Martin v Chuck Hafner's Farmers Mkt., Inc.
Annotate this CaseDecided on June 27, 2005
Supreme Court, Onondaga County
David Martin and Sue Martin, his wife, Plaintiffs,
against
Chuck Hafner's Farmers Market, Inc., Doing Business As Chuck Hafner's Farm Market and Garden Center, Henry White and Cross Lake Farms, Inc., Defendants.
03-2113
SIDNEY P. COMINSKY, ESQ.
SIDNEY P. COMINSKY, P.C.
Attorneys for Plaintiffs
109 South Warren Street, Syracuse, NY 13202
MICHAEL S. PORTER, ESQ.
HISCOCK & BARCLAY, LLP
Attorneys for Defendants Chuck Hafner's
Farmers' Market, Inc. d/b/a Chuck
Hafner's Farm Market and Garden Center
P.O. Box 4878, Syracuse, NY 13221-4878
JAMES J. GASCON, ESQ.
COSTELLO, COONEY & FEARON, PLLC
Attorneys for Defendants Henry White and Cross Lake Farms, Inc.
205 South Salina Street, Syracuse, NY 13202-1327
John V. Centra, J.
On June 27, 2002, Plaintiff Sue Martin purchased two bales of straw from Defendant Chuck Hafner's Farmers Market, Inc., Doing Business As Chuck Hafner's Farm Market and Garden Center [*2](hereinafter "Hafner's"). The next day, Plaintiff David Martin (hereinafter "David") unwrapped the straw and spread it on their property. According to David, the straw was grey, tightly compacted, and had a black powdery substance in the center of the bales measuring about one foot in diameter. Plaintiffs' expert later determined the black substance was mold, specifically Aspergillus fumigatus.
David contends that when he tore the straw bale apart into sections, the straw was so compacted that he had to shake it to separate the stalks. When he did this, the black powdery substance flew out of the straw. David assumed that the straw was old but did not realize that the mold was dangerous or that, if inhaled, it could cause severe respiratory injury, and, therefore, he did not use any protective gear such as a face mask. The day after he spread the straw, he started coughing excessively and his condition worsened over the next number of days.
Plaintiffs commenced the above-captioned action to recover personal injury damages allegedly suffered by David, and derivatively his wife Sue, as a result of exposure to mold that was purportedly in straw sold to Plaintiffs by Hafner's. Plaintiffs' causes of action seek damages for a failure to warn, strict products liability, negligence, violations of the Uniform Commercial Code (hereinafter "UCC"), and violations of the Agriculture and Markets Law. Plaintiffs conceded at oral argument that they have no cause of action under the Agriculture and Markets Law. Accordingly, the sixth cause of action is dismissed with prejudice.
Plaintiffs have brought an application before this court seeking partial summary judgment on liability against Hafner's on the causes of action for breach of the implied warranty of merchantability and breach of the implied warranty of fitness for a particular use (UCC §§ 2-314 and 2-315). Cross Lake and Hafner's have each brought a cross-motion for summary judgment dismissing the complaint.
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AGAINST HAFNER'S
Plaintiffs contend that they relied on Hafner's to choose straw bales that were of merchantable quality and free from contamination and that the straw failed in that regard; Hafner's has admitted that spreading straw as landscaping cover is an ordinary and foreseeable use for straw; and Hafner's representative stated that consumers do not reasonably expect straw bales to contain black mold and that straw which does contain black mold is not merchantable. Hafner's received the straw from Defendants Henry White and Cross Lake Farms, Inc. (hereinafter collectively "Cross Lake"). Plaintiffs argue that, as a result of the exposure to the mold, David developed severe respiratory problems, including allergic bronchopulmonary aspergillosis and asthma.
Plaintiffs further contend that Hafner's knew or should have [*3]known of the serious danger that black mold presents to the respiratory system because these dangers are made known to all who sell agricultural products by those who regulate the industry. Plaintiffs argue that OSHA, the Farm Safety Association, and the National Ag Safety Database all have issued warnings regarding the dangers of moldy hay and straw. Further, Plaintiffs maintain that the industry has developed a means to test the straw while it is still baled by using a "moisture meter" which measures the internal moisture content of straw bales to ensure safe and acceptable moisture levels without dismantling the bales. Plaintiffs allege that Hafner's took no precautions such as testing the bales with a moisture meter.
Plaintiffs argue that Hafner's expressly warrants in its advertisement that its straw is guaranteed to be the best quality and condition. However, according to Plaintiffs, the evidence demonstrates that the straw sold to Sue was quite old and contained black mold at the time of sale. A representative of Cross Lake, the company which produced the straw, testified that it had been harvested in 2001, nearly one year before Hafner's sold it to Sue. Hafner's allegedly stored its straw bales in an uncovered straw wagon, exposed to the elements. Plaintiffs argue that Hafner's did not check the moisture content in its straw bales, nor did it require Cross Lake to do so.
