Perez v Radar Realty

[*1] Perez v Radar Realty 2005 NY Slip Op 50599(U) Decided on April 5, 2005 Supreme Court, Bronx County Renwick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 5, 2005
Supreme Court, Bronx County

Nathaniel Perez, Plaintiff,

against

Radar Realty, d/b/a NICOLETTE ASSOCIATES, CARLOS MARTINEZ, JUAN ROJAS, HYPOLITO BERRIOS, ELIZABETH YAHIRA MARRERO, STARTLITE PAINT & VARNISH CO. INC. and D & F PAINT CO., INC., Defendants. STARTLITE PAINT & VARNISH CO., INC., Third-Party Plaintiff, AKZO NOBEL COATINGS, INC., Third-Party Defendant.



24414/1998

Dianne T. Renwick, J.

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.[FN1] 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 nondelegable duty to produce a defect free product. Liability is imposed irrespective of fault. "[The] 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. [*2]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 product is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce. Robinson v. Reed-Prentice Div., supra, at 479; see also, Denny v. Ford Motor Co., 87 NY2d 248 (1995); Voss v. Black & Decker Mfg. Co., supra. To establish a strict liability claim based on a defective design, a plaintiff must show that the product as designed posed a substantial likelihood of harm, that it was feasible for the manufacturer to design the product in a safe manner, and that the defective design was a substantial factor in causing plaintiff's injury. See Voss v. Black & Decker Mfg. Co., supra; Gonzalez v. Delta Int'l Mach. Corp., 307 AD2d 1020 (2d Dept. 2003); Ramirez v. Sears, Roebuck & Co., 286 AD2d 428 (2d Dept. 2001).

Here, this Court finds that movant-defendants met their burden of establishing that there is no feasible design alternative to the quick-drying lacquer sealer manufactured by Akzo, distributed by D & F Paint and sold by Startlite. In support of its motion, defendant Akzo submits an affidavit from a chemical engineer, Charles Chomaliu, who is employed by Akzo as a business manager. As explained by defendant's expert, the solvent-based lacquer sealer is by its very nature and composition "highly volatile." It is these"highly volatile" components that produce a "quick drying time." The "highly volatile" components engender some other advantages, according to plaintiff's expert. "It permits a solvent-based sealer to be "commonly used as a first coat to seal, i.e., fill in, voids or cracks in the wood and prevents the top coat from penetrating the wood surface. This sealing action provides a level surface on which to apply a second coat, usually a polyurethane compound."

Furthermore, defendant's expert avers that a water-based sealer is not a feasible design alternative to the quick-drying lacquer sealer manufactured by Akzo. As the expert explains, "water-based sealers do not prevent the top coat from penetrating the wood-surface." Instead, they "raise the wood grain, increase the cost of the finishing process and dramatically increase the drying time between the sealer and top coats by several hours." Further, "[u]nder low humidity weather conditions, one coat of water-based sealer will take approximately three hours to four hours. If, however, the water-based sealer is applied on a humid day, one coat may take upwards of eight hours to twelve hours."

Defendants' submissions indicate the absence of material issues of fact as to whether there are any feasible design alternatives to the quick-drying lacquer sealer manufactured by Akzo. Accordingly, movant-defendants have adequately met their burden of [*3]demonstrating that the cause of action against them based upon the theory of defective design of the lacquer sealer "has no merit." C.P.L.R. §3212(b). See Thompson v. Grumman Aerospace Corp., 78 NY2d 553 (1991); Zabava v. 178 East 78, Inc., 212 AD2d 406, 407 (1st Dept. 1995); Levine v. Lee's Pontiac, 203 AD2d 259, 260-261 (2d Dept. 1994); Seudath v. Mott, 202 AD2d 658, 659 (2d Dept. 1994). Thus, defendants are entitled to judgment as a matter of law, unless plaintiff, in opposing the motion for summary judgment, has demonstrated by admissible evidence the existence of a factual issue requiring a trial of the claims under the theory that the lacquer sealer was defectively designed.

