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Perez v. Radar Realty4/5/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Plaintiff Nathaniel Perez commenced this product liability action seeking to recover money damages for personal injuries sustained during a fire that erupted while plaintiff was refurbishing a wood floor by applying a lacquer sealer and polyurethane. Plaintiff sues Akzo Nobel Coating Inc. ("Akzo") and D & F Paint Co. Inc., respectively, as the manufacturer and wholesaler distributor of the lacquer sealer. Plaintiff also sues Startlite Paint & Varnish Co. ("Startlite") as the retailer of the lacquer sealer and as manufacturer and retailer of the polyurethane. Defendants now move and cross move for summary judgment dismissing the claims asserted against them.
Discussion
As a threshold question, there should be no dispute that defendants are subject to liability to the ultimate user under the roles of manufacturer, distributor and retailer of the products in question. Under the doctrine of strict products liability the manufacturer of a product is under a non-delegable duty to produce a defect free product. Liability is imposed irrespective of fault. " scienter that is so vital to the negligence suit need not be shown." Caprara v. Chrysler Corp., 52 NY2d 114, 123 (1981). All that is required is that the product be found defective. Codling v. Paglia, 32 NY2d 330 (1973). If a defect is found to exist, the manufacturer of the defective product may be found liable to a remote user who was injured by the defective product notwithstanding the user's lack of privity with the manufacturer, provided, however, that the defect was a substantial factor in causing the injury. Codling v. Paglia, supra, 32 NY2d 330. Liability extends not only to those who manufacture the defective product, but also to any party in the direct distributive chain. Thus, manufacturers, distributors, retailers and makers of component parts of the defective product can be found liable. See Cover v. Cohen, 61 NY2d 261 (1984); Mead v. Warner Pruyn Div., Finch Pruyn Sales, Inc., 57 AD2d 340 (3rd Dept. 1977).
What movant-defendants seriously question is whether plaintiff can establish a prima facie case of products liability against any of them. As the law of strict products liability has developed, a defective product may consist of: (1) a mistake in manufacturing (i.e., a "flaw"), see Codling v. Paglia, 32 NY2d 330, (2) an improper design (a "design defect"), see Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 NY2d 376, 384-387 (1976); Bolm v. Triumph Corp., 33 NY2d 151 (1973), or (3) an inadequate or absent warning for the use of the product. See Torrogrossa v. Towmotor Co., 44 NY2d 709 (1978); Wolfgruber v. Upjohn Co., 72 AD2d 59 (4th Dept. 1979), affd., 52 NY2d 768 (1980); Robinson v. Reed-Prentice Div. of Package Machinery Co., 49 NY2d 471, 478-479 (1978). In this case, plaintiff relies upon the theories of design defect and inadequate warnings.
A.
The Court first examines the motion and cross motions by defendants for a dismissal of the claims under the theory that a defectively designed lacquer sealer was the cause of plaintiff's injuries.
A defectively designed product is one in which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use. Robinson v Reed-Prentice Div., supra, at 479; see also, Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 109-110 (1983); Bombara v. Rogers Bros., 289 AD2d 356 (2nd Dept. 2001). Stated differently, a defective pro
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