspredecessors (hereinafter collectively Saint-Gobain), which manufactured the wine bottle.[*2]
Following discovery, Robert Mondavi moved, andSaint-Gobain cross-moved, inter alia, for summary judgment dismissing the complaint on theground, among others, that there was no evidence that the bottle of wine was defective. Insupport, they relied on the conclusion of their experts that the bottle fractured becauseWillimack, while utilizing a waiter's corkscrew as a lever to uncork the bottle, applied excessiveforce to the top of the wine bottle with the metal fulcrum of the corkscrew. The Supreme Courtgranted the motion and cross motion, inter alia, for summary judgment dismissing the complaint,prompting this appeal by Willimack. We affirm.
A party injured as a result of a defective product may seek relief against the productmanufacturer or others in the chain of distribution if the defect was a substantial factor in causingthe injury (see Speller v Sears, Roebuck & Co., 100 NY2d 38, 41 [2003]; Codling vPaglia, 32 NY2d 330, 342 [1973]). A product may be defective because of a mistake in themanufacturing process resulting in a manufacturing flaw, because of an improper, defectivedesign, or because the manufacturer failed to provide adequate warnings regarding the use of theproduct (see Liriano v Hobart Corp., 92 NY2d 232, 237 [1998]; Voss v Black &Decker Mfg. Co., 59 NY2d 102, 106-107 [1983]). In a products liability case, "if adefendant comes forward with any evidence that the accident was not necessarily attributable toa defect, the plaintiff must then produce direct evidence of a defect" to defeat the motion(Schneidman v Whitaker Co., 304 AD2d 642, 643 [2003] [internal quotation marksomitted]; see Galletta v SnappleBeverage Corp., 17 AD3d 530 [2005]; Sideris v Simon A. Rented Servs., 254AD2d 408, 409 [1998]).
Here, Robert Mondavi and Saint-Gobain each established their prima facie entitlement tojudgment as a matter of law dismissing so much of the complaint as alleged strict productsliability based upon a manufacturing defect by submitting the deposition testimony of theiremployees and expert affidavits which established that the subject bottle was not defective whenit left their manufacturing and bottling facilities (see Preston v Peter Luger Enters., Inc., 51 AD3d 1322, 1324[2008]; McArdle v Navistar Intl. Corp., 293 AD2d 931, 932-933 [2002]; Tardella vRJR Nabisco, 178 AD2d 737, 737-738 [1991]; see also Ramos v Howard Indus., Inc., 10 NY3d 218, 223-224[2008]). In opposition, the plaintiffs failed to raise a triable issue of fact by submitting directevidence that a defect existed when the product left the manufacturer (see McArdle vNavistar Intl. Corp., 293 AD2d at 932; Van Deusen v Norton Co., 204 AD2d 867,869 [1994]), or by "exclud[ing] all other causes for the product's failure that are not attributableto defendant[ ]" (Speller v Sears, Roebuck & Co., 100 NY2d at 41; see Halloran vVirginia Chems., 41 NY2d 386, 388 [1977]; Maciarello v Empire Comfort Sys., 16 AD3d 1009, 1011 [2005]).
Robert Mondavi and Saint-Gobain also made a prima facie showing of entitlement tojudgment as a matter of law dismissing so much of the complaint as alleged strict productsliability based upon a design defect by submitting deposition testimony and affidavits of theirexperts which established that there was no flaw in the design of the subject bottle, and that thebottle fractured due to excessive force applied to the top of the bottle with the two-prongedfulcrum of a waiter's metal corkscrew (see Galletta v Snapple Beverage Corp., 17 AD3dat 530; Garrison v Clark Mun. Equip., 241 AD2d 872, 873 [1997]). In opposition, theplaintiffs proffered the expert affidavit of Carl J. Abraham, a professional engineer with aspecialization in safety, safety engineering, and design, which consisted primarily of conclusoryand speculative allegations that the accident was caused by the inherent weakness of the neck ofthe bottle, that Robert Mondavi was aware that wine bottles were fracturing in the neck duringthe opening process, and that there were safer alternative designs. An expert'saffidavit—offered as the only evidence to defeat summary judgment—"mustcontain sufficient allegations to demonstrate that the conclusions it contains are more than merespeculation and would, if offered alone at trial, support a verdict in the proponent's favor"(Adamy v Ziriakus, 92 NY2d 396, 402 [1998] [citation omitted]; see Diaz v NewYork Downtown Hosp., 99 NY2d 542, 544 [2002]; see also Ramos v Howard Indus., Inc., 10 NY3d 218, 223-224[2008]). As the expert's opinion was not supported by foundational facts, such as the results ofactual testing of the bottle, a deviation from industry standards, or statistics showing thefrequency of consumer complaints or injuries resulting from the alleged product defect, it lackedsufficient probative value to raise a triable issue of fact as to whether the subject bottle was notreasonably safe in its design (seeD'Auguste v Shanty Hollow Corp., 26 AD3d 403, 404 [2006]; Masiello v Efficiency Devices, 6AD3d 672, 673 [2004]; Martinez v Roberts Consol. Indus., 299 AD2d 399, 399-400[2002]).
In addition, Robert Mondavi and Saint-Gobain made a prima facie showing of entitlement tojudgment as a matter of law dismissing so much of the complaint as alleged strict productsliability based [*3]upon a failure to warn by establishing, as amatter of law, that they had no duty to warn of the risks created by the use or misuse of anothermanufacturer's product (see Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289[1992]; cf. Singh v G & A Mounting & Die Cutting, 276 AD2d 617 [2000]), or of thedanger of applying pressure to a glass bottle with a metal object while holding the bottle in one'shands (see Lamb v Kysor Indus. Corp., 305 AD2d 1083, 1084-1085 [2003]; Baptistev Northfield Foundry & Mach. Co., 184 AD2d 841, 843 [1992]). In opposition, the plaintifffailed to raise a triable issue of fact in this regard (see Liriano v Hobart Corp., 92 NY2d232, 241 [1998]).
Willimack's remaining contentions are without merit. Fisher, J.P., Balkin, Roman and Sgroi,JJ., concur.