Hafner's opposes this motion contending that the bales of straw were not defective under either the theory of a breach of implied warranty of merchantability or a breach of implied warranty of fitness. Hafner's contends that there is no allegation that the straw's performance as a ground covering was somehow compromised by the alleged existence of mold on the inside core of the bales. Further, Hafner's maintains that courts have refused to extend liability to a retail seller in a case where the subject product was organic and the latent defect alleged was the result of a naturally occurring the composition process. In addition, Hafner's argues that Plaintiffs have not proven that the alleged mold in the straw was a proximate cause of David's injury. Last, Hafner's argues that our courts have refused to render a retail seller of a product liable for injuries sustained by a consumer of that product when the injuries are the result of an "unusual allergic reaction" citing Kaempfe v. Lehn & Fink Products Corp., 21 AD2d 197 (1st Dep't 1964), aff'd 20 NY2d 818 (1967).
This Court finds Kaempfe v. Lehn & Fink Products Corp. to be inapplicable to these causes of action. In Kaempfe, the Plaintiff alleged that she had an allergic reaction to aluminum sulfate, one of the ingredients in the deodorant manufactured by Defendant. In that case, the alleged allergen was deliberately placed in the product and there was no allegation that Defendant was negligent in manufacturing that product. Here, in contrast, mold was not deliberately placed in this product. Rather, by all accounts, including those of Hafner, a great quantity of mold in the straw would render the straw not merchantable.
UCC §2-314 provides that "a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." In order for goods to be merchantable, they must be at least such as, in relevant part, "(a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of [*4]fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used". In this case, there is no question that Hafner's is a merchant with respect to the straw that was sold to Plaintiffs.
Although this court has not been able to find any case law in New York on the issue of whether mold in straw renders the product not fit for the ordinary purposes for which it was to be used or "that a latent defect in an organic product like the subject straw renders the product 'defective' as a matter of law"[FN1], a case from the Supreme Court of Iowa is instructive. See Dotts v. Bennett, 382 N.W.2d 85 (S.Ct. Iowa 1986). The plaintiff in the Dotts case purchased hay to feed his cattle from a farmer who, on a yearly basis sold between 10% and 20% of his hay to other farmers. Plaintiff's veterinarian determined the origin of the illness of Plaintiff's cattle to be Defendant's hay which was infected with mycotoxin, a chemical byproduct of mold. One of the questions before the lower court was whether the implied warranty of merchantability was breached. The jury found for Plaintiff on the issue of a breach of the implied warranty of merchantability. The Iowa Supreme Court reversed the lower court, not on the issue of whether there was a breach of the warranty of merchantability, but rather whether Defendant was a "merchant with respect to goods of that kind". Further, the Court determined that the jury instruction was inadequate regarding the issue of whether the definition of merchant applies to a casual or inexperienced seller.
This Court finds that a breach of the warranty of merchantability is a proper cause of action under the facts at bar. However, despite the fact that Plaintiff's experts have opined that Plaintiff suffered an allergic reaction to the mold in the straw, Defendants' expert, Ernest L. Sweet [FN2], a board certified industrial hygienist and a certified microbial consultant, examined the straw in question, took representative samples from various areas of the straw bale, and determined that Plaintiff did not have a significant inhalation exposure to the mixture of specific fungi species contained in the straw, thus bringing into question whether Plaintiff's exposure to the allegedly moldy straw was a proximate cause of his injury. Mr. Sweet also states that Aspergillus fumigatus is a naturally occurring environmental fungi contained in mulch, soils and grass seed. As such, he opines that it was not clear that Plaintiff's inhalation of Aspergillus fumigatus came from the one-time and short duration associated with the spreading of approximately one and one-half bales of hay.
Based on Mr. Sweet's affidavit, this Court finds that there is a question of fact as to whether the straw that was sold was not fit for the ordinary purposes for which it was to [*5]be used in this case. Therefore, Plaintiff's motion for summary judgment on this cause of action is denied.
As to the cause of action under UCC §2-315, "[f]or an implied warranty of fitness for a particular purpose claim to arise, the buyer must establish that the seller had reason to know, at the time of contracting, the buyer's particular purpose for which the goods are required and that the buyer was justifiably relying upon the seller's skill and judgment to select and furnish suitable goods, and that the buyer did in fact rely on that skill". Saratoga Spa & Bath, Inc. v. Beeche, 230 AD2d 326, 331 (3rd Dep't 1997). Plaintiffs have not presented any proof that Sue discussed with the employees of Hafner's the particular purpose for which she was purchasing the straw. In this case, the straw was to be used for its ordinary purpose as opposed to a particular purpose. Thus, Plaintiff's motion for summary judgment on their cause of action seeking damages for a breach of implied warranty of fitness for a particular purpose is denied and that cause of action is dismissed. See UCC §2-315, Comment 2.