The Court finds, however, that plaintiff has failed to make such a demonstration in this case. In response to defendant's motion and co-defendants' cross motions for summary judgment on the claim of the defectively designed lacquer sealer, plaintiff submits the affidavit of Dr. Frederick L. Dyer, a purported design expert. Dr. Dyer offers two allegedly feasible design alternatives to the quick-drying lacquer sealer manufactured by Akzo. The first alternative described by Dr. Dyer is a "less volatile product with [a] higher flash point." Dr. Dyer, however, fails to explain how it would have been feasible for Akzo to design this less volatile product while retaining the same performance attributes (e.g., quick drying time) as its solvent-based lacquer sealer. Since Dr. Dyer failed to provide a description of this "similar" product, Dr. Dyer's first feasible alternative is based upon mere speculation. Thus, this vague, speculative and conclusory assertion of a "less volatile product with a higher flash point," is insufficient to defeat summary jugdment.

Dr. Dryer's second alternative is equally unavailing. The second feasible design alternative to the quick-drying lacquer sealer manufactured by Akzo is a "water-based product." However, plaintiff's expert acknowledges that "the finish resulting from a water-based product may be less smooth and/or less hard and /or durable" and that "the drying time may be longer with water-based product." Thus, plaintiff's expert fails to establish that the water-based product offers the same results as those from solvent-based lacquer sealers using alternative fluids. Nor does the expert refute the fact that the very nature of the quick-drying lacquer sealer necessitates that it contains a highly flammable solvent.

Significantly, in Felix v. Akzo Nobel Coatings Inc., 262 AD2d 447 (2nd Dept. 1999), the Appellate Division, Second Department rejected the same argument made by a different plaintiff against the same defendant herein, that a safer-feasible alternative to Akzo's solvent-based lacquer sealer was available. Specifically, like here, the plaintiff argued that a safer alternative was available, to wit, a water-based lacquer sealer, although these take hours longer to dry. However, the plaintiff's own expert conceded at his deposition that there was no way to make a quick-drying lacquer sealer offering the same results as those from solvent-based lacquer sealers using alternative fluids and that the very nature of the quick-drying lacquer sealer necessitates that it contains a highly flammable solvent. He further conceded that nothing could be introduced to the formula to make it safer without creating an entirely different product. Under the circumstances, the court found that the quick-drying, solvent-based lacquer sealer was not defectively designed, as a volatile solvent in the sealer was critical to the product's performance. Id. [*4]

Nothing in this case has been offered that mandates a different result from that rendered in Felix v. Akzo Nobel Coatings Inc., supra, with regard to the quick-drying lacquer sealer manufactured by Akzo, distributed by D & F Paint and sold by Startlite. Under the standards set forth by the Court of Appeals for determining the existence of a design defect, see, Liriano v. Hobart Corp., 92 NY2d 232, 239 (1999); Denny v. Ford Motor Co., 87 NY2d 248, 257 (1995); Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 108 (1983), Robinson v. Reed-Prentice Div., 49 NY2d 471, after movant-defendants made out a prima facie case for summary judgment, plaintiff has failed to raise any triable issues of fact. Accordingly, summary judgment must be granted to defendants Akzo, D & F Paint and Startlite, insofar as the complaint sought to recover damages based upon the theory that the lacquer sealer was defectively designed.

B.

The Court next examines the motion and cross motions by defendants for a dismissal of the claims based upon the theory of inadequate warnings.

Plaintiff argues that movant-defendants are liable for product liability because the lacquer sealer did not adequately warn users, namely because the warning labels did not include detailed information on how to properly ventilate a room before use. Defendant Akzo argues that it met its duty to warn under the bulk supplier doctrine,[FN2] while D & F Paint argues that it met its duty to warn under the Federal Hazardous Substance Act, 15 U.S.C. 1261.[FN3] Plaintiff disputes whether the bulk supplier doctrine applies to this case, so as to limit defendant manufacturer's duty to warn its distributor, D & F Paint Co. Inc. Plaintiff, however, does not dispute that the FHSA label requirements preempt common law failure to warn and inadequate label claims. What plaintiff disputes is whether defendants complied with FHSA. This Court, however, does not have to address the applicability of the bulk supplier doctrine. Nor does this Court have to address whether defendants complied with FHSA labeling requirements. Such issues are rendered moot by this Court's finding that plaintiff cannot establish that the absence of adequate warnings proximately caused his injuries.

