| Johnson v UniFirst Corp. |
| 2011 NY Slip Op 09431 [90 AD3d 1539] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| William Johnson, Respondent, v UniFirst Corporation,Appellant. |
—[*1] Lynn Law Firm, LLP, Syracuse (Patricia A. Lynn-Ford of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), enteredOctober 8, 2010 in a personal injury action. The order denied the motion of defendant forsummary judgment dismissing plaintiff's complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the first and third causes of action as well as thesecond cause of action insofar as it is predicated on the theory of defective design and asmodified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen, during the course of his employment as a welder with Derrick Corporation (Derrick), hisuniform caught fire. The uniform was supplied by defendant to Derrick's employees pursuant to a"Customer Service Agreement" (Agreement) between defendant and Derrick. Plaintiff assertedcauses of action for negligence, strict products liability and breach of the implied warranties ofmerchantability and fitness for a particular purpose.
We agree with defendant that Supreme Court erred in denying those parts of its motionseeking summary judgment dismissing the first and third causes of action alleging, respectively,negligence and breach of the implied warranties of merchantability and fitness for a particularpurpose. We therefore modify the order accordingly. With respect to the negligence cause ofaction, defendant established as a matter of law that it owed no duty to plaintiff to provide orrecommend flame resistant uniforms (see generally Faery v City of Lockport, 70 AD3d 1375, 1376[2010]; Johnson v TransportationGroup, Inc., 27 AD3d 1135, 1136 [2006]). Defendant also "met [its] initial burden ofestablishing that the [uniform] was fit and reasonably safe for the ordinary purposes for which itwas to be used," thus warranting judgment in its favor on the cause of action for breach ofimplied warranties (Wesp v Carl Zeiss,Inc., 11 AD3d 965, 968 [2004]). Plaintiff's submissions in opposition were insufficientto raise a triable issue of fact with regard to those two causes of action (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The court further erred in denying that part of defendant's motion seeking summary judgmentdismissing the second cause of action, alleging strict products liability, insofar as that [*2]cause of action is predicated on the theory of defective design.Defendant submitted evidence that it offered flame resistant uniforms to Derrick, and thatDerrick, which was in the best position to evaluate the needs of its employees, made a deliberatedecision not to make defendant's flame resistant uniforms available to its employees. Instead,Derrick obtained flame resistant garments from another vendor. That evidence was sufficient toestablish as a matter of law that defendant fulfilled its duty not to market or supply a defectiveproduct, and plaintiff failed to raise an issue of fact (see Dick v NACCO Materials Handling Group, Inc., 37 AD3d1108, 1109 [2007]; Geddes v Crown Equip. Corp., 273 AD2d 904 [2000]). Wetherefore further modify the order accordingly.
We conclude, however, that the court properly denied that part of defendant's motion seekingsummary judgment dismissing the strict products liability cause of action insofar as that cause ofaction is predicated on the theory of failure to warn. "[I]n all but the most unusual circumstances,the adequacy of a warning is a question of fact" to be determined at trial (Nagel v Brothers Intl. Food, Inc., 34AD3d 545, 547 [2006] [internal quotation marks omitted]; see Repka v Arctic Cat, Inc., 20 AD3d916, 918 [2005]). Defendant had an independent duty, irrespective of the duty undertaken byDerrick under the Agreement, to warn employees that the uniforms were not flame resistant(see Cohen v St. Regis Paper Co., 109 AD2d 1048, 1049 [1985], affd 65 NY2d752 [1985]; Billsborrow v Dow Chem., 177 AD2d 7, 17 [1992]), and defendant failed toestablish as a matter of law that the uniform label provided an adequate warning with respect tothe flammability of the fabric (see generally Cover v Cohen, 61 NY2d 261, 276-277[1984]). Contrary to defendant's contention, moreover, the admitted failure of plaintiff to read thelabel on his uniform does not necessarily sever the causal connection between the allegedinadequacy of the warning and the occurrence of the accident (see Vail v KMart Corp., 25 AD3d549, 551 [2006]; Johnson v Johnson Chem. Co., 183 AD2d 64, 71 [1992]).Present—Smith, J.P., Peradotto, Lindley, Green and Martoche, JJ.