| Fahey v A.O. Smith Corp. |
| 2010 NY Slip Op 07139 [77 AD3d 612] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Mary T. Fahey, Individually and as Administratrix of the Estate of BrianD. Fahey, Deceased, et al., Appellants, v A.O. Smith Corporation, Respondent, and RandallGordon, Also Known as Randy Gordon, et al., Appellants. (Action No. 1.) Patrick Baker et al.,Appellants, v Long Island General Supply Co., Inc., et al., Appellants, et al., Respondent. (Action No.2.) Brian Hardy et al., Appellants, v Long Island General Supply Co., Inc., et al., Appellants, et al.,Respondent. (Action No. 3.) |
—[*1] Barasch McGarry Salzman & Penson, New York, N.Y. (Dominique Penson and Brian J. Shoot ofcounsel), for plaintiffs-appellants in action Nos. 2 and 3. Callan, Koster, Brady & Brennan LLP, New York, N.Y. (Marc R. Wilner of counsel), fordefendants-appellants. Clausen Miller P.C., New York, N.Y. (Edward M. Kay and Kimbley A. Kearney of counsel), forrespondent.
In three related actions to recover damages for personal injuries and wrongful death, etc., (1) theplaintiffs in action No. 1 appeal, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (Kerrigan, J.), entered November 25, 2008, as granted that branch of themotion of the defendant A.O. Smith Corporation which was for summary judgment [*2]dismissing the complaint in action No. 1 insofar as asserted against thatdefendant, and the defendants Randall Gordon, also known as Randy Gordon, and Robin Gordonseparately appeal, as limited by their brief, from so much of the same order as granted that branch ofthe motion of the defendant A.O. Smith Corporation which was for summary judgment dismissing allcross claims in action No. 1 insofar as asserted against that defendant, (2) the plaintiffs in action No. 2appeal, as limited by their brief, from so much of an order of the same court entered November 26,2008, as granted that branch of the motion of the defendant A.O. Smith Corporation which was forsummary judgment dismissing the complaint in action No. 2 insofar as asserted against that defendant,and the defendants Long Island General Supply Co., Inc., Alec Gordon, Pearl Gordon, RandallGordon, also known as Randy Gordon, and Robin Gordon separately appeal, as limited by their brief,from so much of the same order as granted that branch of the motion of the defendant A.O. SmithCorporation which was for summary judgment dismissing all cross claims in action No. 2 insofar asasserted against that defendant, and (3) the plaintiffs in action No. 3 appeal, as limited by their brief,from so much of an order of the same court, also entered November 25, 2006, as granted that branchof the motion of the defendant A.O. Smith Corporation which was for summary judgment dismissing thecomplaint in action No. 3 insofar as asserted against that defendant, and the defendants Long IslandGeneral Supply Co., Inc., Alec Gordon, Pearl Gordon, Randall Gordon, also known as RandyGordon, and Robin Gordon separately appeal, as limited by their brief, from so much of the same orderas granted that branch of the motion of the defendant A.O. Smith Corporation which was for summaryjudgment dismissing all cross claims in action No. 3 insofar as asserted against that defendant.
Ordered that the order entered in action No. 1 is modified, on the law, by deleting the provisionthereof granting those branches of the motion of the defendant A.O. Smith Corporation which were forsummary judgment dismissing all causes of action and cross claims insofar as asserted against it in thataction except those claims asserted pursuant to General Municipal Law § 205-a insofar asasserted against it, and substituting therefor a provision denying those branches of the motion; as somodified, the order is affirmed; and it is further,
Ordered that the order entered in action No. 2 is modified, on the law, by deleting the provisionthereof granting those branches of the motion of the defendant A.O. Smith Corporation which were forsummary judgment dismissing all causes of action and cross claims insofar as asserted against it in thataction except those claims asserted pursuant to General Municipal Law § 205-a insofar asasserted against it, and substituting therefor a provision denying those branches of the motion; as somodified, the order is affirmed; and it is further,
Ordered that the order entered in action No. 3 is modified, on the law, by deleting the provisionthereof granting those branches of the motion of the defendant A.O. Smith Corporation which were forsummary judgment dismissing all causes of action and cross claims insofar as asserted against it in thataction except those claims asserted pursuant to General Municipal Law § 205-a insofar asasserted against it, and substituting therefor a provision denying those branches of the motion; as somodified, the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the appellants, appearing separately and filing separatebriefs.