It is well settled that the manufacturer of a product cannot be held liable for failing to provide adequate warnings regarding the use of a product unless it is established that the manufacturer's failure to warn is the proximate cause of the plaintiff's injuries. Cramer v. Toledo Scale Co., 158 AD2d 966 (4th Dept. 1990). Liability may be premised on the absence of warnings as to a particular hazard of their product or on the insufficiency of the warnings provided. Sosna v. American Home Products, 298 AD2d 158 (1st Dept. 2002). [*5]

To satisfy the causation element of a failure to warn claim, plaintiff must show that if adequate warnings had been provided, the product would not have been misused. See Banks v. Makita, U.S.A., 226 AD2d 659 (2nd Dept. 1996). Accordingly, a claim of failure to warn must be properly dismissed where the plaintiff has made no showing of causation. Id. For instance, causation will be lacking where a manufacturer's warning would have been superfluous, given an injured party's actual knowledge of a specific hazard that caused the injuries or where a warning would have added nothing to the use or appreciation of the danger. See Liriano, 92 NY2d 232, 241.

Similarly, an injured party, who admittedly did not read warnings on a product, cannot establish, in a products liability action, that the manufacturer's inadequate warning was the proximate cause of his injuries. For example, in Sosa v. American Home Products, 298 AD2d 158 (1st Dept. 2002), a products liability action based upon a manufacturer's alleged inadequate warnings was dismissed where evidence established that any design defects or inadequate instructions and warnings were not substantial factors in causing the consumer's injuries. Specifically, the deposition testimony made clear that the injured plaintiff had not read defendant manufacturer's warnings until after he had stopped using its product and sustained the complained of injury.

Likewise, in Guadalupe v. Drackett Products Company, 253 AD2d 378 (1st Dept. 1998), the Appellate Division held that any design defects or inadequacies in the labeling of a can of powdered drain cleaner were not substantial factors in causing the consumer's injuries. Specifically, the manufacturer was not liable under a design defect or inadequate labeling theory for injuries suffered by a consumer when she mixed a large amount of drain cleaner and hot water in a glass jar, causing a violent eruption which burned her chest and neck, where the consumer made no attempt to read the label or to obtain assistance before using the drain cleaner. Id.

In this case, plaintiff has failed to meet his burden of adducing proof that plaintiff and his co-worker read and heeded the label/warning instructions that accompanied the lacquer sealer. For instance, during his testimony, plaintiff Nathaniel Perez never averred that he ever read the labeling instructions. Instead, he candidly admitted that he simply relied upon the instructions provided by his employer, defendant Juan Rojas, who informed him to be careful about the product because it was "flammable." He took the instructions to mean that the material was dangerous and should not be near anything that was flammable. With regard to plaintiff's co-worker, Carlos Martinez, plaintiff presented no evidence in the form of an affidavit or deposition testimony on the use of warnings, despite plaintiff's burden to do so. See Sosna v. American Home Product, 298 AD2d 158 (1st Dept. 2002). Thus, there is no evidence as to whether plaintiff's co-worker would have read and heeded the labeling instructions that accompanied the product. Finally, plaintiff's employer, Juan Rojas, attested that it was not customary for him to heed or read the product's labeling instructions. On the contrary, he candidly admitted that he only read them once in 1979, more than 20 years before the accident in question. Nor did he provide plaintiff or his co-worker any instructions about ventilation while using the lacquer sealer because he assumed that they knew what to do.

Under the circumstances, it is abundantly clear that the element of causation is missing from the claims of inadequate warnings. The evidence adduced fails to establish that if adequate [*6]warnings had been provided, the lacquer sealer would not have been misused. See Banks v. Makita USA, 226 AD2d 659 (2nd Dept. 1996). Any such inference from the record on these motions would be pure speculation. Accordingly, the claims of inadequate warnings with regard to the lacquer sealer must be dismissed, absent proof that the absence of adequate warnings proximately caused plaintiff's injuries. Cf. Sosa v. American Home Products, supra; Guadalupe v. Drackett Products Company, supra.

C.

The Court next examines that part of defendant Startlite's cross motion for summary judgment dismissing the claims under the theory that a defectively designed polyurethane was a contributing factor to plaintiff's injuries.

Defendant moves to dismiss such claim on the ground that plaintiff cannot establish that its product (polyurethane) was a source of the fire that caused plaintiff's injuries. As noted above, under the doctrine of strict products liability, a manufacturer of a defective product is liable to any person injured or damaged only if the defect was a substantial factor in causing the injury or damages. Codling v. Paglia, 32 NY2d 330; Voss v. Black & Deckler MFG Co, 59 NY2d 102 (1983).