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENTCross Lake harvested the crop of straw for sale and delivery in July 2001. After harvesting, the straw was stored in an unheated, porous barn with a steel roof. Some of the straw was delivered to customers during 2001 and the remainder was sold and delivered in the spring of 2002 after being stored in Cross Lake's barn over the winter months. Cross Lake was the exclusive supplier of straw to Hafner's at the time of David's injury and had been for approximately ten years prior to that date.
Plaintiffs allege that the straw was gray in color and had a black powdery substance in the center. However, Mr. Sweet observed the straw used by David to be yellow in color and did not observe or identify any black powdery substance in the bale of straw. Hafner's has not received any other complaints from any other customers regarding the straw delivered by Cross Lake on that date. Neither Hafner's nor Cross Lake noticed any problems with the quality of straw provided.
Defendants contend that David has a defined hypersensitivity to mold and sustained an unusual allergic reaction to the Aspergillus fumigatus contained in the bale of straw he purchased. They argue that if David's injuries were sustained as a result of his allergy to the product or to its ingredients, no right of action exists in favor of Plaintiffs on any theory of negligence in manufacture, distribution or use. Defendants maintain that a person who sustains harm due solely to an unusual hypersensitivity to a reasonably safe product may not recover against the seller or manufacturer on such theories of liability. Further, Defendants argue that a plaintiff cannot recover for negligence, breach of implied warranty or failure to warn where he is one of only a small number of people to the total number using the product to sustain an allergic reaction after his use of the product.
It is Defendants' burden, upon their motions for summary judgment, to affirmatively demonstrate the merits of their defense. They can not meet that burden by pointing out the deficiencies in the non-moving party's case. Swimm v. Bratt, 15 AD3d 967 (4th Dep't 2005). This court finds that Defendants have failed to meet their burden of proof to come forth with affirmative evidence that they were not negligent or that the straw that was eventually sold to Plaintiffs did not contain the mold that Plaintiffs allege was in the straw at the time that it was purchased. Therefore, Defendants' motions dismissing the negligence and strict products liability [*6]causes of action are denied.
Mark J. Utell, M.D.[FN3], Defendants' expert, states that, given the presence of particular antibodies in David's blood, it is likely that Plaintiff had a pre-existing sensitivity to the fungus and an allergic predisposition to the fungal spores. He has opined that David's acute respiratory illness would not have resulted but for some pre-existing sensitization to the Aspergillus organism which developed some time prior to his exposure to the bales of straw and that David's allergic reaction is extremely unusual in the general population.
Defendants argue that the complaint must be dismissed because David sustained harm due to solely to his unusual hypersensitiveness to a reasonably safe product. They maintain that where an allergy is common to a substantial number of users, the seller could be required to give a warning of the danger; however, the manufacturer will not be liable where the Plaintiff had an unknown, pre-existing condition not discovered until using the product. This Court agrees that a "manufacturer has no special duty to warn the unknown few potential users who might suffer some allergic reaction not common to the normal person." Kaempfe v. Lehn & Fink Products Corp., 21 AD2d at 199, 20 NY2d 818, 819. In this case, Defendants have demonstrated that David had an allergic reaction that was not common to the population at large, and of which he, himself, had no knowledge. Therefore, based on the facts of this case, the cause of action for negligence due to failure to warn must be and hereby is dismissed.
This court has already determined that there is a question of fact regarding the cause of action for violation of UCC §2-314. Therefore, Defendants' motions to dismiss the cause of action based on that statute are denied. Also, as previously stated, Defendants' motions to dismiss the cause of action based on UCC §2-315 are granted as are the motions to dismiss the cause of action based on a violation of the Agriculture and Markets Law. Accordingly, the causes of action remaining for resolution at trial are for negligence, strict products liability, and violation of UCC §2-314.
Plaintiff is to submit an Order on notice.
JOHN V. CENTRA
Supreme Court Justice
Dated: June 28, 2005
Syracuse, New York
Footnotes
Footnote 1:See Memorandum of Law submitted by Hafner's, p. 9.
Footnote 2:Plaintiffs object to the consideration of any evidence of Ernest Sweet that is based upon his inspection of Cross Lake's barn. The court finds that Plaintiffs' remedy was to seek the court's intervention to adjourn these motions to obtain sufficient time to inspect the barn or arrange to have it inspected by an expert. No such request was made of the court.
Footnote 3:Plaintiffs object to the consideration of any affirmative use of any evidence of Mark J. Utell, M.D. due to the untimely disclosure of his report. The court finds that Plaintiffs' remedy was to seek the court's intervention to adjourn these motions to obtain sufficient time to obtain a responding affidavit. No such request was made of the court.
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