These three related actions arise from a fire and explosion in a hardware store in Astoria, Queens,on June 17, 2001. The plaintiffs are firefighters who were injured in the explosion, their spouses, andthe administrators of the estates of firefighters who perished in the explosion. The defendants include theowners of the hardware store (hereinafter the Gordon defendants) and A.O. Smith Corporation(hereinafter A.O. Smith), the manufacturer of a hot water heater. The fire allegedly started when aperson not a party to these actions accidentally spilled a container of gasoline outside the store, thegasoline flowed under a door into the basement, and the vapors were allegedly ignited by the pilot lightin the hot water heater. Several minutes later, after the firefighters had arrived, an explosion occurred,killing three firefighters and injuring several others.[*3]
As against A.O. Smith, the plaintiffs and the Gordondefendants assert a variety of theories of liability, including negligence, breach of implied and expresswarranty, and strict products liability, premised upon their allegation that the defective design of the hotwater heater and its pilot light caused the gasoline vapors to ignite. They also assert causes of actionpursuant to General Municipal Law § 205-a premised upon A.O. Smith's alleged violation of theimplied warranty of merchantability imposed by UCC 2-314. A.O. Smith moved for summaryjudgment dismissing the complaints and all cross claims insofar as asserted against it. In the three ordersunder review, the Supreme Court granted A.O. Smith's motions, finding that even if the pilot light of thewater heater ignited the gas vapors, the alleged design defect was not a proximate cause of thefirefighters' injuries due to the intervening negligence of the Gordon defendants which broke the causalnexus. Further, with respect to the causes of action and cross claims asserted pursuant to GeneralMunicipal Law § 205-a, the Supreme Court held that a violation of UCC 2-314 is not a properpredicate to support those claims. We determine that the Supreme Court properly dismissed the causesof action and cross claims asserted pursuant to General Municipal Law § 205-a insofar asasserted against A.O. Smith, but that the remaining causes of action and cross claims should not havebeen dismissed, and we modify the orders accordingly.
Initially, a triable issue of fact was raised with respect to the existence of a design defect in thewater heater. In support of its motion, A.O. Smith submitted evidence that the water heater compliedwith industry standards and carried adequate warnings of the ignition hazard from flammable vapors. Inopposition, the plaintiffs and the Gordon defendants raised a triable issue of fact as to the existence of adesign defect by submitting evidence that the water heater was not reasonably safe and that alternative,safer designs were available at the time of its manufacture, such as a direct vent system, or a designwhich used a vertical barrier or an 18-inch stand (see Sugrim v Ryobi Tech., Inc., 73 AD3d 904, 905 [2010]; Wengenroth v Formula Equip. Leasing, Inc.,11 AD3d 677, 680 [2004]; see generally Denny v Ford Motor Co., 87 NY2d 248,256-259 [1995]).
Whether an action is pleaded in strict products liability, breach of warranty, or negligence, theplaintiffs must prove that the alleged defect is a substantial cause of the events which produced theinjury (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Beckford v Pantresse, Inc., 51 AD3d958, 959 [2008]). A.O. Smith sought to establish that its water heater was not a substantial causeby submitting evidence that a gas-fired boiler with a pilot light was also in the vicinity of the gasolinespill. In opposition, the plaintiffs and the Gordon defendants submitted evidence that A.O. Smith's waterheater was the likely source of ignition based upon an analysis of the comparatively safe design of theboiler and its pilot light. Thus, a triable issue of fact was raised as to whether A.O. Smith's water heaterwas a substantial cause of the fire.
A.O. Smith contends, however, that any causal nexus between the alleged design defect and theplaintiffs' injuries was severed by the intervening negligence of the Gordon defendants. In support of thiscontention, A.O. Smith submitted evidence that, when the firefighters opened windows to enter thebasement, a severe backdraft explosion occurred due to the negligent acts and omissions of the Gordondefendants, including their storage of large amounts of flammable substances in the basement, theabsence of an automatic fire suppression system, and a fire door which had been wedged openintentionally.