In support of its motion, defendant Startlite submits an affidavit from Angelo Pisan, Jr. PhD., a forensic fire investigation consultant. Based upon his personal knowledge of the chemical components of polyurethane, as well as his review of the testimony of plaintiff and Melendez, the tenant of the subject apartment, with regard to their description of the fire, Pisan opines that the fire cannot be attributed to the polyurethane. Instead, Pisan opines that the source of the fire was the vapors that emanated from the lacquer sealer. As explained by the expert, vapors from lacquer sealers are capable of violent flash fire, as described by the witnesses to the accident. Polyurethane, on the other hand, is not a highly flammable liquid since it has a flash point of 106. This means that the ambient temperature needs to be above 106 for the liquid to vaporize at a rate sufficient to support a combustion. Since there is no evidence that the subject apartment had a temperature above 106 at any time before the fire, it cannot be said that the polyurethane was a source of the fire, Pida concludes.

Based upon the foregoing proof, defendant Startlite met its burden of establishing that it cannot be found liable for plaintiff's injury, sufficient to warrant the Court as a matter of law to direct judgment in its favor on a claim for strict liability as a manufacturer and seller of defectively designed polyurethane. See e.g. Scheer v. Koubek, 70 NY2d 678, 679 (1987); Licari v. Elliott, 57 NY2d 230, 236 (1982); Garson v. Dowd, 143 AD2d 113 (2nd Dept. 1988); Palmer v. Amaker, 141 AD2d 622 (2nd Dept. 1988); Benitez v. Sexton, 139 AD2d 686 (2nd Dept. 1988). Thus, defendant Startlite is entitled to judgment as a matter of law, unless plaintiff has demonstrated by admissible evidence the existence of a factual issue requiring a trial of such claim. This court finds that plaintiff has failed to meet his burden. Indeed, in his opposition to defendant's cross motion, plaintiff candidly concedes that he has never attempted to establish that the cause of the fire was due to any defect in the polyurethane. Instead, plaintiff avers that liability against defendant Startlite is [*7]sought solely as the seller of the lacquer sealer.

Conclusion

For the foregoing reasons, it is hereby

ORDERED that the motion and cross motions by defendants for summary judgment, seeking a dismissal of the product liability claims asserted against them, based upon the theory that the lacquer sealer manufactured by defendant Akzo, distributed by defendant D & F Paint and sold by defendant Startlite, was defectively design, are granted, such defective design claims asserted against defendant Akzo, defendant D & F Paint and defendant Startlite, are hereby severed and dismissed, and the clerk is directed to enter judgment in favor of the aforementioned defendants with regard to such claims; it is further

ORDERED that the motion and cross motions by defendants for summary judgment, seeking a dismissal of the product liability claims asserted against them, based upon the theory that the lacquer sealer manufactured by defendant Akzo, distributed by defendant D & F Paint and sold by defendant Startlite, contained inadequate warnings, are granted, such inadequate warnings claims asserted against defendant Akzo, defendant D & F Paint and defendant Startlite, are hereby severed and dismissed, and the clerk is directed to enter judgment in favor of the aforementioned defendants with regard to such claims; it is further

ORDERED that the cross motion by defendant Startlite for summary judgment, seeking a dismissal of the product liability claims asserted against it, based upon the theory that the polyurethane manufactured and sold by defendant Startlite was defectively designed, is granted, such defective design claim asserted against defendant Startlite is hereby severed and dismissed, and the clerk is directed to enter judgment in favor of the aforementioned defendant with regard to such claim.

This constitutes the Decision and Order of the Court.

Dated: April 5, 2005__________________________

Bronx, New York Hon. Dianne T. Renwick, J.S.C. Footnotes

Footnote 1: Plaintiff sues several other defendants, none of whom is implicated in the instant motion and cross motions.

Footnote 2: The "bulk supplier doctrine" limits the duty of bulk suppliers to warn a manufacturers's distributees and not the ultimate consumer. See Polimeni v. Minolta Corp., 227 AD2d 64 (3rd Dept. 1997).

Footnote 3: The Federal Hazardous Substance Act, 15 U.S.C. §1261, prescribes certain labeling requirements with regard to "hazardous substances." While FHSA preempts state law, a plaintiff may bring a failure to warn for noncompliance with the labeling provisions of FHSA. See Sabbatino v. Rosin & Sons Hardware & Paint, Inc., 253 AD2d 417 (2nd Dept. 1998).