"Defendants are liable for all normal and foreseeable consequences of their acts," and the plaintiffs"need not demonstrate that the precise manner in which the accident happened or the injuries occurredwas foreseeable" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993]; seeDerdiarian v Felix Contr. Corp., 51 NY2d at 315). An intervening act constitutes a supersedingcause sufficient to relieve a defendant of liability if it is "extraordinary under the circumstances, notforeseeable in the normal course of events, or independent of or far removed from the defendant'sconduct" (Derdiarian v Felix Contr. Corp., 51 NY2d at 315; see Gordon v Eastern Ry.Supply, 82 NY2d at 562). The causal link may also be severed when "the intervening act wasdivorced from and not the foreseeable risk associated with the original negligence," or if the defendant'sact "merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated"(Derdiarian v Felix [*4]Contr. Corp., 51 NY2d at 316).Questions concerning what is foreseeable are usually for the trier of fact (id. at 315; see Lapidus v State of New York, 57AD3d 83, 95 [2008]).
Here, A.O. Smith failed to demonstrate the absence of any triable issue of fact as to whether injuryfrom an explosion was a foreseeable consequence of its conduct. The backdraft explosion cannot bedivorced from the alleged design defect, which created a risk of fire or explosion from flammablesubstances. Further, on this record, it cannot be said, as a matter of law, that the alleged negligence ofthe Gordon defendants was of such an extraordinary nature that it was not foreseeable in the normalcourse of events or that it so attenuated A.O. Smith's conduct from the ultimate injuries as to constitutea superseding cause absolving A.O. Smith from liability (see Grossi v Sylak, 72 AD3d 895 [2010]; Lapidus v State of NewYork, 57 AD3d at 96-97). Accordingly, the Supreme Court improperly dismissed the causes ofaction and cross claims based upon the alleged design defect insofar as asserted against A.O. Smith.
We conclude, however, that the Supreme Court properly dismissed the causes of action and crossclaims asserted pursuant to General Municipal Law § 205-a. That section provides an injuredfirefighter with a cause of action to recover damages from any person who, "at the time of such injury,"is guilty of the negligent or willful failure to comply with, inter alia, "any" statute (General Municipal Law§ 205-a [1]). Despite this broad language, the cause of action does not encompass "any" statute,but only those founded in "well-developed bodies of law and regulation which impose clearduties" (Desmond v City of New York, 88 NY2d 455, 464 [1996] [internal quotationmarks omitted]; see Galapo v City of New York, 95 NY2d 568, 574 [2000]). The plaintiffmust demonstrate that the statutory violation "directly or indirectly has a reasonable connection to thefirefighter's described injury" (Cusumano vCity of New York, 63 AD3d 5, 8 [2009]; see Giuffrida v Citibank Corp., 100 NY2d72, 80-81 [2003]).
Here, the plaintiffs premise their causes of action pursuant to General Municipal Law §205-a upon A.O. Smith's alleged violation of UCC 2-314. That section provides that a seller impliedlywarrants that the goods "are fit for the intended purpose for which they are used and that they will passin the trade without objection" (Wojcik vEmpire Forklift, Inc., 14 AD3d 63, 66 [2004] [internal quotation marks omitted]; seeDenny v Ford Motor Co., 87 NY2d at 258; Garcia v Woodgrove Sales, Inc., 65 AD3d 516, 516-517 [2009]).UCC 2-314 and 2-316 expressly allow for the exclusion or modification of the implied warranty ofmerchantability by contract language or certain conduct. The "defect" element in a breach of impliedwarranty claim under the UCC is premised on contract principles and focuses on the purchaser'sdisappointed expectations, while the "defect" element in a strict products liability claim is based upontort principles concerned with social policy and risk allocation (see Denny v Ford Motor Co.,87 NY2d at 256-259; Garcia v Woodgrove Sales, Inc., 65 AD3d at 516-517). Analysis of aviolation of UCC 2-314, therefore, involves fact issues, often complex, regarding the suitability of theproduct for its intended use and the reasonable expectations of the purchaser (see e.g. Denny vFord Motor Co., 87 NY2d at 256-259; Garcia v Woodgrove Sales, Inc., 65 AD3d at516-517; Wojcik v Empire Forklift, Inc., 14 AD3d at 66-67). Accordingly, the SupremeCourt correctly determined that UCC 2-314 does not prescribe the performance or nonperformance ofa specific act by the seller or impose the type of clear legal duty necessary to support a claim assertedpursuant to General Municipal Law § 205-a (see Galapo v City of New York, 95NY2d 568, 574 [2000]).
A.O. Smith's remaining contention that the complaint should have been dismissed on the ground ofspoliation of evidence is without merit (seeAwon v Harran Transp. Co., Inc., 69 AD3d 889, 890 [2010]; Favish v Tepler, 294AD2d 396 [2002]). Skelos, J.P., Angiolillo, Hall and Lott, JJ., concur.